# Supreme Court allows military transgender ban to take effect **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [January 22, 2019, 3:02pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197 "2019-01-22T15:02:05Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 22, 2019, 3:02pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/1 "2019-01-22T15:02:05Z")
> **[U.S. top court lets Trump transgender troop restrictions take effect](https://news.yahoo.com/u-top-court-lets-trump-143204077.html?.tsrc=notification-brknews)** > > The U.S. Supreme Court on Tuesday let President Donald Trump enforce his policy barring certain transgender people from joining or staying in the military as the justices put on hold lower court rulings blocking the plan on constitutional grounds. ... 5-4 vote lifting a District Court injunction against the Trump transgender ban policy. As a matter of law, I think it is unquestionably correct, and I strain to see the argument against it. A person’s transgendered status is not a protected element of any civil rights law. The President is the CiC of the military. Absent a law to the contrary, he should be free to enact this policy. If there are reasons not to have this policy, and I’m sure that good intentioned people can think of many, then you work in a democracy to pass these laws, or the next President can reverse course. But I think it is dangerous to allow the courts to become the de facto CiC by making these sorts of decisions. ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [January 22, 2019, 3:43pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/2 "2019-01-22T15:43:02Z")
It is, however, a fucking stupid practice to eject people willing and physically and mentally able to serve their country for what is an entirely bigoted reason. Back in the Gulf War days the military kicked out a bunch of Arabic translators for being gay at a time when Arabic translators were desperately needed. The practice of discriminatory exclusion for reasons other than specific detriment to the military ultimately ends up weakening the military, not strengthening it. I can understand the rationale behind the military’s unwillingness to allow (and particularly to fund) people to transition while in service, but anyone already transitioned should not be excluded. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 22, 2019, 7:20pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/3 "2019-01-22T19:20:53Z")
> [@UltraVires](#): > > But I think it is dangerous to allow the courts to become the de facto CiC by making these sorts of decisions. So you’re okay with the Supreme Court’s decision because it kept the Supreme Court from making the decision. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 22, 2019, 7:27pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/4 "2019-01-22T19:27:55Z")
I think it’s the right call because it doesn’t make sense to allow people to join before the matter is finalized. It is still being worked through the lower courts. This is not the final answer by a longshot. I’m not sure how long it will take but it is at the appellate level now. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 22, 2019, 7:28pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/5 "2019-01-22T19:28:12Z")
> [@Little\_Nemo](#): > > So you’re okay with the Supreme Court’s decision because it kept the Supreme Court from making the decision. No, because it reversed the lower court decision which intruded on the President’s powers. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [January 22, 2019, 9:43pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/6 "2019-01-22T21:43:21Z")
What? No, this is bad law. The case is currently being adjudicate. As such, to avoid irreparable harm, the case should remain at the status quo before the case was seen. If you want to argue that the President should have the power to ban trans people in the military in the circumstances given, that’s one thing. But that doesn’t mean refusing the injunction while the case is being adjudicated. It’s possible the actual decision will include better reasoning, of course. But I’m going by what **UltraVires** has said. He’s focusing on all the wrong parts of what is relevant at this point in the proceedings. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 22, 2019, 11:04pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/7 "2019-01-22T23:04:37Z")
> [@BigT](#): > > What? No, this is bad law. The case is currently being adjudicate. As such, to avoid irreparable harm, the case should remain at the status quo before the case was seen. > > If you want to argue that the President should have the power to ban trans people in the military in the circumstances given, that’s one thing. But that doesn’t mean refusing the injunction while the case is being adjudicated. > > It’s possible the actual decision will include better reasoning, of course. But I’m going by what **UltraVires** has said. He’s focusing on all the wrong parts of what is relevant at this point in the proceedings. Well, no, because that assumes that a plaintiff is entitled to relief upon filing a case. Moreover, let’s put this issue aside and just say that any president wants to enact executive order X. Anyone that is against executive order X can forum and judge shop by going to any one of the 673 District Courts in the country and find the most conservative or liberal one as the issue dictates and get a nationwide injunction. If you follow the ordinary appellate procedure, one can almost run out the clock on any presidential directive given a 4 year term. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 23, 2019, 12:22am UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/8 "2019-01-23T00:22:47Z")
