LGBTQ+ in the Supreme Court: Today's Order

Much will be made in the press of today's brief, unsigned order (to which Justices Sotomayo, Kagan, and Jackson dissented without opinion). The case involved Pres. Trump's Jan. 27 Executive Order 14183 with the Orwellian title, "Prioritizing Military Excellence and Readiness." 

Seven transgender serivce personnel challenged the EO in federal district court. Lead plaintiff is Commander Emily Shilling, a veteran Navy combat pilot who served in two wars and is now a Navy test pilot. The trial judge issued an preliminary injunction against enforcement of the EO until there could be a deision on the merits of the challengers' claims, and the Ninth Circuit Court of Appeals declined to stay the lower court's order. (Click here.) Today's Supreme Court order granted that stay:

This is not your usual procedural order to preserve the status quo pendente lite:

1. By lifting the lower court's injunction, the Court has allowed the DOD to proceed with its purge of transgender service members. 
2. That purge began on Feb. 26 and can now resume:
   
   "On Feb. 26, the Department of Defense issued that ban, which generally disqualifies anyone who either has gender dysphoria or has undergone medical interventions to treat gender dysphoria from serving in the military. The department explained that 'the medical, surgical, and mental health constraints on individuals who have a current diagnosis or history of, or exhibit symptoms with, gender dysphoria are incompatible with the high mental and physical standards necessary for military service.'" (SCOTUSBlog, May 6)
   
   
3. It is a little unclear exactly what standard the Court is using these days to decide on stay motions on its emergency docket. Ordinarily a major factor is whether the party seeking relief is likely to prevail on the merits of the underlying litigation. If this order is based upon such a weighing of probabilities, it's bad news for the challengers.

Why cover this development in HealthLawBlog? Because also pending on the Court's calendar is United States v. Skrmetti, No. 23-477, in which this is the issue: Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow "a minor to identify with, or live as, a purported identity inconsistent with the minor's sex" or to treat "purported discomfort or distress from a discordance between the minor's sex and asserted identity," violates the equal protection clause of the 14th Amendment. Oral argument was held on Dec. 4, after which it was reported that the Court appears ready to uphold Tennessee's ban.