New York Law School

Art Leonard Observations

Posts Tagged ‘transgender military ban’

New Supreme Court Term Potentially Momentous for LGBT Rights

Posted on: September 24th, 2018 by Art Leonard No Comments

The Supreme Court begins its October 2018 Term, which runs through June 2019, on October 1. During the week of September 24, the Court holds its “long conference,” during which the Justices consider the long list of petitions for review filed with the Court since last spring, and assembles its docket of cases for argument after those granted late last term are heard.  While there are several petitions involving LGBT-related issues pending before the Court, it is unlikely that there will be any announcement about these cases until late October or November at the earliest.

Three of the pending petitions raise one of the most hotly contested LGBT issues being litigated in the lower federal courts: Whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, can be interpreted to extend to claims of discrimination because of sexual orientation or gender identity. One of the three cases also raises the question whether an employer with religious objections gender transition has a defense under the Religious Freedom Restoration Act.  Another petition presents the question whether a judge who has religious objections to conducting same-sex marriages has a 1st Amendment right to refuse to do so.

Although many state civil rights laws ban such discrimination, a majority of states do not, so the question whether the federal law applies is particularly significant in the Southeast and Midwest, where state courts are generally unavailable to redress such discrimination.

With President Donald J. Trump’s nomination of Brett Kavanaugh to fill the seat vacated by Justice Anthony M. Kennedy, Jr.’s, retirement, which was effective on July 31, petitions pending at the Supreme Court took on heightened significance while the Senate confirmation process was taking place. The Senate Republican leadership had hoped to speed the process so that Trump’s appointee would be seated on the Court by the time the term began on October 1, but accusations of long-ago sexual misconduct by Kavanaugh have caused the Judiciary Committee’s vote to be delayed.  Meanwhile, the eight-member Court had to confront the question during their long conference of whether to grant review on cases as to which the justices were likely to be evenly divided, when they were unsure when the ninth seat would be filled and who would fill it.  As of the end of September, they had already scheduled oral arguments on cases granted last spring running through the first week of November.

In Bostock v. Clayton County Board of Commissioners, a three-judge panel of the Atlanta-based 11th Circuit Court of Appeals affirmed a decision by the U.S. District Court for the Northern District of Georgia to dismiss Gerald Lynn Bostock’s Title VII claim alleging employment discrimination because of his sexual orientation. The panel held that it was bound by prior circuit precedent, a 1979 ruling by the old 5th Circuit in Blum v. Gulf Oil Corporation, which was recently reaffirmed by a panel of the 11th Circuit in Evans v. Georgia Regional Hospital, which was denied by review by the Supreme Court last December.

Three-judge panels are required to follow circuit precedents, which can be overruled only by an en banc court (the full circuit bench) or the Supreme Court. The 11th Circuit Bostock panel also noted that Mr. Bostock had “abandoned any challenge” to the district court’s dismissal of his alternative claim of gender stereotyping sex discrimination, which is significant because an 11th Circuit panel had ruled in 2011 in Glenn v. Brumby that a transgender plaintiff could bring a sex discrimination claim under a gender stereotyping theory.  The panel relied on a Supreme Court ruling from 1989, Price Waterhouse v Hopkins, which held that requiring employees to conform to the employer’s stereotyped view of how men and women should act was evidence of discrimination because of sex.  The court noted that in Evans, a majority of the 11th Circuit panel had rejected extending the same theory to uphold a sexual orientation claim, and this, of course, is also now binding 11th Circuit precedent.

Mr. Bostock sought en banc reconsideration of the panel decision by the full 11-member bench of the 11th Circuit, but he also filed a petition with the Supreme Court on May 25.  On July 18, the 11th Circuit denied the petition for rehearing en banc, voting 9-2.  Circuit Judge Robin Rosenbaum, who was the dissenting member of the three-judge Evans panel, released a dissenting opinion, joined by Circuit Judge Jill Pryor.

