Trump's revived/revised trans military ban still doesn't pass judicial scrutiny.
Marilyn Drew Necci | April 16, 2018
It was pretty depressing earlier this year, after all of the protesting, legal wrangling, and fighting for civil rights that took up the last half of 2017, to see the Trump Administration relaunch their high-profile ban on transgender troops in the US Armed Forces last month — as if none of the numerous court injunctions of 2017 had ever happened. Thankfully, it seems the justices of our country’s court system have a longer memory than the president and his administration.
On Friday, Judge Marsha Pechman, who serves as Senior Judge of the United States District Court of Western Washington, issued a ruling in the case of Karnoski v. Trump that once again shut down the trans military ban. This replicates her previous decision in the same case last December that the trans ban policy violates equal protection statutes as well as First Amendment rights of transgender troops and recruits.
Over the past month, we’ve heard quite a bit from the Trump administration (and from poorly informed local sources) about the substantive differences between the old version of the trans military ban and this new one, and about how this new version was somehow better and more fair to trans soldiers. Pechman’s response to this argument, as captured in her ruling, was succinct.
“The Court is not persuaded. The Implementation Plan prohibits transgender people — including those who have neither transitioned nor been diagnosed with gender dysphoria — from serving, unless they are ‘willing and able to adhere to all standards associated with their biological sex.’ (Dkt. No. 224, Ex. 1 at 4, Ex. 2 at 7.) Requiring transgender people to serve in their ‘biological sex’ does not constitute ‘open’ service in any meaningful way, and cannot reasonably be considered an ‘exception’ to the Ban. Rather, it would force transgender service members to suppress the very characteristic that defines them as transgender in the first place.”
Wow. I couldn’t have said this better myself. The idea that continuing to live in the gender one was assigned at birth will be somehow less dysphoria-inducing if you’re allowed to tell people that it’s the wrong gender — even as you’re prohibited from doing anything about that fact — is absurd. What’s more, I’d call it cruel. Thankfully, due to this injunction, it won’t become the law of the land just yet.
Judge Pechman took note of the fact that the Trump administration, despite claims of having consulted with military experts on the ban, have refused to make public the names of officials that have been consulted, citing executive privilege. Pechman was no less cutting in her response to this point: “As no other persons have ever been identified by defendants — despite repeated court orders to do so — the court is led to conclude that the ban was devised by the president, and the president alone.”
In fact, as reported by Slate’s Mark Joseph Stern, it seems most likely to have been cooked up by known anti-LGBTQ crusader Mike Pence and a variety of his anti-LGBTQ cronies. But if anything, this only proves Judge Pechman’s point.
We’ve now returned to the state of play as of late 2017, in which the numerous cases filed against the Trump administration by trans troops must be seen through to their conclusion before the ban can be implemented. If, indeed, it is ever implemented at all — the opposition from federal justices that the ban has received at every turn makes it seem unlikely that the administration will be able to win any of the current cases. But of course, we’ll continue to keep you posted as this issue develops.