Federal Judge Blocks New Version Of Trump’s Transgender Military Ban
A Federal Judge has struck down the revised version of the ban on transgender members of the military from serving openly, and the ruling has significance that goes well beyond the issue at hand.
Late last week, a Federal Judge in Washington issued an order blocking the Trump Administration’s latest attempt to bar transgender troops from serving in the military:
The Trump administration’s latest effort to bar transgender people from serving in the military remains on hold for now, a federal judge ruled Friday night in a decision finding strong constitutional protections against anti-transgender discrimination.
“The ban specifically targets one of the most vulnerable groups in our society, and must satisfy strict scrutiny if it is to survive,” US District Judge Marsha Pechman ruled in assessing the “history of discrimination and systemic oppression of transgender people” in the US.
In order for the ban to be found to be constitutional under strict scrutiny — one of the toughest constitutional standards to meet — the government would have to show that the ban is advancing a compelling government interest and that “the means chosen ‘fit'” that interest “so closely that there is little or no possibility that the motive for the classification was illegitimate … prejudice or stereotype.”
“[Q]uestions of fact remain,” Pechman ruled, regarding whether the ban is unconstitutional under that strict scrutiny standard and what, if any, “deference” should be given to the government because the ban is a matter of military personnel policy. Those questions would need to be determined at trial.
While the case goes forward, however, Pechman also ruled that she is keeping in place a prior injunction that prevents the federal government from stopping transgender people from serving or joining the military as the trial proceeds.
“[T]he Court concludes otherwise, and rules that the preliminary injunction will remain in effect,” Pechman wrote, later going on to detail, “The Court finds that the 2018 Memorandum and the Implementation Plan do not substantively rescind or revoke the Ban, but instead threaten the very same violations that caused it and other courts to enjoin the Ban in the first place.”
The individuals challenging the ban, along with the state of Washington, argue that the ban violates equal protection and due process guarantees, as well as the First Amendment.
In announcing that transgender people “constitute a suspect class,” Pechman looked at the four traditional factors — history of discrimination, the group’s ability to contribute to society, immutability, and political power — and concluded that all led her to the conclusion that strict scrutiny should apply.
“Transgender people have long been forced to live in silence, or to come out and face the threat of overwhelming discrimination,” she wrote
This decision comes in the wake of a nearly year-long effort by the Trump Administration to reverse the policy change that had been put in place by the Obama Administration in 2016 that allowed transgender troops to serve openly and directed the Pentagon to draft policy changes that would both deal with the issue of how to treat transgender troops who are already serving and those that may wish to enlist. While the Pentagon was in the middle of that study, though, and with seemingly little advance notice, President Trump announced via Twitter that he would be issuing an order barring transgender troops from serving in the military. The Pentagon was clearly caught by surprise by that announcement and it was made clear that the policy would not be changing immediately based solely on the President’s tweets, and that the Defense Department would continue applying the Obama Administration policy until it received a formal order from the White House. Additionally, the Commandant of the U.S. Coast Guard stated that his branch of the service would continue to follow the Obama Era policy until they receive a formal order to the contrary. Additionally, The Blade, a news site that caters to the LGBT community, reported that a new policy directive regarding transgender troops had been prepared by the White House and would be sent to the Defense Department. Despite the fact that polling at the time most Americans opposed the President’s announced policy, it seemed fairly apparent that the President would not be deterred from the policy change. Eventually, Trump finally signed a formal order implementing the new policy in late August. That Order, though gave some latitude to the Defense Department to decide how to implement it. In response, Secretary of Defense Mattis announced that a panel would be established to discuss how to implement Trump’s order and what impact it should have on those service members who came out of the closet in reliance on the announced change in policy last year. While some insinuated that Mattis was defying Trump’s ban, it was clear that this was not the case.
In the meantime, lawsuits filed against the ban both before and after the formal policy announcement from the White House, These lawsuits alleged that the ban was unconstitutional and that it violated the rights of members of the military who had come forward in reliance on the Obama Administration’s policy change due to the fact that it would punish them for acting in reliance on that change. In October, Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia issued a ruling barring the enforcement of Trump’s order and ordering the Defense Department to continue operating under the order issued by former President Obama in the summer of 2016. This was quickly followed by a ruling by Judge Marvin Garbis of the U.S. District Court in Maryland who issued an order substantially similar to Judge Kollar-Kotelly’s that also barred enforcement of the Administration’s order and compelled the Defense Department to continue operating under the pre-existing Obama era policies.