Although the Evans and Bostock panel decisions may have been foreordained by circuit precedent, recent developments persuaded the dissenters that the issue raised in this case “is indisputably en-banc-worthy. Indeed,” continued Rosenbaum, “within the last fifteen months, two of our sister Circuits have found the issue of such extraordinary importance that they have each addressed it en banc.  See Zarda v. Altitude Express, Inc.; Hively v. Ivy Tech Community College of Indiana.  No wonder.  In 2011, about 8 million Americans identified as lesbian, gay or bisexual,” citing a demographic study published by the Williams Institute at UCLA Law School.  “Of those who so identify, roughly 25% report experiencing workplace discrimination because their sexual preferences do not match their employers’ expectations.  That’s a whole lot of people potentially affected by this issue.”

Judge Rosenbaum strongly argued that the 11th Circuit’s implicit decision to “cling” to a “39-year-old precedent” that predates Price Waterhouse by a decade is ignoring “the Supreme Court precedent that governs the issue and requires us to reach the opposite conclusion,” as she had argued in her Evans dissent. “Worse still,” she wrote, “Blum’s ‘analysis’ of the issue is as conclusory as it gets, consisting of a single sentence that, as relevant to Title VII, states in its entirety, ‘Discharge for homosexuality is not prohibited by Title VII.’  And if that’s not bad enough, to support this proposition, Blum relies solely on Smith v. Liberty Mutual Insurance Co. (5th Cir. 1978) – a case that itself has been necessarily abrogated not only by Price Waterhouse but also by our own precedent in the form of Glenn v. Brumby. I cannot explain why a majority of our Court is content to rely on the precedential equivalent of an Edsel with a missing engine,” Rosenbaum continued, “when it comes to an issue that affects so many people.”

Rosenbaum argued that regardless of what a majority of the court’s views might turn out to be on the substantive issue, it had an obligation to, “as a Court, at least subject the issue to the crucial crucible of adversarial testing, and after that trial yields insights or reveals pitfalls we cannot muster guided only by our own lights, to give a reasonable and principled explanation for our position on this issue – something we have never done.” But, shamefully, the 11th Circuit has absented itself from the current interpretive battle.

Bostock is represented by Thomas J. Mew IV, Timothy Brian Green, and Brian J. Sutherland of Buckley Beal LLP, Atlanta, who filed the petition for certiorari on May 25, with Sutherland listed as counsel of record. Clayton County filed a “Waiver” of its right to respond to the petition on June 27, and the petition was circulated to the justices’ chambers on July 3, anticipating the “long conference.” But evidently some of the justices were not satisfied to consider taking this case without hearing from the “other side,” so on July 13 it sent a request for a response, to be due August 13.  Clayton County retained counsel, Jack R. Hancock and William H. Buechner, Jr., of Freeman Mathis & Gary LLP, Forest Park, GA, who filed the County’s response to the petition on August 10, opposing the petition.  They argued that the appeal was an attempt to get the Court to do Congress’s work, which should be rejected.  On August 29, the Supreme Court clerk again circulated all of these papers to the Justices’ Chambers and the petition was scheduled for consideration at the “long conference.”

The other case pending before the Supreme Court presenting the same question, but this time appealing from the employer’s side, is Altitude Express v. Zarda, from the New York-based 2nd Circuit. A three-judge panel had affirmed the district court’s decision to dismiss a Title VII sex discrimination claim by Donald Zarda, a gay sky-diving instructor, who based his claim on alternative assertions of gender stereotyping or sexual orientation discrimination, on April 18, 2017.  Zarda died in a sky-diving accident while the case was pending, but his estate stepped in to continue the lawsuit.  The 2nd Circuit’s Chief Judge, Robert Katzmann, attached a concurring opinion to the panel ruling, calling for the 2nd Circuit to reconsider this issue en banc in an appropriate case, noting the then-recent ruling by the 7th Circuit in Hively and other developments.

