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Federal Court Rejects Trump Administration Ploy and Orders Trial on Trans Military Ban

Posted on: April 14th, 2018 by Art Leonard No Comments

U.S. District Judge Marsha J. Pechman issued an Order on April 13 in Karnoski v. Trump, one of four pending legal challenges to the Trump Administration’s announced ban on military service by transgender people.  Judge Pechman, who sits in the Western District of Washington (Seattle), rejected the Administration’s argument that existing preliminary injunctions issued by her and three other federal district judges last year against the transgender ban are moot because of President Donald J. Trump’s March 23 Memorandum, which purported to “revoke” his August 25, 2017, Memorandum and July 26, 2017, tweets announcing the ban.  Karnoski v. Trump,  2018 WL 1784464 (W.D. Wash.).

Her skepticism as to this is clear from her description of events: “The 2018 Memorandum confirms [Trump’s] receipt of [Defense Secretary James Mattis’s] Implementation Plan, purports to ‘revoke’ the 2017 Memorandum and ‘any other directive [he] may have made with respect to military service by transgender individuals [an oblique reference to the July tweets],’ and directs the Secretaries of Defense and Homeland Security to ‘exercise their authority to implement any appropriate policies concerning military service by transgender individuals.’”  Thus, the judge rejected the Administration’s contention that Mattis was directed by the President to have a new study made to decide whether to let transgender people serve, and saw it for what it was: an order to propose a plan to implement Trump’s announced ban.

Judge Pechman also rejected the government’s argument that the policy announced in the February 22 Memorandum signed by Secretary James Mattis either deprives all the plaintiffs in the case of “standing” to sue the government, or that the policy it announces is so different from the one previously announced by President Trump that the current lawsuit, specifically aimed at the previously announced policy, is effectively moot as well. The government argued that due to various tweaks and exceptions to the policy announced on March 23, none of the individual plaintiffs in this case were threatened with the kind of individualized harm necessary to have standing, but Pechman concluded that each of the plaintiffs, in facts submitted in response to the March 23 policy, had adequately shown that they still had a personal stake in the outcome of this case.

Instead, and most consequentially, Judge Pechman found that the court should employ the most demanding level of judicial review – strict scrutiny – because transgender people are a “suspect class” for constitutional purposes.  However, Judge Pechman decided that it is premature to grant summary judgment to the plaintiffs, because disputed issues of material fact will require further hearings to resolve.  One is whether the government can prove that excluding transgender people from the military is necessary for the national security of the United States.  Another is whether the purported “study” that produced the February 22 “Report and Recommendations” and Mattis’s Memorandum are entitled to the kind of deference that courts ordinarily extend to military policies.

Judge Pechman’s boldest step is abandoning her prior ruling in this case that the challenged policies are subject only to heightened scrutiny, not strict scrutiny.  Although the Supreme Court has not been consistent or precise in its approach to the level of judicial scrutiny for constitutional challenges to government actions, legal scholars and lower courts have generally described its rulings as divided into three general categories – strict scrutiny, heightened scrutiny, and rationality review.

If a case involves discrimination that uses a “suspect classification,” the approach is strict scrutiny. The policy is presumed unconstitutional and the government has a heavy burden of showing that it is necessary to achieve a compelling government interest, and is narrowly tailored to achieve that interest without unnecessarily burdening individual rights.  The Supreme Court has identified race, national origin and religion as suspect classifications, and has not identified any new such classifications in a long time.  Lower federal courts have generally refrained from identifying any new federal suspect classifications, but the California Supreme Court decided in 2008 that sexual orientation is a suspect classification under its state constitution when it struck down the ban on same-sex marriage.

Challenges to economic and social legislation that do not involve “suspect classifications” or “fundamental rights” are generally reviewed under the “rational basis” test. They are not presumed unconstitutional, and the burden is on the plaintiff to show that there was no rational, non-discriminatory reason to support the challenged law.  Courts generally presume that legislatures have rational policy reasons for their actions, but evidence that a law was adopted solely due to animus against a particular group will result in it being declared unconstitutional.

During the last quarter of the 20th century, the Supreme Court began to identify some types of discrimination that fell somewhere between these existing categories, and the third “tier” of judicial review emerged, first in cases involving discrimination because of sex.  The Supreme Court has used a variety of verbal formulations to describe this “heightened scrutiny” standard, but it places the burden on the government to show that such a law actually advances an important government interest.

