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What’s happening?
On Tuesday, the Supreme Court’s right-wing supermajority cleared the way for Trump to expel transgender servicemembers from the military under his openly hateful executive order. The Roberts Court took this action after a George W. Bush-appointed U.S. district court judge ruled that the order was unconstitutionally irrational and blocked the purging of these servicemembers.
The Court’s unsigned order gave no reason for putting Judge Benjamin Settle’s decision on hold during the appeals process over the dissents of Justices Sotomayor, Kagan, and Jackson. That is, the Roberts Court has not yet ruled on the merits, but it is allowing the Trump administration’s order to expel members of the military who have been serving honorably.
What’s the big picture?
The Court’s order echoes a similar action it took in 2019, when the Republican-appointed justices allowed Trump 1.0’s trans military ban to go into effect. But at least then the Defense Department undertook an “independent multi-disciplinary review and study of relevant data and information pertaining to transgender Service members” to launder out the animus Trump displayed when announcing his policy by random tweet in 2017.
Trump 2.0, however, has no patience for such pretexts. As part of this administration’s sweeping attack on transgender people’s existence, Trump’s new EO bans transgender servicemembers based on an assertion that the “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.” The order provides for no individual determination that any servicemember targeted has any record of misconduct warranting dismissal. The new order offers no evidence for its disparaging claims about trans service members or for the claim that a “man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.”
Trump bet that the Roberts Court would not mind that this EO—based on bare, vengeful assertions that the DOJ barely attempted to justify in court—made a mockery of the judiciary’s typical deference to the President’s broad Commander-in-Chief power vested to the Executive in Article II of the Constitution.
And Trump’s bet paid off.
Now Commander Emily “Hawking” Shilling, the named plaintiff in Judge Settle’s case, can be expelled from the Navy. As Judge Settle wrote, Shilling:
“has been a Naval Aviator for 19 years. She has flown more than 60 combat missions, including in Iraq and Afghanistan, and was a Navy test pilot. She has 1750 flight hours in high performance Navy jets—including the F/A-18 Super Hornet—and has earned three air medals. She asserts without contradiction that the Navy already spent $20 million training her. There is no claim and no evidence that she is now, or ever was, a detriment to her unit’s cohesion, or to the military’s lethality or readiness, or that she is mentally or physically unable to continue her service. There is no claim and no evidence that Shilling herself is dishonest or selfish, or that she lacks humility or integrity. Yet absent an injunction, she will be promptly discharged solely because she is transgender.”
But while the justices may not have provided a reason for allowing this to happen, the D.C. Circuit will likely soon give us an idea of what’s to come should this issue ultimately reach the Court on the merits. Judge Settle was the second judge to block Trump’s EO. Judge Ana Reyes, a Biden appointee to the federal district court in D.C., was the first. Late last month, a three-judge panel with a Trump-appointed majority heard oral arguments over whether to stay Reyes’s ruling, too.
Meanwhile, the Roberts Court’s order may not have only been about blanket deference to a capricious president’s power over military affairs. By early July, the justices will also likely declare transgender people largely unprotected under the Constitution’s guarantee of equal protection of the law. The Court’s order this week can also be understood as a sign to the appeals courts that its coming ruling in the case over Tennessee’s ban on medical treatment for transgender minors could fundamentally alter how to analyze the Trump 2.0 transgender servicemember ban.
What’s the broader context?
Like immigrants, transgender Americans have been a major target of the right-wing ecosphere in recent years. Special interest groups’ scaremongering about the supposed dangers of trans women in women’s bathrooms, locker rooms, and athletics have served multiple ends: from attacking progressive policies that would actually benefit women, like the Equal Rights Amendment and Title IX, to bolstering support for right-wing candidates. Now, the Trump administration has its sights set on banning transgender Americans from professional life.
Project 2025, Trump’s regressive handbook for his current term, was authored and advised by well-funded anti-LGBTQ+ attack machines, like Alliance Defending Freedom, American Principles Project, and others. It set forth an oppressive annihilation of transgender rights for Trump 2.0. For example, it equated being transgender with pornography, essentially suggesting the criminalization of transgender Americans and those who advocate for them.
Many of the groups fueling the attacks against transgender Americans—like the Independent Women’s Forum, Concerned Women for America, and Ethics and Public Policy Center, which are all also Project 2025 advisors—are part of the same network that helped install the right-wing faction of the Supreme Court. Leonard Leo—who helms a $1 billion trust that distributes vast funds to groups set on turning back our rights, including the freedom to choose if and when we build a family and with whom—played a key role in installing every member of the Roberts Court’s supermajority. This is one more example of Trump pandering to the dark money wishlist of Project 2025 and using the MAGA Court to do so.
Why does it matter?
Trump has long claimed that he is the military’s biggest supporter, even as he has repeatedly disparaged generals, and he routinely tosses around the word “patriotism.” But by throwing trans people out of the military, he’s trying to have it both ways: purporting to bolster the military while actually purging thousands of talented and loyal servicemembers and banning other devoted and highly skilled Americans who might want to serve our country. And that is not something that the military can afford, with dwindling recruitment numbers.
Let us be clear, too, about the hypocrisy in Trump’s statement that trans servicemembers do not have the “humility or selflessness” required of a servicemember. He is actively shutting out servicemembers who, like Commander Shilling, have made the conscious decision to put their lives on the line for this country, despite knowing the risks of being an openly trans servicemember under a Trump administration that seeks to punish people living as their authentic selves. Meanwhile, Trump has done nothing but protect his pick as the Secretary of Defense, Pete Hegseth, who endangered our national security by sharing sensitive information on multiple Signal chats and who has tattoos that have been associated with Islamophobia and white supremacist groups.
So who exactly is endangering our national security and who is the “patriot”?
What can you do?
Speak up. Share resources from GLAAD, Human Rights Campaign, and GLAD Law on the harm Trump’s trans service member ban will cause.
Contact your members of Congress and let them know that you expect them to fight the Trump administration’s attempts to persecute Americans at the expense of public safety. Ask them how they plan to use their power to protect Americans’ rights and freedoms.
Learn more from Indivisible about how to make your voice heard by attending and speaking at town halls.
Who am I?
A convicted felon who never served in the military is the Commander in Chief. Up is down and 2+3=6!!