Constitution Daily

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Constitutional milestone on transgender rights

April 16, 2018 by Lyle Denniston


For the first time in any court, a federal judge in Seattle has ruled that transgender people are entitled to the fullest protection of the Constitution against discrimination.  U.S. District Judge Marsha J. Pechman issued that ruling Friday in a case involving President Trump’s move to bar almost all transgender individuals from serving in the U.S. military, but the decision would also apply to other kinds of discrimination claims by transgender people.

In doing so, the judge refused an Administration request to lift a temporary order she had issued in December barring enforcement of the ban that was first announced last July by President Trump in a Twitter message that caught the U.S. military by surprise.  The ban was designed to undo completely a policy that the Obama Administration had adopted, permitting transgender individuals to join or continue serving in the military.

“Any attempt to exclude them from military service will be looked at with the highest level of care” by the courts, Judge Pechman wrote.

Other judges around the country have issued rulings giving transgender people some protection under the Constitution or under federal laws barring discrimination based on sex or gender, but no judge before the Seattle jurist had taken the broad next step of designating transgender individuals as a class of people entitled to full legal protection against government policy that discriminates against them.  (A transgender person is one who is assigned a biological gender at birth but who, in growing up, comes to develop the opposite gender identity.)

Judge Pechman reached her historic ruling on the level of constitutional protection with two conclusions.

First, she ruled that transgender people have long been the targets of discrimination based on their gender identity, that their identity is something basic to their human character rather than a personal choice, that they are fully capable of functioning in society, and that they lack political power sufficient to protect themselves against bias.  That meant she had designated them as what technically is called a “suspect class” – not because their identity stirs suspicion, but because that identity is so basic to them that any official policy that treats them less favorably is “suspect” under the Constitution’s guarantees of equality and due process.

Second, the judge said this designation entitles transgender people to have official forms of discrimination against them judged in court by “strict scrutiny” – the toughest test that government policy must meet in order to survive as constitutionally valid.  Under that test, a government policy challenged as discriminatory will be struck down unless it is proven to serve a “compelling government interest” and is “narrowly tailored” to do so.

Judge Pechman’s decision almost certainly will be appealed by the Administration, since it argued strenuously before her that the transgender policy is entirely constitutional and should now be cleared for enforcement.

The constitutional result for transgender people of the new ruling, if it withstands an appeal, would be that they would get the same constitutional protection that covers people who face discrimination based on their race or national origin.  And it is a slightly higher level of protection than protects people who face discrimination based on their sex as a man or as a woman.

Although the judge will now apply that test to the military’s transgender ban, she will consider doing so only after she gets more facts about how the policy was adopted.  Added facts, she said, will be necessary for her to determine whether the policy was adopted sincerely to serve the military’s mission, so that the judge should defer to the military choice.  Further facts, she also said, would be necessary for her to determine – even if she were to defer to some degree to the military – whether the ban actually fails the constitutional test.

The latest version of the ban, the judge noted, only emerged from the Pentagon in March, and the individuals and groups challenging the ban thus have not yet had a chance to contest the new data on how the policy was fashioned.

The further review, Judge Pechman said, will help her decide whether the Pentagon’s “deliberative process – including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon – is of the type to which courts typically should defer.”

The judge voiced some skepticism about the Pentagon’s arguments, saying they were “strikingly similar” to the justifications that the military previously had put forward to defend racial segregation in the military, the former ban on gays in the military, and the longtime ban – only recently relaxed — against allowing women to serve in combat roles in the military.

Because the case will now go on in her court, the judge ruled, she would not remove the prior temporary order she had issued against enforcement.  That order will apply to military and civilian government officials, but not to President Trump personally, she decided.

Even so, the judge denied the Administration request to remove the President from any part in the case from here on, concluding that he was sufficiently involved in instituting the ban and reinforcing it that an ultimate ruling against its constitutionally would apply to him, too.

The judge ordered lawyers for the Administration and for those individuals and groups challenging the ban to continue exchanging information about the case and to prepare for a full trial of the two issues still before her – whether to defer to the military and, even if she does defer to some degree, whether the ban is unconstitutional as a form of discrimination against a protected class of people: transgender individuals seeking to join the military or seeking to remain in the ranks.

Because Judge Pechman serves on a federal trial court, the first level of the federal judiciary, her ruling on the enforcement restriction could now be appealed to the U.S. Court of Appeals for the Ninth Circuit, as could her later ruling on the constitutionality of the ban.

Across the country, three other federal trial judges have also temporarily barred enforcement of the ban, on grounds narrower than those applied by Judge Pechman.  But so far no federal appeals court has ruled on those orders.

Because the Trump Administration has a keen interest in the military ban, and because the challengers are also keen on pursuing their legal contests against it, the controversy is likely to reach the Supreme Court, perhaps sooner rather than later.


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