A federal court has rejected the Trump administration’s argument that the four existing preliminary injunctions issued last year against President Donald Trump’s transgender military ban are moot because they were based on his memorandum from last August 25 and the earlier July 26 tweets announcing the ban, which the president’s most recent memorandum, from March 23, purported to “revoke.”
US District Judge Marsha J. Pechman of the West District of Washington, in Seattle, one of four federal judges who had issued injunctions, released her order on April 13.
Pechman rejected the government’s argument that the policy it announced in March, a month after Defense Secretary James Mattis reported back on the issue at Trump’s direction from last August, is so different from the one the president previously announced that the lawsuit before her, specifically aimed at that earlier policy, is effectively moot.
Nor would she credit the government’s argument that the policy laid out in Mattis’ February 22 memorandum to Trump deprives plaintiffs in the case of “standing” to sue the government. The administration argued that due to various tweaks and exceptions in the policy announced on March 23, none of the plaintiffs in this case were threatened with the individualized harm necessary to have standing, but Pechman concluded that each of the plaintiffs, in facts submitted in response to the March 23 policy, had adequately shown they still have a personal stake in the case’s outcome.
Most consequentially, Pechman found that the court should employ the most demanding level of judicial review — strict scrutiny — because transgender people are a “suspect class” for constitutional purposes. She decided, however, that it would be premature to grant summary judgment to the plaintiffs because there are disputed issues of material fact yet to be resolved. One is whether the government can prove that excluding transgender people from the military is necessary for the national security of the United States. Another is whether the purported “study” behind Mattis’ February 22 recommendations is entitled to the kind of deference that courts ordinarily extend to military policies.
Pechman had earlier found that the military policies under challenge should be subjected only to heightened scrutiny, not strict scrutiny, the highest standard of review, which is called for in cases involving “suspect classes.” Under strict scrutiny, a challenged government policy is presumed unconstitutional and the government has a heavy burden of showing that it is both necessary to achieve a compelling government interest and narrowly tailored to achieve that interest without unnecessarily burdening individual rights.
The Supreme Court has identified race, national origin, and religion as suspect classifications, and has not identified any new classifications in a long time. Lower federal courts have generally refrained from identifying any new federal suspect classifications.
Heightened scrutiny developed in that latter years of the 20th century, as the Supreme Court began to identify some types of discrimination that merited review somewhere between the demanding strict scrutiny standard and “rational basis” review, which is the least demanding approach that presumes laws that are adopted are constitutional unless plaintiffs can show they were based on animus against a particular group. Sex discrimination cases were the first to be subjected to heightened scrutiny.
A growing number of federal courts have applied heightened scrutiny to cases involving transgender rights, including recent controversies about restroom access for transgender high school students, public employee discrimination cases, and lawsuits by transgender prisoners. In the four injunctions issued last fall on Trump’s trans military policy, each of the judges referred to a heightened scrutiny standard.
Now, Pechman blazes a new trail by ruling that discrimination against transgender people should be subject to the same strict scrutiny test used in race discrimination cases.
It is very difficult for the government to win a strict scrutiny case, but its best shot in this litigation depends on the court finding that the policy announced by Mattis is entitled to deference, and this turns on whether it is the product of “expert military judgment,” a phrase that appears in the Mattis report to the president.
Pechman is clearly skeptical on this point, referring to the Mattis document as an “Implementation Plan.” She had earlier raised the question whether Trump consulted with any generals and military experts last year — as he said he did — in announcing his policy, and she now implies the Pentagon did not substantively advance expert review of the appropriate policy but rather simply delivered the president the document he wanted.
Regarding Trump’s policy pronouncements of last year, she wrote, “Defendants to date have failed to identify even one General or military expert he consulted, despite having been ordered to do so repeatedly. Indeed, the only evidence concerning the lead-up to his Twitter Announcement reveals that military officials were entirely unaware of the Ban, and that the abrupt change in policy was ‘unexpected.’”
Mattis’ February report to Trump would seem to support a position of deference by the courts, but Pechman is, as of yet, unconvinced. She did not, however, mention press reports that the Mattis document originated at the Heritage Foundation, a right-wing think tank, rather than from the Defense Department, and has been subjected to withering criticism by, among others, the American Psychiatric Association.
The government’s argument, as Pechman summarizes it, is that the Mattis Implementation Plan is “the product of a deliberative review. In particular, Defendants claim the Ban has been subjected to ‘an exhaustive study’ and is consistent with the recommendations of a ‘Panel of Experts’ convened by Secretary Mattis to study ‘military service by transgender individuals, focusing on military readiness, lethality, and unit cohesion,’ and tasked with ‘conduct[ing] an independent multi-disciplinary review and study of relevant data and information pertaining to transgender Service members.’… The Defendants also claim that the Report was ‘informed by the [DoD]’s own data obtained since the new policy [of allowing open transgender service initiated late in the Obama administration] began to take effect last year.’”
Pechman, however, concluded that “whether the Ban is entitled to deference raises an unresolved question of fact. The Implementation Plan was not disclosed until March 23, 2018. As Defendants’ claims and evidence regarding their justifications for the Ban were presented to the Court only recently, Plaintiffs and [the State of Washington, an intervening co-plaintiff] have not yet had an opportunity to test or respond to these claims. On the present record, the Court cannot determine whether the DoD’s deliberate process — including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon — is of the type to which Courts typically should defer.”
In other words, Pechman suspects that this purported “study” is a political document, produced for litigation purposes. Undoubtedly, she is aware that its accuracy has been sharply criticized.
Even if the court were to conclude that the new policy is owed deference, Pechman wrote, the court “would not be rendered powerless to address Plaintiffs’ and Washington’s constitutional claims, as Defendants seem to suggest.”
Pechman also noted that the “claimed justifications” for banning transgender service members “are strikingly similar to justifications offered in the past to support the military’s exclusion and segregation of African American service members, its ‘Don’t Ask, Don’t Tell’ policy, and its policy preventing women from serving in combat roles.”
In short, Pechman will not be bamboozled by a replay of past discriminatory policies, all of which have been abandoned because they were based mainly on prejudice and stereotyping.
The next stage for the case before Pechman is resolution of the factual controversies she identified before any a final ruling on the merits is made.
Plaintiffs are represented by a team of attorneys from Lambda Legal and OutServe-SLDN, with pro bono assistance from the law firms of Kirkland & Ellis and Newman Du Wors.
In a written statement Lambda senior attorney Natalie Nardecchia said, “The court wants to expose this bigoted ban for all of its ugliness at trial, and we are happy to oblige. If it’s a full record the judge wants, then it’s a full record we will give her. We look forward to putting the capriciousness and cruelty of this discriminatory ban against transgender people on trial, where it can be relegated for good to the trash heap of history, alongside other vile military policies that discriminated based on race, sex, and sexual orientation.”
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