> [@UltraVires](#): > > No, because it reversed the lower court decision which intruded on the President’s powers. Someone once wrote that if you think we should have a law “then you work in a democracy to pass these laws”. So why do you favor the President setting policy by issuing an executive order or the Supreme Court upholding that policy by issuing a decision? Congress should be setting our policies by enacting laws. Your position seems to be that the President and the courts should have power to set policies you agree with and not have power to set policies you disagree with. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 23, 2019, 4:52pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/9 "2019-01-23T16:52:08Z")
> [@Little\_Nemo](#): > > Someone once wrote that if you think we should have a law “then you work in a democracy to pass these laws”. So why do you favor the President setting policy by issuing an executive order or the Supreme Court upholding that policy by issuing a decision? Congress should be setting our policies by enacting laws. > > Your position seems to be that the President and the courts should have power to set policies you agree with and not have power to set policies you disagree with. This isn’t a law, it is an executive order, and one made in pursuance of the President’s power as CiC. Truman issued a similar order when he banned segregation in the military and every presidents did this before with the ban on gays in the military until 1993. Congress, of course, has similar powers until the “raise and support armies” clause. You’ll recall that Bill Clinton pledged to end the ban on gays in the military when he campaigned. After the blowback, he hedged and went to Congress which passed Don’t Ask Don’t Tell. Then Congress again repealed Don’t Ask Don’t Tell in 2009. So, yeah, it is well settled that presidents have this power. It is an executive function and typically not part of the ordinary lawmaking process. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [January 23, 2019, 4:56pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/10 "2019-01-23T16:56:50Z")
> [@UltraVires](#): > > Congress, of course, has similar powers until the “raise and support armies” clause. You’ll recall that Bill Clinton pledged to end the ban on gays in the military when he campaigned. After the blowback, he hedged and went to Congress which passed Don’t Ask Don’t Tell. Then Congress again repealed Don’t Ask Don’t Tell in 2009. > > So, yeah, it is well settled that presidents have this power. It is an executive function and typically not part of the ordinary lawmaking process. That’s a terrible example of executive power, because both DADT and its repeal were considered by Congress. Just pointing out the obvious! ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 23, 2019, 6:35pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/11 "2019-01-23T18:35:07Z")
> [@UltraVires](#): > > This isn’t a law, it is an executive order I understand that. It was the point I was making. Do I really need to explain it for you? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 23, 2019, 7:42pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/12 "2019-01-23T19:42:57Z")
> [@Little\_Nemo](#): > > I understand that. It was the point I was making. Do I really need to explain it for you? Perhaps I need to explain it to you: Presidents are allowed to make executive orders. Those don’t need to be passed as laws as we were taught in School House Rocks. ---
**Author:** ![jackdavinci](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackdavinci/32/3259_2.png) [@jackdavinci](https://boards.straightdope.com/u/jackdavinci)\ **Post date:** [January 23, 2019, 7:55pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/13 "2019-01-23T19:55:30Z")
I don’t know much about this but it does seem kind of odd. If they were just rulng on the injunction, that means there are other legal battles still in progress. It seems like a really disruptive order to let go forward before that’s all settled. On top of that, I just don’t get the rationale behind the order itself. It’s one thing, if there’s already a rule against TG and the services are as usual, afraid to change the status quo. There’s a certain amount of feet dragging to be expected with built in inertia, even if it’s not the best outcome. But if TG is already intrgrated into the military and doing fine, what’s the sense in back pedaling at this point? ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [January 23, 2019, 7:56pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/14 "2019-01-23T19:56:39Z")
> [@jackdavinci](#): > > On top of that, I just don’t get the rationale behind the order itself. It’s one thing, if there’s already a rule against TG and the services are as usual, afraid to change the status quo. There’s a certain amount of feet dragging to be expected with built in inertia, even if it’s not the best outcome. But if TG is already intrgrated into the military and doing fine, what’s the sense in back pedaling at this point? Bigotry. There’s no basis aside from bigotry, and the politics of bigotry. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [January 23, 2019, 8:00pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/15 "2019-01-23T20:00:52Z")
> [@UltraVires](#): > > Perhaps I need to explain it to you: **Presidents are allowed to make executive orders.** Those don’t need to be passed as laws as we were taught in School House Rocks. You’d never know it based on Obama’s two terms. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 23, 2019, 8:26pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/16 "2019-01-23T20:26:41Z")
