On first reading, the Reuters headline seemed like dismal news for transgender military servicemembers and advocates fighting the Trump trans ban. “U.S. Court Lets Trump Transgender Military Ban Stand, Orders New Review,” the longtime wire service reported on a Friday ruling by the 9th Circuit Court of Appeals.
The opening paragraph doused the wound with lemon. “A U.S. appeals court handed President Donald Trump a victory in his effort to ban most transgender people from the military, ordering a judge to reconsider her ruling against the policy, which the U.S. Supreme Court has allowed to take effect,” Reuters reported.
A three-judge panel issued a ruling in Karnoski v The State of Washington setting aside the positive April 18, 2018 ruling by District Court Judge Marsha Pechman saying the trans ban probably violated the constitutional rights of trans servicemembers, those seeking promotion and recruits. The 9th Circuit seemed to side with the Justice Department’s appeal of her ruling, explicitly saying that Pechman had not given the military the due deference it usually receives in district courts. The court ordered the judge to try again.
“That finding could strengthen Trump’s position, though the government still had the burden of justifying his policy,” Reuters reported, a policy that Trump announced by tweet in 2017.
And therein lies the hitch upon which the trans ban twists.
“We get another bite at the apple,” an excited Shannon Minter, Legal Director for the National Center for Lesbian Rights, told the Los Angeles Blade. The 9th Circuit ordered Pechman—one of four federal court judges to rule against Trump’s ban—to review the case again, but this time under heightened scrutiny. That shifts the burden of proof from the trans plaintiffs and their backers to the federal government and affords an opportunity to get to the merits of the case.
Last January, when the Supreme Court voted 5-4 to lift the nationwide injunction against the trans military ban going into effect, many in the LGBT community were crushed. Dreams of service, fulfilling legacies, education and job opportunities were put on hold. Trans servicemembers on the brink of coming out—as previously encouraged by the Obama administration—jumped back into the closet lest they lose their careers in a witch hunt.
Trans individuals were allowed to serve in the armed forces, the Pentagon said, as long as they served in their birth sex and endured the inhumane indignity of inauthenticity. But the Pentagon insisted it did not target trans individuals for discrimination. The ban pertained more to medical issues and costs and unit cohesion—all of which had been addressed by a RAND Study commissioned by Defense Secretary Ash Carter, who lifted the ban on open trans service in June 2016 with policy backing from President Barack Obama.
“As always, we treat all transgender persons with respect and dignity,” Lt. Col. Carla Gleason, a Pentagon spokesperson, told CNN after the Supreme Court decision on Jan. 22, 2019. The Defense Department’s “proposed policy is NOT a ban on service by transgender persons. It is critical that DoD be permitted to implement personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world. DoD’s proposed policy is based on professional military judgment and will ensure that the U.S. Armed Forces remain the most lethal and combat effective fighting force in the world,”
On Friday, the 9th Circuit said refuted the DoD, saying the government “discriminates on the basis of transgender status.” Importantly, the 9th Circuit also said that a policy that discriminates on that basis can only be upheld if it meets the same tough standard applied to policies that discriminate based on sex. That elevates transgender people to the same protected constitutional status to gender. That’s a game-changer.
And, since nether the Supreme Court nor the 9th Circuit ruled on the merits of the case, trans advocates have an opportunity to dramatically expose the cruelty behind the targeted unconstitutional discrimination. In the meantime, all trans cases in the 9th Circuit jurisdiction must be considered under heightened scrutiny with the anti-trans policies providing evidence of “exceedingly persuasive justification.”
“This outcome in Karnoski v. Trump is no surprise, since the Supreme Court already lifted Pechman’s injunction,” wrote Slate’s Mark Joseph Stern. “The 9th Circuit found that Pechman hadn’t properly assessed whether former Defense Secretary James Mattis’ final implementation plan shored up the legality of the ban by providing the “considered military judgment” absent from Trump’s impromptu tweets and the resulting scramble to rationalize them.”
“We are pleased that the Ninth Circuit recognized that the district court was wrong to prevent the Department of Defense from applying its policy and also wrong to disregard the confidentiality of matters protected by executive privilege. The Department of Defense will be able to continue implementing a personnel policy it determined necessary to best defend our nation, and the Department of Justice will continue defending that policy as the litigation continues,” DOJ spokesperson Kelly Laco said in a statement.
