The Justice Department has asked the Supreme Court to allow a ban on transgender people in the military to go into effect pending appeal.
The administration already has a pending request for the Supreme Court to bypass the lower courts and take up a case concerning the ban, which has been blocked by lower courts.
Now the Department of Justice is taking it a step further. In a brief filed Thursday night, Solicitor General Noel Francisco requests that if the Supreme Court declines to take up the case this term, the justices allow the Trump policy to go into effect while the case plays out in the lower courts.
The justices are likely to ask challengers for their response.
The policy, first announced by the President in July 2017 via Twitter and later officially released by Secretary of Defense James Mattis, blocks individuals who suffer from a condition known as gender dysphoria from serving with limited exceptions. It specifies that individuals without the condition can serve but only if they do so according to the sex they were assigned at birth.
When the administration first asked the high court to take up the case last month, Francisco argued that lower court rulings imposing nationwide injunctions are wrong and warrant immediate review.
The petitions he filed asked the justices to take up the issue in three separate cases that are still in lower courts so it could be decided definitively this term.
He wrote that because of the injunctions, “the military has been forced to maintain that prior policy for nearly a year” despite a determination by Mattis and a panel of experts that the “prior policy, adopted by (Defense Secretary Ash Carter), posed too great a risk to military effectiveness and lethality.”
Under normal circumstances, the Supreme Court does not like to take up an issue before it has made its way through the lower courts. The justices like to have issues percolate below so that they can benefit from the opinions of lower court judges.
Francisco has moved aggressively at times to get cases before a Supreme Court that is more solidly conservative with the addition of Justice Brett Kavanaugh. In one such case, Francisco recently asked the court for emergency help to let the administration’s asylum ban go into effect.