Thus encouraged, Zarda’s Estate sought and obtained en banc review, resulting in the 2nd Circuit’s decisive repudiation of its past precedent on February 26, 2018.  Judge Katzmann’s opinion for the en banc court held that discrimination because of sexual orientation is, at least in part, discrimination because of sex, and thus actionable under Title VII.  The Estate of Zarda is represented by Gregory Antollino, New York, NY, with Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY, on the brief.

Saul D. Zabell and Ryan T. Biesenbach, Zabell & Associates, P.C., of Bohemia, N.Y., counsel for Altitude Express, filed a Supreme Court petition on May 29. Responsive papers were filed over the summer, and all the papers were distributed on September 5 to the Justices’ Chambers anticipating the “long conference.”  The federal government, consistent with positions announced in various contexts by Attorney General Jeff Sessions, rejects the 2nd Circuit’s en banc ruling and, if certiorari were granted in Bostock or in Altitude Express v. Zarda, would presumably seek to participate in oral argument.

The third pending Title VII petition, in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., comes from the Cincinnati-based 6th Circuit, where a three-judge panel ruled on March 7 that the Funeral Home’s discharge of transgender funeral director Aimee Stephens violated Title VII.  The American Civil Liberties Union represents Stephens.  The EEOC, which had ruled years earlier that it considered discrimination because of gender identity or gender transitioning to be discrimination because of sex, initiated the lawsuit in the U.S. District Court in the Eastern District of Michigan.  Stephens intervened as co-plaintiff.

Although the district judge accepted the EEOC’s argument that this could be a valid sex discrimination case using the gender stereotype theory, he concluded that the funeral home had a right under the Religious Freedom Restoration Act (RFRA) to be free of government prosecution, because of the burden it placed on the funeral home owner’s religious beliefs.

The 6th Circuit affirmed in part and reversed in part. In an opinion by Circuit Judge Karen Nelson Moore, the court agreed with the district judge that gender identity discrimination can be the basis of a Title VII claim, but the court went a step further than prior panel opinions by deciding, as the EEOC had argued, that discrimination “because of sex” inherently includes discrimination against employees who are transgender, without any need to analyze the question of gender stereotypes. The court of appeals reversed the district court’s ruling on the RFRA defense, finding that requiring the employer to continue to employ a transgender funeral director would not substantially burden his right to free exercise of religion.  The court specifically rejected the employer’s reliance on presumed customer non-acceptance of a transgender funeral director as a legitimate justification for the discharge.  The court also rejected the employer’s argument that because of the religiosity of the owner and the way he conducted his business, his funeral directors should be treated as “ministers” as to whom the owner would enjoy a 1st Amendment-based “ministerial exception” from complying with Title VII.

One might anticipate that a petition to review a Court of Appeals decision that was issued on March 7 would generate the necessary paperwork in time to be considered during the “long conference,” but in this case Alliance Defending Freedom (ADF), the anti-gay religious litigation group that is representing the funeral home, obtained an extension of time to file their petition, which was not docketed until July 20. Responses were due August 23. Then the Court granted a request from the Solicitor General’s Office, representing the government, for an extension of time to file a response, which was granted to September 24, 2018, the date on which the “long conference” would begin.  But the Solicitor General wrote to the Court again as this deadline approached requesting a further extension to October 24, which was granted.

At the end of September the government’s official response to this petition had not been filed. With the change of administration since the EEOC started this case, and the position on these issues announced by the Justice Department last year, the Solicitor General would probably urge the Court to take the case and reverse the 6th Circuit on both the Title VII and RFRA rulings.    As to the former, last year Attorney General Jeff Sessions issued written guidance that gender identity discrimination does not violate Title VII, and, as to the latter, President Trump issued an executive order, recently amplified by Attorney General Sessions, directing the Executive Branch to give maximum play to free exercise of religion claims.