So far, litigation about transgender rights in the federal courts has progressed to a heightened scrutiny standard in decisions from several circuit courts, including recent controversies about restroom access for transgender high school students, public employee discrimination cases, and lawsuits by transgender prisoners. Ruling on preliminary injunction motions in the transgender military cases last fall, Judge Pechman and the three other federal judges all referred to a heightened scrutiny standard.  Now Judge Pechman blazes a new trail by ruling that discrimination against transgender people should be subject to the same strict scrutiny test used in race discrimination cases.

It is very difficult for the government to win a strict scrutiny case, but its best shot in this litigation depends on the court finding that the policy announced by Mattis is entitled to deference, and this turns on whether it is the product of “expert military judgment,” a phrase that appears in the Mattis Memorandum and the Report.   Judge Pechman has already signaled in her Order her skepticism as to this.  By characterizing this as an “Implementation Plan,” she implies that the question whether Trump actually consulted with generals and military experts back in July before tweeting his absolute ban remains in play, and she pointedly notes the continued refusal by the government to reveal who, if anyone, Trump consulted.

“Defendants to date have failed to identify even one General or military expert he consulted,” she wrote, “despite having been ordered to do so repeatedly. Indeed, the only evidence concerning the lead-up to his Twitter Announcement reveals that military officials were entirely unaware of the Ban, and that the abrupt change in policy was ‘unexpected.’”  Here she quotes Joint Chiefs Chairman Gen. Joseph Dunford’s statement the day after the tweets that “yesterday’s announcement was unexpected,” and news reports that White House and Pentagon officials “were unable to explain the most basic of details about how it would be carried out.”  She also notes that Mattis was given only one day’s notice before the announcement.  “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.”

Thus, it would be logical to conclude, as she had preliminarily concluded last year when she issued her injunction, that no military expertise was involved and so no deference should be extended to the policy. On the other hand, the new “Report and Recommendations” are now advanced by the government as filling the information gap and supporting deference.  But Judge Pechman remains skeptical.  (There are press reports, which she does not mention, that this document originated at the Heritage Foundation, a right-wing think tank, rather than from the Defense Department, and it has been subjected to withering criticism by, among others, the American Psychiatric Association.)

Citing their “study,” the government now claims “that the Ban – as set forth in the 2018 Memorandum and the Implementation Plan – is now the product of a deliberative review. In particular, Defendants claim the Ban has been subjected to ‘an exhaustive study’ and is consistent with the recommendations of a ‘Panel of Experts’ convened by Secretary Mattis to study ‘military service by transgender individuals, focusing on military readiness, lethality, and unit cohesion,’ and tasked with ‘conduct[ing] an independent multi-disciplinary review and study of relevant data and information pertaining to transgender Service members.’  Defendants claim that the Panel was comprised of senior military leaders who received ‘support from medical and personnel experts from across the [DoD] and [DHS],’ and considered ‘input from transgender Service members, commanders of transgender Service members, military medical professionals, and civilian medical professions with experience in the care and treatment of individuals with gender dysphoria.’  The Defendants also claim that the Report was ‘informed by the [DoD]’s own data obtained since the new policy began to take effect last year.’”

But, having “carefully considered the Implementation Plan,” wrote Pechman, “the Court concludes that whether the Ban is entitled to deference raises an unresolved question of fact. The Implementation Plan was not disclosed until March 23, 2018.  As Defendants’ claims and evidence regarding their justifications for the Ban were presented to the Court only recently, Plaintiffs and [The State of Washington, which has intervened as a co-plaintiff] have not yet had an opportunity to test or respond to these claims.  On the present record, the Court cannot determine whether the DoD’s deliberate 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.”

In other words, Pechman suspects that this purported “study” is a political document, produced for litigation purposes, and she is undoubtedly aware that its accuracy has been sharply criticized. Furthermore, she wrote, “The Court notes that, even in the event it were to conclude that deference is owed, it would not be rendered powerless to address Plaintiffs’ and Washington’s constitutional claims, as Defendants seem to suggest.”  And, she noted pointedly, the Defendants’ “claimed justifications for the Ban – to promote ‘military lethality and readiness’ and avoid ‘disrupt[ing] unit cohesion, or tax[ing] military resources’ – are strikingly similar to justifications offered in the past to support the military’s exclusion and segregation of African American service members, its ‘Don’t Ask, Don’t Tell’ policy, and its policy preventing women from serving in combat roles.”  In short, Pechman will not be bamboozled by a replay of past discriminatory policies, all of which have been abandoned because they were based mainly on prejudice and stereotyping.

