Photo: Staff Sgt. Teddy Wade, U.S. Army, via Wikimedia.
A federal court in Seattle has rejected yet another attempt by the Trump administration to push forward with its new “Deploy or Get Out” policy, which would effectively ban most transgender people from serving in the U.S. military.
Under the policy, proposed in March by Secretary of Defense Jim Mattis, emphasis was placed on the ability to deploy overseas at a moment’s notice. But several LGBTQ advocates have noted that Mattis’ policy appears to have been based on an outdated scientific understanding of gender dysphoria and transgender health care needs. For instance, they point out that a service member who receives hormone treatments is perfectly capable of deploying abroad.
Writing for the court, Judge Marsha Pechman — who issued the original injunction stopping the Pentagon from implementing a proposed ban, and subsequently, the revised ban pushed by Mattis — found that “[the] defendants have not made a ‘strong showing’ that they are likely to succeed on the merits of their appeal.”
“First each of the arguments raised by Defendants already has been considered and rejected by the Court, and Defendants have done nothing to remedy the constitutional violations that supported entry of a preliminary injunction in the first instance,” Pechman writes.
“Second, while Defendants claim — without explanation — that ‘the Ninth Circuit and/or this Court ultimately . . . are highly likely to conclude that significant deference is appropriate,’ whether any deference is due remains unresolved Defendants bear the burden of providing a ‘genuine’ justification for the Ban. … To date, Defendants have steadfastly refused to put before the Court evidence of any justification that predates this litigation.
“Finally, the Court notes that the Ban currently is enjoined by four separate courts,” she adds. “As a practical matter, Defendants face the challenge of convincing each of these courts to lift their injunctions before they may implement the Ban.”
As a result, the nationwide injunction remains in place preventing the anti-transgender policy from moving forward, while the Trump administration appeals Pechman’s injunction to the 9th U.S. Circuit Court of Appeals.
“Yet again, the Trump Administration has tried to implement and expedite discrimination, and yet again, the court has said no,” Lambda Legal Senior Attorney Peter Renn said in a statement. “You would think the administration would get tired of all the losing, and more importantly, would read the writing on the wall and abandon this discriminatory and harmful scheme to prevent brave and qualified transgender people from serving their country.”
The case, known as Karnoski v. Trump, is expected to go to trial, where the policy will be debated on its merits, sometime in April 2019. Attorneys from Lambda Legal and OutServe-SLDN are representing nine individual plaintiffs, as well as the Human Rights Campaign, the Seattle-based Gender Justice League, and the American Military Partner Association, all of whom claim the ban is discriminatory and unconstitutional.
“The District Court’s rulings have been consistent and unequivocal: the ban on transgender military service is discrimination, no matter how it’s phrased and no matter the myriad ways the administration has tried to cloak its intent,” OutServe-SLDN Legal Director Peter Perkowski said in a statement. “The administration has failed to come up with any post hoc rationale for the president’s ill-conceived tweets of last July that justifies their blatant discriminatory nature, and we are confident it never will.”
Sarah McBride, the national press secretary for the Human Rights Campaign, said in a statement that Pechman’s decision reveals that the Trump administration faces an “uphill battle” as they try to justify the discriminatory ban.
“We are encouraged by this decision and remain hopeful for a victory in this case on behalf of our brave transgender service members and the qualified recruits who simply want to serve their country,” McBride said.
Staff Sgt. Cathrine Schmid, one of the individual plaintiffs, also weighed in on Pechman’s ruling.
“Tomorrow, I will put on the uniform of U.S. Army and do my duty, as I did today and yesterday, and have done for more than 13 years,” Schmid said. “Being transgender has no impact on my ability to perform my duties. I’m grateful that the court to date has recognized the value in our service, and I look forward to the day when we can put this argument behind us and focus on what’s really important — the accomplishment of our mission, and the welfare of our service members.”