But there is a further twist to the government’s response. Although the Solicitor General represents the government in the Supreme Court, an administrative agency such as the EEOC could represent itself, if it gets permission from the Solicitor General.  The EEOC is the plaintiff in this case, and the winning party in the 6th Circuit.  Trump’s appointments of new EEOC commissioners may change the agency’s view of these issues, but as of now the agency’s position is that gender identity discrimination violates Title VII.   One of the Supreme Court’s most important functions is to deal with interpretations of federal statutes as to which the lower courts are divided, and there are precedents in several of the circuit courts that differ from the 6th Circuit’s view in this case, but the trend of lower court decisions around the country is to recognize gender identity discrimination claims under Title VII using the gender stereotype theory.  Neither the Solicitor General nor the EEOC has announced who will be filing a response on behalf of the government, and what position the government may take in the case.

Counsel for the Funeral Home filed a blanket consent with the court to allow amicus briefs in this case. On the original response date of August 23, the Clerk recorded filing of amicus briefs from the Jewish Coalition for Religious Liberty, the Foundation for Moral Law, the State of Nebraska on behalf of itself and fifteen other states, and Public Advocate of the United States (despite its name, a private organization), all urging the Court to take the case and reverse the 6th Circuit for a variety of reasons, taking issue with the 6th Circuit’s decision on every conceivable point.

ADF, counsel for the funeral home, sent a letter to the Court on September 13, suggesting that because the three Title VII petitions present common questions of statutory interpretation, they should be considered together. After receiving the letter, the Court removed the two sexual orientation cases from the agenda for the long conference, which means that the extension of time granted to all the respondents in the Funeral Home case may delay the Court’s consideration of the other two Title VII petitions for several months.

It would be very surprising if the Court did not grant the petitions in Altitude Express and Harris Funeral Homes, as both court of appeals rulings extend existing splits in circuit court interpretations of Title VII, the nation’s basic employment discrimination statute, and employ reasoning that potentially affects the interpretation of many other federal sex discrimination statutes, such as the Fair Housing Act, the Equal Credit Opportunity Act, Title IX of the Education Amendments Act, and the Affordable Care Act. But it takes four votes to grant a petition for review in the Supreme Court, and as long as the Court remains evenly divided between Democratic and Republican appointees, it is possible that both “camps” will shy away from taking on cases where a tie vote on the merits would affirm the lower court ruling without an opinion or a nationally-binding precedent.

Also pending before the Court is a petition filed on behalf of Oregon Judge Vance D. Day, who was disciplined by the Oregon Commission on Judicial Fitness and Disability in a report that was approved by the Oregon Supreme Court for, among other things, refusing to perform same-sex marriages, claiming a 1st Amendment privilege.  The petition, filed on July 23, asks the Court to decide whether Judge Day’s constitutional rights were violated both procedurally and substantively, and raises the contention that judges have a constitutional right to refuse to perform same-sex marriages, despite the Supreme Court’s ruling that same-sex couples have a fundamental right to marry as well as to equal protection of the law.  Judge Day is represented by James Bopp, Jr., and other members of his Terre Haute, Indiana law firm.  Mr. Bopp is a frequent advocate in opposition to LGBT and reproductive rights.  The petition is on the agenda for the Court’s October 11 conference.

There are several other controversies brewing in the lower courts that could rise to the level of Supreme Court petitions during the October 2018 Term.

Following its Masterpiece Cakeshop decision on June 4, the Court vacated a decision by the Washington State Supreme Court against a florist who had refused to provide floral decorations for a same-sex wedding and sent the case back to the Washington court for reconsideration in light of the Masterpiece ruling. This is one of several cases pending in the lower courts, some rising to the federal court of appeals or state supreme courts level, raising the question of religious freedom exemptions from compliance with anti-discrimination laws.  The Supreme Court’s evasion of the underlying issue in Masterpiece means that the issue will come back to the Supreme Court, possibly this term, especially as some lower courts have already seized upon language in Justice Kennedy’s opinion observing that the Court has never recognized a broad religious exercise exemption from complying with anti-discrimination laws.  Cases are pending concerning wedding cakes, wedding invitations, and wedding videos. And, in a different arena, the Court recently denied a request by Catholic authorities in Philadelphia to temporarily block the City from suspending referrals of children to a Catholic adoption agency that refuses to deal with same-sex couples.  The District Court upheld the City’s position, as Gay City News previously report, finding a likely violation of Philadelphia’s public accommodations ordinance that covers sexual orientation and rejecting an exemption for the Catholic adoption agency. This kind of issue could also rise to the Supreme Court, depending how lower court litigation works out.