Thus, although the judge denied for now the Plaintiffs’ motions for summary judgment, it was because factual controversies must be resolved before the court can make a final ruling on the merits.

The Defendants won only one tiny victory in this ruling: a concession that the court lacks jurisdiction to impose injunctive relief against President Trump in his official capacity. However, even that was just a partial victory for Defendants, as Judge Pechman rejected the suggestion that the court lacks jurisdiction to issue a declaratory judgment against the President.  “The Court is aware of no case holding that the President is immune from declaratory relief – rather, the Supreme Court has explicitly affirmed the entry of such relief,” citing several cases as examples.  “The Court concludes that, not only does it have jurisdiction to issue declaratory relief against the President, but that this case presents a ‘most appropriate instance’ for such relief,” she continued, taking note of Trump’s original Twitter announcement, and that two of the operative Memoranda at issue in the case were signed by Trump.  If, as Judge Pechman suspects, the Ban was devised in the first instance by Trump, and by Trump alone, a declaratory judgment that his action violated the Constitution would be entirely appropriate.

Plaintiffs are represented by a team of attorneys from Lambda Legal and OutServe-SLDN, with pro bono assistance from the law firms of Kirkland & Ellis LLP and Newman Du Wors LLP.

(Post script):

Federal District Judge Exhibits Ignorance in Evaluating Sexual Orientation Discrimination Claim

Posted on: November 23rd, 2013 by Art Leonard No Comments

I glance at many court opinions almost every day in my ongoing quest of materials for my newsletter, Lesbian/Gay Law Notes, so I have a fairly good idea of what passes for constitutional analysis in federal district court opinions, but every now and then something just jumps out at me as reflecting sheer ignorance.  One example of this is Fletcher v. Little, a November 20 decision by U.S. District Judge Sue L. Robinson (D. Delaware), who was appointed by George H.W. Bush in 1991. (2013 U.S. Dist. LEXIS 164831)  The context is pro se prisoner litigation.  Timothy Fletcher is a gay inmate in a Delaware prison who claims to have suffered harassment from fellow prisoners and unequal treatment from prison personnel, including failing to change his housing situation and punishing him for fighting with his cellmate when he claims he was fighting to defend himself against being raped.  Judge Fletcher’s ruling granting the sole remaining defendant summary judgment on Fletcher’s Section 1983 equal protection claim may be correct, given her summary of the factual record.  But her discussion of the equal protection analysis strikes me as woeful.

Here it is:  “To state a claim under the Equal Protection Clause, plaintiff must allege that he is a member of a protected class and he was treated differently from similarly situated inmates.  See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (noting that the Equal Protection Clause ‘is essentially a direction that all persons similarly situated should be treated alike.’)  If the litigant does not claim membership in a protected class, he must allege arbitrary and intentional discrimination in order to state an equal protection claim.  See Village of Willowbrook v. Olech, 528 U.S. 562 (2000).  Plaintiff must state facts showing that: ‘(1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.’  Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3rd Cir. 2006).  The Supreme Court has not recognized sexual orientation as a suspect class, and federal courts across the country have declined to identify homosexuals as a protected class.  See Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 n.9 (10th Cir. 2008) (collecting cases).  Notably, plaintiff did not plead, and there is no evidence of record, that plaintiff was treated differently from similarly situated individuals and, even if he had, that there was no rational basis for any difference in treatment.  Finally, no matter how offensive and derogatory the language that defendant allegedly used with respect to plaintiff’s sexual orientation, that alone does not give rise to a constitutional claim.  See Aleem-X v. Westcott, 347 F. App’x 731 (3rd Cir. 2009) (unpublished) (verbal abuse of a prisoner, even of the lewd variety, is not actionable under 42 U.S.C. sec. 1983).  Plaintiff fails to plead a facially plausible equal protection claim.  Therefore, the court will dismiss the claim as frivolous pursuant to 28 U.S.C. sec. 1915(e)(2)(b)(ii) and Sec. 1915A(b)(1).”