“Well, it’s not a surprise that the government is focusing on the fact that the Ninth Circuit technically reversed the district court’s refusal to dissolve the preliminary injunction. That is true, of course—that is the immediate impact of the ruling,” Minter told the Los Angeles Blade. “But to note only that is to miss the forest for the trees. The ruling could have reversed the district court and held that the Mattis plan is likely to be constitutional and cannot be enjoined. Instead, it vacated and remanded the issue back to the district court, with instructions that the court should issue a new decision taking into account the panel’s determination that the Mattis plan (contrary to the government’s argument) targets transgender people and that such discrimination is subject to a very serious level of constitutional scrutiny.”
That more serious level of scrutiny also enables the plaintiffs to question more deeply how Mattis arrived at his recommendations for the current policy. The Los Angeles Blade, Politico, and ThinkProgress have all reported extensively on how Trump’s anti-trans tweets originated with anti-LGBT Vice President Mike Pence and his evangelical followers.
As reported in the Washington Blade, on May 16, 2019, 85 conservative leaders, many like Tony Perkins, head of the Family Research Council, and scores of retired anti-LGBT military officers, issued a statement opposing transgender service.
“Conservative leaders urgently suggest that the Trump Administration review and rescind the Obama-era policies that hinder military readiness and overall effectiveness,” the statement said. “Politically correct policies have been imposed largely through administrative fiat. They can be removed in like manner while further study and congressional guidance is obtained. The most problematic policies in this category are those addressing the presence of transgender individuals in the military.”
“While the liberal media insists no thought went into the president’s tweets, the administration has been coordinating with military attorneys behind the scenes for days,” Family Research Council president and leading social conservative activist Tony Perkins wrote in a blog post, The Christian Post confirmed Aug. 11, 2017. “Fortunately, a Pentagon working group had already been established to deal with the issue as part of Defense Secretary James Mattis’s order to delay the enlistment of people confused about their gender.”
The Southern Poverty Law Center, which considers the Family Research Center to be a hate group, wrote this about how they work:
“To make the case that the LGBT community is a threat to American society, the FRC employs a number of ‘policy experts’ whose ‘research’ has allowed the FRC to be extremely active politically in shaping public debate. Its research fellows and leaders often testify before Congress and appear in the mainstream media. It also works at the grassroots level, conducting outreach to pastors in an effort to ‘transform the culture.’”
There is a good possibility a motive with animus attached might be discovered during the review process. “On the discovery front, the Ninth Circuit similarly held that the plaintiffs are entitled to discovery about the process and provided the district court with a clear road map of how to proceed (including requiring the plaintiffs to make targeted requests and reviewing sensitive documents in camera),” Minter told the Los Angeles Blade.
“In a nutshell, the government’s comment focuses only on one narrow aspect of the ruling and disregards the larger picture, which has opened the door for the plaintiffs to seek a new order enjoining the ban. That is a real game changer and a hugely positive development for the plaintiffs.”
The 9th Circuit ruling also applies to Stockman v. Trump, a challenge brought by Equality California on behalf of its members and seven individual plaintiffs. GLAD and NCLR are counsel in Stockman, along with Latham and Watkins LLP.
The State of California also joined the Stockman v. Trump suit. “Our office is reviewing the decision and will be working closely with our co-plaintiffs on next steps in the Stockman litigation,” a spokesperson for California Attorney General Xavier Becerra told the Los Angeles Blade.
“This is a hugely positive development. The Ninth Circuit recognized that the Mattis plan clearly targets transgender people, and that the government faces an uphill battle in justifying it,” said Jennifer Levi, Director of Transgender Rights Project at GLBTQ Legal Advocates & Defenders (GLAD) in a statement.
“Equality California welcomes this opportunity to once again make the case for why this ban is harmful to transgender servicemembers, to their families and to our nation’s military. Excluding qualified, dedicated Americans who want nothing more than to serve our country is not only irrational, it is deeply contrary to the military’s own values of judging individuals based on merit, not on irrelevant characteristics that have nothing to do with their fitness to serve,” said Rick Zbur, Executive Director of Equality California.
Minter said he has no idea what kind of timeline the court might establish.
This article originally appeared in the Washington Blade and is made available in partnership with the National LGBT Media Association.