The Pentagon. Photo: Department of Defense – Photo: Master Sgt. Ken Hammond, U.S. Air Force, via Wikimedia.
A federal judge has ruled to keep in place an injunction that she had previously issued to halt the Trump administration’s ban on transgender military members from taking effect.
U.S. District Judge Marsha Pechman, of the Western District of Washington State, ruled that the latest iteration of the ban, which was announced by the Pentagon last month, was not substantially different from President Trump’s previous proposal, reports The Hill.
Under the revised policy, military leaders issued a memo saying that transgender people would be categorically disqualified “except under limited circumstances.” For example, there are exceptions that would allow a tiny number of transgender people to serve, so long as they do not undergo gender confirmation surgery or hormone treatments. But all others, including those who have been diagnosed with gender dysphoria, will be barred from entering the military.
Most importantly, Pechman ruled that transgender people are a “protected class,” meaning any attempts to institute a categorical ban, and rationale attempting to justify such a ban, will be subject to a higher level of scrutiny.
“[B]ecause transgender people have long been subjected to systemic oppression and forced to live in silence, they are a protected class,” Pechman wrote in her opinion. “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.'”
Pechman also wrote that the government would have to show that any ban was “sincerely motivated by compelling interests, rather than by prejudice or stereotype,” especially in light of the historic mistreatment of transgender individuals.
Pechman also dismissed the government’s motion to dismiss the case of Karnoski v. Trump, one of at least four lawsuits challenging the ban, and found that the plaintiffs — which include nine active-duty military members and prospective recruits, as well as the Human Rights Campaign, the Seattle-based Gender Justice League, and the American Military Partner Association — have standing to challenge the transgender ban.
She also found that the plaintiffs are likely to succeed on their claims that the ban violates their right to equal protection, substantive due process, and their First Amendment rights, and that they would be irreparably harmed if the court failed to intervene.
“If a preliminary injunction does not issue, Plaintiffs will continue to suffer injuries as a result of the Presidential Memorandum, including deprivation of their constitutional rights,” Pechman wrote. “On the other hand, Defendants will face no serious injustice in maintaining the June 2016 Policy pending resolution of this action on the merits.
“Defendants claim they are in the process of ‘gathering a panel of experts’ to study the military’s policy on transgender service members and assert, without explanation, that an injunction will ‘directly interfere with the panel’s work and the military’s ability to thoroughly study a complex and important issue regarding the composition of the armed forces.’ The Court is not convinced that reverting to the June 2016 Policy, which was voluntarily adopted by DoD after extensive study and review, and which has been in place for over a year without documented negative effects, will harm Defendants.”
By allowing the case to move forward, Pechman allows the plaintiffs to ask that the ban be declared unconstitutional and that the court issue a more permanent injunction. For now, though, her current injunction will be sufficient to ensure that the Trump administration makes no radical moves until the case has been decided on the merits.
The plaintiffs and their lawyers have said they look forward to proving their case in the coming months.
“The court wants to expose this bigoted ban for all of its ugliness at trial, and we are happy to oblige,” Lambda Legal Senior Attorney Natalie Nardecchia said in a statement. “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.”
“The upcoming trial will only serve to further demonstrate that this impulsively tweeted ban is fueled by nothing more than the president’s personal prejudices,” HRC National Press Secretary Sarah McBride said in a statement. “Transgender people are serving with distinction and enlisting with bravery this very moment and there continues to be no legitimate rationale to change that.”
Three other major lawsuits against the ban are being argued in the District of Columbia, Maryland, and California. Plaintiffs in all three cases claim they are being unfairly discriminated against and that courts should issue injunctions to permanently block the implementation of any policy that would exclude people from service solely because of their transgender identity.
Peter Renn, a senior attorney with Lambda Legal, predicts that plaintiffs in the other cases will encounter similar success, just as those in the Karnoski case have.
“If history is any prediction of the future,” Renn said, “the ban is still doomed at its next reckoning.”