Litigation continues over a claim by some Houston Republicans that the City is not obligated to provide equal benefits to the same-sex spouses of Houston employees. The case is pending before a state trial judge after the Texas Supreme Court, in a blatant misinterpretation of the Obergefell decision, held that the U.S. Supreme Court had not necessarily decided the issue. This was “blatant” because the Obergefell opinion specifically mentioned insurance as one of the important reasons why same-sex couples had a strong interest in being able to marry, making marriage a fundamental right.  Insurance was mentioned as part of a list of reasons, another listed being “birth certificates,” and the Supreme Court specifically quoted from that list in Pavan v. Smith, the 2017 case in which it reversed the Arkansas Supreme Court, rejecting that court’s opinion that Obergefell did not decide the question whether same-sex parents had a right to be listed on birth certificates.  Pavan was decided just days before the Texas Supreme Court issued its obtuse and clearly politically-motivated decision in Pidgeon v. Turner!  One need not guess too hard at the political motivation.  Texas Supreme Court justices are elected, and that court was deluged with communications of protest and pressure from the state’s top elected Republican officials after an earlier announcement that the court was declining to review the Texas Court of Appeals’ decision in this case, which had found Obergefell and the 5th Circuit Court of Appeals’ subsequent marriage equality ruling, DeLeon, to be controlling on the issue.

Before long the Court will probably take up the question whether transgender public school students have a right under Title IX of the Education Amendments of 1972 and the Equal Protection Clause to use restroom and locker room facilities consistent with their gender identity. The Court granted a petition in Gavin Grimm’s case from Virginia and scheduled argument to take place during the October 2016 Term, but the Trump Administration’s withdrawal of the Obama Administration’s interpretation of Title IX persuaded the Court to cancel the argument and send the case back to the 4th Circuit for reconsideration. The 4th Circuit sent the case back to the district court, where the school district argued that it was moot because Grimm had graduated.  But Grimm continues to battle the district’s policy as an alumnus.  The district court has refused to dismiss a revised version of Grimm’s lawsuit.   This is one issue as to which there is not a significant split of lower court authority, but the issue continues to rage, school districts continue to discriminate against transgender students, the U.S. Departments of Education and Justice in the Trump Administration have reversed the Obama Administration’s position that sex discrimination laws protect transgender people, and religious litigation groups such as ADF continue to generate lawsuits, representing parents and students who oppose school district policies that allow transgender students to use the desired facilities.  The issue is far from settled, and it may work its way to the Court again soon.

Another candidate for Supreme Court review is Trump’s transgender military service ban, first tweeted in July 2017. The issue that may bring it up to the Court quickly is the government’s refusal to comply with pre-trial discovery orders, in which plaintiffs in the four pending challenges are seeking information about the alleged basis for the ban, noting Trump’s vague reference to having consulted “my generals and military experts” before his tweet, and the undisclosed identity of the members of Defense Secretary Mattis’s “Task Force” that produced the memorandum he submitted in support of his version of the ban that Trump authorized him to adopt in March 2018.  As of now, preliminary injunctions from the four district judges have kept the ban from going into effect and required the Defense Department to accept applications from transgender people, beginning January 1, 2018.  On September 18, District Judge Jesus Bernal in Riverside, California, became the fourth district judge to reject the government’s motion for summary judgment, and to refuse to dissolve the preliminary injunction he had previously issued.   Seattle District Judge Marsha Pechman’s discovery order is being appealed to the 9th Circuit Court of Appeals.  The Solicitor General recently filed a petition with the Supreme Court to stay Judge Pechman’s order, since her deadline for compliance was looming and the 9th Circuit had not acted on the government’s motion to stay, but the 9th Circuit then granted the motion and the petition was withdrawn.  If any one of the four district courts grants the plaintiffs’ motion for summary judgment, of course, the government will appeal on the merits and the case may end up in the Supreme Court.  This litigation may provide the vehicle for the Court to determine the extent to which government discrimination against transgender people violates the Equal Protection requirement of the 5th Amendment.

