Judge: 'New' Trans Military Ban Is Same as the Old Ban

Military

Donald Trump’s supposedly updated ban on transgender people in the military is the same as the old one, so a lawsuit challenging it can proceed to trial, a federal judge in Seattle ruled Friday.

The administration had argued that Karnoski v. Trump, one of four suits against the ban, should be dismissed because the new presidential  memo on the ban, released late last month, gives transgender troops a way to serve openly. The memo, implementing a policy outlined by Defense Secretary James Mattis, says trans people “are disqualified from military service except under certain limited circumstances and can serve in their “biological sex.”

But U.S. District Judge Marsha Pechman ruled that this is essentially the same ban Trump tweeted last July. “The Court finds that the 2018 Memorandum and the Implementation Plan do not substantively rescind or revoke the Ban, but instead threaten the very same violations that caused it and other courts to enjoin the Ban in the first place,” she wrote, adding, “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,” she wrote. “Rather, it would force transgender service members to suppress the very characteristic that defines them as transgender.”

Pechman also ruled that the effort to ban trans people from military service must meet the highest level of scrutiny because of the history of discrimination against the transgender community. “The history of discrimination and systemic oppression of transgender people in this country is long and well-recognized,” she wrote. “Transgender people have suffered and continue to suffer endemic levels of physical and sexual violence, harassment, and discrimination in employment, education, housing, criminal justice, and access to health care.” Because of this, she said, Trump administration must demonstrate that the ban “was sincerely motivated by compelling interests, rather than by prejudice or stereotype.”

Pechman has already issued a preliminary injunction in the case, blocking the ban while the suit proceeds, as have the judges in three other cases against the ban. The Karnoski case involves nine current or aspiring trans service members and three organizations – the Human Rights Campaign, the Gender Justice League, and the American Military Partner Association. The state of Washington has also joined the case. The plaintiffs are represented by Lambda Legal and OutServe-SLDN.

The plaintiffs had sought summary judgment in the case, meaning Pechman would strike down the ban without a trial, but she wrote that she cannot yet rule on their claims of violation of equal protection, due process, and First Amendment rights under the U.S. Constitution, and the case must go to trial. Nevertheless, plaintiffs and their lawyers welcomed her ruling.

”While it does not grant the ultimate relief — a judgment without trial—the court’s decision gets us well on the way to defeating this ban,” OutServe-SLDN legal director Peter Perkowski said in a joint press release with Lambda Legal “Significantly, the court rejected the government’s position that last month’s announcement was a ‘new policy,’ it kept the preliminary injunction in place, and set a high bar for the government to prevail. We remain confident that the facts presented at trial will prove determinative and we can finally put this discriminatory and harmful ban out of our misery.”

“The court wants to expose this bigoted ban for all of its ugliness at trial, and we are happy to oblige. If it’s a full record the judge wants, then it’s a full record we will give her,” added Lambda Legal senior attorney Natalie Nardecchia. “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," said a statement released by HRC national press secretary Sarah McBride. "Transgender people are serving with distinction and enlisting with bravery this very moment and there continues to be no legitimate rationale to change that. We continue to stand with all transgender service members and enlistees in this fight -- and we thank our attorneys at Lambda Legal and Outserve-SLDN for their tireless work."

In another development on the trans military ban, four leading Democrats in Congress sent a letter this week to Mattis seeking information on how he arrived at the “new” policy set out in March and what “experts” he consulted on it, including whether he spoke with leading medical groups. The letter is signed by Reps. Adam Smith of Washington and Jackie Speier of California, and Sens. Jack Reed of Rhode Island and Kirsten Gillibrand of New York.

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