A MARTÍNEZ, HOST:
The U.S. Supreme Court has allowed the Trump administration to begin executing its ban on transgender military service members, at least for now. Joining us to talk about this is NPR legal affairs correspondent Nina Totenberg. Now, Nina, President Trump has been trying to ban transgender troops in the military since his first administration. What's the difference between then and now?
NINA TOTENBERG, BYLINE: In the first Trump term, he partially succeeded, but the ban was reversed by President Biden, only to be put back in place by Trump after he took office for a second term. This new order mimics the Trump order from the first administration and appears to strengthen it, as well, barring transgender individuals from enlisting and discharging active duty transgender service members.
MARTÍNEZ: All right, so what did the Supreme Court do yesterday?
TOTENBERG: In a one-paragraph unsigned order, the justices revive the transgender ban, which had been temporarily blocked by the lower courts. The court's three liberal justices - Kagan, Sotomayor and Jackson - noted their dissents and would have barred the administration from putting the ban in place while the case continues to be litigated in the lower courts. So the case now goes back to the 9th Circuit Court of Appeals for the Trump policy to be reviewed.
MARTÍNEZ: You know, there's been a lot of back-and-forth in this case since 2016. That's when the Obama administration first allowed openly trans individuals to serve in the military. So how is the new policy different?
TOTENBERG: The Obama policy was reversed by Trump in 2017, followed by new rules issued by then Defense Secretary James Mattis. The Mattis rules allowed exceptions to the ban for active service members previously diagnosed with gender dysphoria. But the new policy, the Trump two policy, is significantly tougher because it bars from the military anyone with a gender dysphoria diagnosis. And while that isn't everyone, it is most trans individuals.
MARTÍNEZ: Now, where are things now?
TOTENBERG: The 9th Circuit Court of Appeals will take a whack at deciding the issue, and that decision can be appealed to the Supreme Court, though the ban is likely to remain in place during the appellate process.
MARTÍNEZ: Alright, so let me cut to the chase here. What are the chances that the Supreme Court will ultimately rule against the Trump trans ban in the military?
TOTENBERG: Probably slim to none. The fact is that the Supreme Court, even on a temporary basis, has allowed the Trump administration to proceed with carrying out the ban. And that's a pretty strong indicator that the administration is very likely to prevail in the long run.
MARTÍNEZ: When it comes to the numbers of people, how many trans individuals are in the military right now under the policy that allowed them to enlist and serve?
TOTENBERG: According to the Pentagon, about 0.2% of active military forces - or about 4,000 individuals.
MARTÍNEZ: So Nina, I'm wondering, who are the plaintiffs that brought this challenge?
TOTENBERG: They are a group of current and aspiring transgender service members, including lead plaintiff Emily Shilling, a Navy pilot who's flown more than 60 combat missions over her nearly two decades of military service. Ruling in their favor, Judge Benjamin Settle in Washington state, who's a George W. Bush appointee, concluded that the government's classification of gender dysphoria as a disqualifying medical condition was essentially a ruse motivated by hostility towards transgender people.
MARTÍNEZ: So safe to say that the Supreme Court will eventually actually rule on this?
TOTENBERG: Probably the case will come back to the court next term for a final ruling, regardless of who wins in the 9th Circuit.
MARTÍNEZ: All right. That's NPR's Nina Totenberg. Nina, thanks.
TOTENBERG: My pleasure. Transcript provided by NPR, Copyright NPR.
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