Watch this space for further developments!

Trump Administration Suffers More Setbacks in Defending Transgender Military Ban

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

Two federal district judges have issued new rulings in lawsuits challenging the Trump Administration’s ban on military service by transgender individuals, mainly adverse to the government.  [Addendum:  After this was drafted, we received a decision from a federal magistrate judge in Baltimore on discovery issues in one of the other challenged to the transgender ban.  Our summary appears at the end of this posting.]

After the San Francisco-based U.S. Court of Appeals for the 9th Circuit refused to lift Seattle U.S. District Judge Marsha Pechman’s preliminary injunction against the policy on July 18, she issued a new ruling on July 27 granting the plaintiffs’ motion to compel discovery and denying the government’s motion for a protective order that would shield President Trump from having to respond to any discovery requests.  The Justice Department immediately announced that it would appeal this ruling to the 9th Circuit Court of Appeals.  Judge Pechman had previously denied motions for summary judgment in the case, having found that there was a need for discovery before such a ruling could take place.

On August 6, D.C. District Court Judge Colleen Kollar-Kotelly, who had issued the first preliminary injunction against the policy last year, issued two decisions. In one, she rejected the government’s request to vacate her preliminary injunction as moot, finding that the plaintiffs have standing to challenge the “new” policy described by Defense Secretary James Mattis in his February 2018 memo to the President, and agreeing with Judge Pechman that the “new” policy is not essentially different from the “old” one announced by President Trump a year ago. However, Judge Kollar-Kotelly granted a motion by the government to dismiss President Trump as an individual named defendant in the case.

Two other lawsuits challenging the policy are pending in federal district courts in Riverside, California, and Baltimore, Maryland. In both cases, the judges have received motions from the parties that are awaiting decision, similar to those filed with Judges Pechman and Kollar-Kotelly.

To recap for those coming late to this story, Trump tweeted a ban on transgender military service on July 26, 2017, and issued a memorandum a month later describing the policy in slightly more detail, charging Secretary Mattis to propose a plan for implementation by late February, 2018, with the goal of implementing the policy later in March. Trump’s memo specified that Mattis’s previous directive to allow transgender applicants to join the military, which had been announced at the end of June 2017 to go into effect on January 1, 2018, was to be indefinitely delayed, as Trump’s policy would not allow transgender people to enlist.  Mattis announced that no action would be taken against now-serving transgender personnel pending the implementation of the policy in March 2018, but there were reports of transgender personnel suffering cancellations of promotions and desire assignments and of planned medical procedures after the policy was announced.

Mattis’s memo to the president in February proposed some modifications to the policy that had been announced in Trump’s August memorandum. Transgender personnel who were already serving and had transitioned and were “stable” in their preferred gender would be allowed to continue serving, based on a determination that the investment in their training outweighed whatever “risk” they posed to the readiness of the military.  Furthermore, transgender individuals who had not transitioned or been diagnosed with “gender dysphoria” would be allowed to enlist and serve, provided they refrained from transitioning and served in the sex identified at birth.  Otherwise, those diagnosed with “gender dysphoria” would be prohibited from enlisting or serving, and those who could not comply with these requirements would be discharged.  The proposal was based on a “finding” by a rigged special committee apparently dominated by committed opponents of transgendered service that allowing transgender people to serve in the military was harmful to the operational efficiency of the service – a finding based on no factual evidence and oblivious to the fact that transgender people had been serving openly without any problems since the Obama Administration lifted the prior ban at the end of June 2016.