> [@UltraVires](#): > > Perhaps I need to explain it to you: Presidents are allowed to make executive orders. Those don’t need to be passed as laws as we were taught in School House Rocks. I guess I do need to explain it. This is what you said in the OP: > [@](#): > > If there are reasons not to have this policy, and I’m sure that good intentioned people can think of many, then you work in a democracy to pass these laws Those are words you wrote. That’s you saying that policy of transgendered people serving in the military should be set by law. Laws are enacted by Congress. According to your own words, nobody else should be setting this policy. But that’s not what happened. What happened was the President set the policy by issuing an executive order. According to the principle you just claimed to believe in, he was wrong to do that. You said Congress should set the policy and the President is not Congress. So according to the principle you claim to believe in, the courts did the right thing by suspending the executive order. You said the policy shouldn’t be set by executive order. But you took the opposite view. You say the President’s action was correct and you support it. Normally, I might ascribe this to hypocrisy. But it’s difficult to believe you would knowingly mangle up your argument that badly in a single post. So I assume you don’t see the contradiction in your post. Which leads me to the unavoidable conclusion that you don’t understand the principle that you declared you support. Because the principle you claim to support would lead to the opposite of the position you hold. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [January 23, 2019, 8:51pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/17 "2019-01-23T20:51:12Z")
> [@UltraVires](#): > > Perhaps I need to explain it to you: Presidents are allowed to make executive orders. Those don’t need to be passed as laws as we were taught in School House Rocks. President Warren issues an executive order prohibiting Republicans from serving in the military. Legal or not? ---
**Author:** ![Budget\_Player\_Cadet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/budget_player_cadet/32/205_2.png) [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)\ **Post date:** [January 24, 2019, 3:13pm UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/18 "2019-01-24T15:13:17Z")
> [@UltraVires](#): > > As a matter of law, I think it is unquestionably correct, and I strain to see the argument against it. **A person’s transgendered status is not a protected element of any civil rights law**. The President is the CiC of the military. Absent a law to the contrary, he should be free to enact this policy. (Bolding mine.) If that’s the case, then yeah, you’re right. Tragically, the president is given broad discretion on how and against whom to discriminate in the military, regardless of how patriotic those individuals are, and regardless of how important their being in the army is for their wellbeing. “Support the troops” clearly means something different to you and Trump than to me, but he’s within his rights to do this. That said… it is still really, really shitty policy. And there’s no telling that it won’t lose out in the end. And given that the relative stakes here are pretty disparate - the plaintiff could lose their job, health insurance, and much more, and the defendant stands to lose… Well, fucking nothing, because the whole point of this policy is to discriminate against trans people… The stay is entirely reasonable. > [@](#): > > If there are reasons not to have this policy, and I’m sure that good intentioned people can think of many, then you work in a democracy to pass these laws, or the next President can reverse course. This is, of course, real fuckin’ rich coming from the kind of person who seems to be fairly gleeful of stripping trans people of their status. “Oh sure, the president I support passed a policy I support which will leave you jobless and leave your entire demographic even more politically disempowered, but if you have a problem with that, you can just vote to get it fixed!” In terms of tact, it’s up there with “I’m not touching you”. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 25, 2019, 5:50am UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/19 "2019-01-25T05:50:48Z")
> [@Budget\_Player\_Cadet](#): > > If that’s the case, then yeah, you’re right. The President, of course, has the legal authority to issue executive orders. But it’s equally true that the District Court has the legal authority to issue injunctions. And the Supreme Court has the legal authority to life that injunction. As far as I can tell, nobody acted illegally. The issue then is whether people acted improperly. And I’d say yes. Personally, I’d say that transgendered people have the same right to serve in the armed forces as any other American has. I’d base that on the Fifth Amendment, the Fourteenth Amendment, and, if you want an unusual approach, the Second Amendment. Putting aside the issue of rights, there’s the issue of who should properly make the determination. Some might argue that the legislative branch is society’s representative so they should have the right to set policy on this issue. Others might argue that issues of constitutional rights should be determined by the judicial branch. I don’t see a good argument why the executive branch should be setting policy on this issue. This is an area where the executive branch should be enforcing the policies set by Congress and the courts, not initiating its own policies. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [January 25, 2019, 7:50am UTC](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197/20 "2019-01-25T07:50:40Z")
> [@Ravenman](#): > > President Warren issues an executive order prohibiting Republicans from serving in the military. > > Legal or not? There already are several encumbrances on Communist party members serving in the US Military, so I am guessing, yes. [Next page](https://boards.straightdope.com/t/supreme-court-allows-military-transgender-ban-to-take-effect/828197.md?page=2)