Every Positive Aspect of the Opinion Comes With a Poison Pill That Could Make It Meaningless.
The Ninth Circuit Court of Appeals has issued an opinion on transgender service that was partly unexpected, given that the Supreme Court had already stepped in to let the Trump ban take effect for now, while legal challenges proceed. The Supreme Court’s stay of injunctions that were protecting transgender service members seemed to resolve, for all practical purposes, the question of whether injunctions were properly issued in the first place.
Until now. The Ninth Circuit, home to two of the cases challenging the Trump ban, has invited plaintiffs to argue the injunctions again, if they so choose. Because of the Supreme Court’s stay orders, nothing changes for now—the ban remains in effect—but it’s now possible that lower courts could issue re-tooled, newly justified injunctions. No doubt the Department of Justice would ask the Supreme Court to stay new injunctions on the same basis as the old, but the Ninth Circuit may have opened a door that everyone thought was closed.
Commentators hailed the opinion as great news for transgender service members, with eye-catching headlines like these:
What the Ninth Circuit did say, however, was decidedly more mixed than that. True, there were helpful nuggets for transgender military plaintiffs. The most important was a ruling that discrimination against transgender persons warrants an “intermediate” level of judicial scrutiny, on par with established precedent for discrimination based on sex. This standard of review, said the Ninth Circuit, “is not a trivial burden” for the government to meet.
Also helpful to plaintiffs was the court’s conclusion that the transgender ban actually does discriminate against transgender people. You might think that goes without saying, but the government has tried to side-step the obvious by arguing that the ban only discriminates against people who transition gender, or people who experience gender dysphoria—both convenient proxies for the transgender people the ban targets for rejection or discharge.
But this is the end of what is helpful for transgender people in uniform, or who want to serve. The Ninth Circuit created a series of hurdles that will only make it easier to justify discrimination:
- The court found that the ban that finally took effect in April 2019 is different from—and more forgiving than—the ban that President Trump had in mind in 2017. This is one of the reasons the Ninth Circuit invited a new analysis of whether an injunction is warranted: it believes this is not the same policy that lower courts ruled on earlier. One reason the court thinks the policies are different is because the Pentagon recommended a “grandfather” clause to protect transgender people who came out in reliance on regulations.
- But this is an indefensible way to look at discrimination. It’s like saying that a hypothetical law prohibiting women from shopping in Home Depot is less discriminatory against women if the law includes a grace period allowing women already in the store when the ban went into effect to finish shopping first. It makes no sense to conclude that a transgender ban with a temporary reprieve is different from a ban without one, and even less so when DOD has threatened to eliminate the grandfather clause if it harms DOD’s case in court.
- The Ninth Circuit directed that “the district court must apply appropriate military deference to its evaluation of the 2018 Policy” because it “appears to have been the product of independent military judgment.” The court gave no weight to the fact that military experts—retired generals and admirals who were the number-one medical officers in their respective services—issued a 55-page report finding that DOD’s rationale for the ban was “wholly unpersuasive” and “contradicted by evidence.”
- While transgender military plaintiffs are free to present more evidence to support their “theory” (the Ninth Circuit’s word) that DOD was acquiescing to political pressure rather than making an independent military judgment, it ruled that the evidence presented so far was not enough.
- Good luck with finding that evidence, though, because the Ninth Circuit directed the district court to give more weight to the government’s assertion of executive privilege to withhold the evidence plaintiffs would need to prove their case. Incredibly, the Ninth Circuit called it a national defense concern that the government have an opportunity to justify withholding information about why it bans certain Americans from military service. The court wrote: “The military’s interest in full and frank communication about policymaking raises serious—although not insurmountable—national defense interests. These are among the concerns that the district court and the parties should consider in balancing the deliberative process privilege with Plaintiffs’ need for certain information.”
Every nugget of something helpful in the Ninth Circuit opinion comes paired with a poison pill that diminishes its value. Intermediate scrutiny applies, but judicial deference must be given to military decisions. A new injunction might be on the table, but courts should give more weight to the Trump administration’s desire to withhold the evidence you need to get a new injunction. Overall, something less than a “win” for transgender people in uniform.