Metro Weekly

9th Circuit rules lower court can reconsider halting Trump’s transgender military ban

Under the new legal standard being applied, the government will have the burden of justifying the ban's existence

Photo: Israel Palacio.

The 9th U.S. Circuit Court of Appeals has ruled that a lower federal court can reconsider whether to issue a new order halting the Trump administration’s ban on transgender service members. 

The 9th Circuit ruled that U.S. District Judge Marsha Pechman, of the Western District of Washington, applied the wrong legal standard in the case of Karnoski v. Trump when, in June 2018, she denied a request from the Trump administration asking her to lift an order she had issued two months prior that blocked the ban from taking effect.

The government appealed Pechman’s ruling to the 9th Circuit, and subsequently requested that the Supreme Court intervene to allow the ban to be implemented, rather than waiting for the 9th Circuit’s decision.

The Supreme Court decided the injunctions should be lifted, but refused to hear arguments on the ban’s merit.

In its ruling on Friday, the 9th Circuit determined that Pechman applied the wrong legal standard — that of strict scrutiny, the highest level of judicial scrutiny, which is typically applied to instances in which severe discrimination, such as that based on race, is alleged — to the Karnoski case.

But the court also sent the case back to Pechman, arguing that heightened scrutiny — the same standard applied to instances where gender-based discrimination is alleged — can apply.

What that means is that Pechman will reconsider the arguments put forth by the plaintiffs and the government, and could even potentially issue a new order halting the Pentagon from carrying out the transgender ban, which took effect on April 12

In its ruling, the 9th Circuit held that the Mattis policy singles out transgender people for potential discrimination and must therefore be reviewed under heightened scrutiny.

That means that the burden to justify keeping the ban in place is placed on the government, which must show that the ban is substantially related to “an exceedingly persuasive” governmental interest.

But the 9th Circuit also noted that Pechman has to give some deference to the Trump administration’s decision-making process, although the plaintiffs are entitled to “discovery” — meaning access to any documentation or information detailing how the administration crafted the policy and what (or whom) influenced their decision-making.

“With today’s decision from the Ninth Circuit Court of Appeals, we moved one step closer to our goal: vindication of the constitutional rights of transgender service members,” Sharon McGowan, the executive director of Lambda Legal, which is representing the Karnoski plaintiffs, said in a statement.

“In an unanimous decision, the Ninth Circuit held that this administration’s ban targets transgender people, rejecting the government’s pretense to the contrary, and therefore must be analyzed using heightened judicial scrutiny, flatly rejecting the government’s request for rubber-stamp approval,” McGowan added. “It also made clear that the district court was entitled to evaluate this discriminatory policy through a full presentation of the facts, which we are eager to make.

“Earlier this year, the Supreme Court rejected the Trump administration’s premature request for review precisely because it wants the lower courts to evaluate the constitutionality of the ban on a full record.  This ban remains rank discrimination that does nothing to promote national security and inflicts deep harm on the transgender people who wish to serve and the families whom they support, and who support them.  But we are more determined than ever, and eager to continue this fight to relegate this hateful policy to the dustbin of history.”

Three of the plaintiffs in the Karnoski v. Trump lawsuit – Photo: Lambda Legal.

The ruling also applies in the case of Stockman v. Trump, a case out of California challenging the military ban, which falls under the 9th Circuit’s jurisdiction.

The organizations representing plaintiffs in that case issued statements expressing hope that they would eventually prevail in convincing the court that the ban is discriminatory, unconstitutional, and serves no compelling government interest.

“This is a hugely positive development,” Jennifer Levi, director of the Transgender Rights Project at GLBTQ Legal Advocates & Defenders, said. “The Ninth Circuit recognized that the Mattis plan clearly targets transgender people, and that the government faces an uphill battle in justifying it.”

“Today’s ruling provides a clear roadmap for striking down this discriminatory ban,” Shannon Minter, legal director of the National Center for Lesbian Rights, added. “Transgender service members already must meet the same standards applied to everyone else.  The only effect of this policy is to exclude people who meet those strict standards and are fit to serve, simply because they are transgender.”

Rick Zbur, the executive director of Equality California, which is a plaintiff in the Stockman case, said his organization welcomed the opportunity to argue — once again — why the ban is both harmful to transgender service members and unnecessary. 

“Excluding qualified, dedicated Americans who want nothing more than to serve our country is not only irrational,” Zbur said, “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.”

John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com

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