In other words, Judge Robinson joins in the sloppy terminology and analysis in the equal protection context that speaks of “protected class,” a concept that is in fact alien to the equal protection theory, and says that “the Supreme Court has not recognized sexual orientation as a suspect class.”   This is weird.  How can a characteristic — sexual orientation — be a “class”?   What the equal protection theory requires is that the government have some rational justification if it is treating groups of people defined by a particular characteristic unequally with people who do not share that characteristic.  For example, “women” are not a “protected class,” and neither are “men.”  But the equal protection clause has been construed by the Supreme Court to require a substantial legitimate justification when the government systematically treats women differently from men, because the Court regards discrimination on the basis of sex — i.e., the characteristic of a person’s sex — as grounds for suspecting that the treatment is attributable to stereotype or bias.  We don’t have “suspect classes.”  We have “suspect classifications.”  The question is not whether “homosexuals” are a suspect class.  It is whether sexual orientation is a suspect classification.  That is, must the government have a legitimate justification for treating gay people differently from non-gay people in a particular situation?  When a gay prison inmate expresses fear of being subjected to sexual assault by a cellmate, and a prison official treats that fear differently than they would treat the fear of a non-gay prison inmate of being sexually assaulted by their cellmate, then there is discrimination because of sexual orientation, and the government needs to explain why it takes the one complaint seriously and the other not.

Judge Robinson cites a 2008 decision by the 10th Circuit as her authority for the proposition that “federal courts across the country have declined to identify homosexuals as a protected class.”  This reference is out-of-date and once again uses an improper term.  It can be read to suggest that as of 2008, federal courts around the country generally agree that the equal protection clause provides no protection for gay people against discriminatory adverse treatment by government officials.  This statement was certainly wrong as of 2008, and is most definitely wrong today.  In 1996, the Supreme Court ruled in Romer v. Evans that a state policy adversely affecting gay people violates the 14th amendment if there is not some legitimate, non-discriminatory justification for it.  This year, in U.S. v. Windsor, the court adopted the same approach in striking down Section 3 of the Defense of Marriage Act, finding that Congress’s decision to deny all federal recognition to same-sex marriages lawfully formed under state law was a deprivation of the “equal liberty” guaranteed by the 5th Amendment’s due process clause (which incorporates an equal protection requirement).  So, whether it is a state or the federal government that is acting, the constitution protects gay people from unjustifiable government discrimination.  For a more detailed analysis, one should consult the decisions by the 1st and 2nd Circuits in the DOMA cases that led up to the Supreme Court’s Windsor ruling.  The 1st Circuit took an approach of using a more searching form of equal protection review for sexual orientation discrimination claims, following the approach suggested by Supreme Court Justice Sandra Day O’Connor in her concurring opinion in Lawrence v. Texas (2003).  The 2nd Circuit, by contrast, in agreement with the Justice Department, found that “sexual orientation” discrimination calls for “heightened scrutiny,” the standard used to evaluate sex discrimination claims.  In both circuits, the courts recognized that there is a sound historical basis for suspecting that when the government treats gay people adversely, it is acting out of bias or moral disapproval of homosexuality rather than from some legitimate, non-discriminatory policy justification.  Judge Robinson’s application of the traditionally highly-deferential rational basis test is not consistent with these recent court of appeals decisions, much less the Supreme Court’s decision in U.S. v. Windsor.

It is clear that the 10th Circuit’s Price-Cornelison opinion from 2008 is not an accurate statement of the law any longer, if it ever was.  I would argue that it failed to reflect accurately what the Supreme Court had done in Romer v. Evans, and so was already more than a decade out of date when it was written.  Federal decisions subsequent to Romer in several circuits drive home the point, including the 9th Circuit’s rulings in the military context, and several decisions involving gay student harassment cases, including the 7th Circuit’s Nabozny decision issued shortly after Romer.

And federal district judges who have a “gay equal protection macro” in their office computers that inserts the standard paragraph based on outdated or incompetently stated case law should delete it.  I suspect this may be what is going on.  I doubt anybody doing competent research in current federal cases would produce the paragraph that appeared in Judge Robinson’s opinion, so I suspect it may be a recycling of outdated text, perhaps harvested from older circuit cases such as Price-Cornelison, thus perpetuating outdated statements about the law.  If Judge Robinson’s paragraphs quoted above were newly composed by a law clerk assigned to this case, I would suggest that the judge assign her clerk to read the recent equal protection rulings that I’ve mentioned to avoid producing an inaccurate work product in the future.