It was in response to those rulings that the Trump Administration issued a revised ban that purported to cure the defects that led to the adverse rulings against the original order. As James Joyner noted at the time, though. the new policy was substantially similar to the one that had been put in place last summer. As James Joyner noted at the time, for example, the new policy “contradicts the advice of all the sitting service chief and the only serious DOD-funded study on the matter.” This specifically included a RAND Corporation study that concluded there would be no adverse impact from allowing transgender troops to serve openly, something that had already been confirmed by the experiences of several American allies such as the United Kingdom, France, and Israel, all of whom allow transgender troops to serve openly. Because of this, it was apparent that the new policy was as unconstitutional as the earlier version. This ruling out of the U.S. District Court in Washington would seem to confirm that.
While the ruling is welcome due to the fact that it puts a stop to the implementation of a bad policy that clearly is grounded solely in bias against transgender Americans, it is legally significant because it marks the first time that Court has held that discrimination against transgender Americans should be subjected to the highest level of scrutiny under the Equal Protection Clause, as Lyle Denniston explains:
For the first time in any court, a federal judge in Seattle has ruled that transgender people are entitled to the fullest protection of the Constitution against discrimination. U.S. District Judge Marsha J. Pechman issued that ruling Friday in a case involving President Trump’s move to bar almost all transgender individuals from serving in the U.S. military, but the decision would also apply to other kinds of discrimination claims by transgender people.
In doing so, the judge refused an Administration request to lift a temporary order she had issued in December barring enforcement of the ban that was first announced last July by President Trump in a Twitter message that caught the U.S. military by surprise. The ban was designed to undo completely a policy that the Obama Administration had adopted, permitting transgender individuals to join or continue serving in the military.
“Any attempt to exclude them from military service will be looked at with the highest level of care” by the courts, Judge Pechman wrote.
First, she ruled that transgender people have long been the targets of discrimination based on their gender identity, that their identity is something basic to their human character rather than a personal choice, that they are fully capable of functioning in society, and that they lack political power sufficient to protect themselves against bias. That meant she had designated them as what technically is called a “suspect class” – not because their identity stirs suspicion, but because that identity is so basic to them that any official policy that treats them less favorably is “suspect” under the Constitution’s guarantees of equality and due process.
Second, the judge said this designation entitles transgender people to have official forms of discrimination against them judged in court by “strict scrutiny” – the toughest test that government policy must meet in order to survive as constitutionally valid. Under that test, a government policy challenged as discriminatory will be struck down unless it is proven to serve a “compelling government interest” and is “narrowly tailored” to do so.
Judge Pechman’s decision almost certainly will be appealed by the Administration, since it argued strenuously before her that the transgender policy is entirely constitutional and should now be cleared for enforcement.
The constitutional result for transgender people of the new ruling, if it withstands an appeal, would be that they would get the same constitutional protection that covers people who face discrimination based on their race or national origin. And it is a slightly higher level of protection than protects people who face discrimination based on their sex as a man or as a woman.
This ruling is potentially significant due to the implications it could have on claims that transgender American might raise against government entities across the country. Previously, the Seventh Circuit Court of Appeals had ruled in a case involving the exclusion of a transgender student from the bathroom that corresponded to their gender identity that transgender Americans were entitled to heightened scrutiny in evaluation of their Equal Protection claims under the 14th Amendment. Under that standard, the court must find that”the law or policy being challenged furthers an important government interest by means that are substantially related to that interest.”Strict scrutiny, on the other hand, requires that the challenged law or policy serves a compelling government interest, is narrowly tailored, and is the least restrictive means for achieving the government’s stated goal. This level of scrutiny has generally only been applied to race and ethnicity in the past and, needless to say, it is virtually impossible for any government policy found to be discriminatory to pass the strict scrutiny test. If this becomes the test for claims based on discrimination due to gender identity, and potentially expanded to sexual orientation, it would essentially mean that no policy that discriminates on those bases could survive scrutiny.
Judge Pechman’s decision, of course, is likely to be appealed to the Ninth Circuit Court of Appeals, so this is hardly the end of the road. Nonetheless, this is a significant new legal development that could have broad implications in the future that go well beyond the United States military.
Here’s the opinion: