A U.S. Army sergeant flies the American flag from the back of a CH-47 Chinook helicopter over southern Kandahar province, Afghanistan. The pilots and crew chiefs fly American flags to present with certificates to service members as part of aviation tradition. (U.S. Army photo by Staff Sgt. Bryan Lewis)
The timing of US District Court Judge Marsha J. Pechman's ruling on the ban against open transgender military service could not have been more poignant.
As the order circulated late Friday, April 13 among lawyers and plaintiffs in the OutServe-SLDN and Lambda Legal lawsuit against the Trump Administration, President Trump announced that he had ordered "precision strikes" in response to the chemical attack in a suburb of Damascus last weekend that killed at least 40 people.
It was the second military attack ordered without the consent of Congress and was contrary to Trump's previous announcement of his intention to withdraw troops from Syria. Some pundits wondered if the strikes were a predictable, distracting response to the anger the president has expressed over the FBI's ongoing investigation into his personal lawyer Michael Cohen.
Against this backdrop of war, an unpredictable commander-in-chief and a Defense Secretary who seems to be trying to appease him, the patriotic call of duty expressed by trans servicemembers in their lawsuits asking for the right to fight and die for their country seems even more courageous.
Pechman, ruling from her federal court in Seattle, Washington, seems to get that, delivering some precision strikes of her own. She ordered that her earlier preliminary injunction against the ban remain in effect. In that Dec. 11, 2017 ruling, she wrote "The Court finds that the policy prohibiting openly transgender individuals from serving in the military is likely unconstitutional," adding that ban irreparably harms the state of Washington's interest in "maintaining and enforcing its anti-discrimination laws, protecting its residents from discrimination, and ensuring that employment and advancement opportunities are not unlawfully restricted based on transgender status."
In her April 13, 2018 decision, Pechman rejected the Justice Department's argument that the "new" trans ban implementation policy derived from Sec. of Defense Mattis' recommendations in late March was not a new policy at all since it violated the same constitutional protections. She said the OutServe-SLDN and Lambda Legal case could proceed to trial with Trump still a defendant. And, stunningly, Pechman wrote:
"The Court also rules that, because transgender people have long been subjected to systemic oppression and forced to live in silence, they are a protected class. Therefore, any attempt to exclude them from military service will be looked at with the highest level of care, and will be subject to the Court's "strict scrutiny." This means that before Defendants can implement the Ban, they must show that it was sincerely motivated by compelling interests, rather than by prejudice or stereotype, and that it is narrowly tailored to achieve those interests."
"The entire decision, which is 31 pages, is choke full of great discussions that really indicate that this judge just gets it," Peter E. Perkowski, Legal director for OutServe-SLDN, tells the Los Angeles Blade. "She understands the issues. She's not falling for the government's kind of shell game, if you will, of moving a whack-a-mole—keep changing the policy to try to get out of court. But she's not falling for that. She's definitely interested in reaching the merits of this case."
The judge did not grant the all the LGBT legal groups' requests. She denied permanent injunction and the request for a ruling on the merits without a trial.
"She said she's not willing to do that now because she wants to hear specifically how the 2018 recommendations from Sec. Mattis and the panel of experts, as it's been called—how much deference she needs to give to those results of that proceeding," Perkowski says, "And whether she gives any deference at all or some or a lot – whether the ban, as it exists now, still has to meet constitutional revue, as she set forth in her decision."
Going to trial means the legal groups would have a discovery process, which could finally reveal how, exactly the ban on transgender service members wound up as a Trump Tweet last year. Using very reliable sources, the LA Blade reported on Aug. 9, 2017 that the origin story lead from the Air Force Academy to religious Republican conservatives in the House — led by Rep. Duncan Hunter of California and Rep. Vicki Hartzler from Missouri — to evangelical lobbyist Tony Perkins of the Family Research Council, along with his colleagues Ken Blackwell and Lt. Gen. Jerry Boykin (ret), to Vice President Mike Pence, who agreed to help. Since then, others have reported similar accounts, including Slate's Mark Joseph Stern and Think Progress' Zack Ford. Meanwhile, Chris Johnson at the Washington Blade, reported on Thursday, April 12, that Army Secretary Mark Esper has had no problems with unit cohesion, which goes against a trans ban talking point.
Would OutServe-SLDN and Lambda Legal use the trial discovery process to get to the truth of how, who and why the ban was created?
Peter Perkowski is Legal Director for OutServe-SLDN, which assists the LGBT military community—including active-duty servicemembers, veterans, and Department of Defense civilians—and those living with HIV primarily with legal needs pertaining to equal access, equal treatment, and equal service.
Perkowski said he would not disclose trial strategy but added: "Yes, we are looking into all avenues to prove that this policy is not motivated by legitimate government objective but rather is motivated by bias— and that would include developing evidence that people like people in the [anti-LGBT] religious community had input into how this policy was made and how it was announced. That would be very critical evidence or at least powerful evidence about what deference the court would owe to the ban, for example and whether it survives constitutional review."
Perkowski says he's heard the same stories and rumors about what happened behind the scene but he can't comment because he doesn't know. "To the extent that we can develop that evidence as part of this trial, that would be very powerful evidence indicating that the government simply cannot meet its burden in justifying this policy under the constitutional standards. I think it would be useful to try to develop that evidence, as well. It would be great to find out who had their hands in the cookie jar, so to speak."
Perkowski says there are different teams working on different aspects of the case. But, he says, "I'm sure everything is on table."
When asked if that included deposing Pence, he says: "I'm not going to confirm any discovery effort we're going to make." But, he adds, it's fair to suggest that Pence's connection to the trans ban is something the teams will look at in the discovery process.
HERE"S THE RULING:
[pdf-embedder url="https://www.losangelesblade.com/content/files/2018/04/04_13_LAB_Wash_court.pdf"]