Four lawsuits had been filed in response to the summer 2017 policy announcement, and in a matter of months the four district courts had issued preliminary injunctions, having found it likely that the plaintiffs would prevail on their argument that the policy violates the Equal Protection requirements of the 5th Amendment of the Bill of Rights. As compelled by the preliminary injunctions, the Defense Department allowed transgender people to submit applications to enlist beginning January 1, 2018, after losing a last-ditch court battle to continue the enlistment ban, but there were reports that the applications they received were getting very slow processing, and all indications are that few have been accepted for service.

Trump responded to Mattis’s February 2018 memo by “withdrawing” his prior memo and tweet, and authorizing Mattis to adopt the implementation plan he was recommending by late March. The Justice Department then filed motions in all the lawsuits seeking to lift the preliminary injunctions. Their argument was, in part, that the “new” policy was sufficiently different from the one that had been “withdrawn” as to moot the lawsuits. They further contended that the plaintiffs who were already serving and would be allowed to continue serving under the “new” policy no longer had standing to challenge the policy in court.  The Department also argued that plaintiff’s attempts to conduct discovery in the case should be put on hold until there was a definitive appellate ruling on their motion to lift the preliminary injunctions.

On April 13, Judge Pechman rejected the government’s motion to lift the preliminary injunction, having already ordered that discovery proceed. In his initial tweet, Trump had claimed that he had consulted with generals and other experts before adopting the policy, but the identities of these people were not revealed, and the government has stonewalled against any attempt to discover their identities or any internal executive branch documents that might have been generated on this issue, making generalized claims of executive privilege.  Similarly, the February memorandum released under Mattis’s name did not identify any of the individuals responsible for its composition, and naturally the plaintiffs are also seeking to discover who was involved in putting it together and what information they purported to rely upon.

Judge Pechman’s July 27 order to compel discovery specified the materials sought by the plaintiffs, and pointed out that under federal evidentiary rules, any claim of privilege against disclosure is subject to evaluation by the court. “The deliberative privilege is not absolute,” she wrote.  “Several courts have recognized that the privilege does not apply in cases involving claims of governmental misconduct or where the government’s intent is at issue.”

The question, under 9th Circuit precedents, is “whether plaintiffs’ need for the materials and the need for accurate fact-finding override the government’s interest in non-disclosure.  In making this determination, relevant factors include: (1) the relevance of the evidence; (2) the availability of other evidence; (3) the government’s role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.”  There is a formal process for invoking privilege, which requires the government to “provide precise and certain reasons for preserving the confidentiality of designated material.”

In this case, Judge Pechman had previously determined that discrimination because of gender identity involves a “suspect classification” for purposes of equal protection requirements, which means the government has the burden of proving that there is a compelling justification for the discrimination. In this case, however, the government has articulated only a generalized judgment that service by transgender individuals is too “risky” based on no facts whatsoever.  Judge Pechman concluded in granting the plaintiffs’ discovery motion that “the deliberative process privilege does not apply in this case.”

The government had moved for a protective order “precluding discovery directed at President Trump.” While conceding that Trump has “not provided substantive responses or produced a privilege log” listing specifically what information has to be protected against disclosure, the government contended that “because the requested discovery raises ‘separation of powers concerns,’ Plaintiffs must exhaust discovery ‘from sources other than the President and his immediate White House advisors and staff’ before he is required to formally invoke the privilege.”

Judge Pechman noted that so far the government has refused to provide any information about how the policy decision was made or developed, and has failed to identify the specific documents and other information for which it claims privilege. In a footnote, she commented, “The Court notes that Defendants have steadfastly refused to identify even one general or military official President Trump consulted before announcing the ban.”  Thus, she found, there was no basis for the court to evaluate “whether the privilege applies and if so, whether Plaintiffs have established a showing of need sufficient to overcome it.”  Indeed, she concluded in a prior decision, as far as the record stands, it looks as if Trump made the whole thing up himself without relying on any military expertise. Thus, she has preliminarily rejected the government’s contention that the policy would enjoy the deference normally extended to military policies adopted based on the specialized training and expertise of the military policy makers.

Judge Kollar-Kotelly’s August 6 ruling focused on an issue that Judge Pechman had previously decided: whether the plaintiffs had standing to continue challenging the policy after Mattis’s memo supplanted the “withdrawn” earlier policy announcements. She had little trouble in determining that all the plaintiffs, even those who are currently-serving transgender personnel who would be allowed to consider serving under the “new” policy, still had standing, which requires a finding that implementing the policy would cause them harm.

“The Court rejects Defendants’ argument that Plaintiffs no longer have standing because they are not harmed by the Mattis Implementation Plan,” she wrote, stating that “the effect of that plan would be that individuals who require or have undergone gender transition would be absolutely disqualified from military service, individuals with a history or diagnosis of gender dysphoria would be largely disqualified from military service, and, to the extent that there are any individuals who identify as ‘transgender’ but do not fall under the first two categories, they would be allowed to serve, but only ‘in their biological sex’ (which means that openly transgender persons would generally not be allowed to serve in conformance with their identity.)” Furthermore, those who have already transitioned and are now serving would be doing so under the stigma of having been labeled as “unfit” for military service and presenting an undue risk to military readiness, and would likely suffer prejudice in terms of their assignments and their treatment by fellow military personnel, as well as emotional harm.

“The Mattis Implementation Plan sends a blatantly stigmatizing message to all members of the military hierarchy that has a unique and damaging effect on a narrow and identifiable set of individuals, of which Plaintiffs are members,” she wrote. They would be serving “pursuant to an exception to a policy that explicitly marks them as unfit for service.  No other service members are so afflicted.  These Plaintiffs are denied equal treatment because they will be the only service members who are allowed to serve only based on a technicality; as an exception to a policy that generally paints them as unfit.”

She concluded that “because their stigmatic injury derives from this unequal treatment, it is sufficient to confer standing.” She pointed out that beyond stigmatization, the Implementation Plan “creates a substantial risk that Plaintiffs will suffer concrete harms to their careers in the near future.  There is a substantial risk that the plan will harm Plaintiffs’ career development in the form of reduced opportunities for assignments, promotion, training, and deployment.  These harms are an additional basis for Plaintiffs’ standing.”  She rejected the government’s contention that these harms were only “speculative.”

Furthermore, she rejected the claim that Trump’s “withdrawal” of his August 2017 memorandum and the substitution of the Mattis Implementation Plan made the existing lawsuits moot, agreeing with Judge Pechman that the “new” plan was merely a method of “implementing” the previously announced policy. She found that the Implementation Plan “prevents service by transgender individuals,” just as Trump had directed in August 2017, and the minor deviations from the complete categorical ban were not significant enough to make it substantially different.

Thus she refused to dissolve the preliminary injunction. She refrained from ruling on motions for summary judgment on the merits of the equal protection claim, because there are sharply contested facts in this case and no discovery has taken place, so it can’t be decided purely as a matter of law. The facts count here in court, even if they don’t seem to count in the White House or the Defense Department.

However, Judge Kollar-Kotelly granted the government’s motion to partially dissolve the injunction as it applies personally to Trump, and granted the motion to “dismiss the President himself as a party to this case. Throughout this lawsuit,” she wrote, “Plaintiffs ask this Court to enjoin a policy that represents an official, non-ministerial act of the President, and declare that policy unlawful.  Sound separation-of-power principles counsel the Court against granting these forms of relief against the President directly.”  Thus, she concluded, there was no reason to retain Trump as a defendant.  If the Plaintiffs prevail on the merits, an injunction aimed at the Defense Department’s leadership preventing the policy from taking effect will provide complete relief.

The Plaintiffs complained that removing Trump from the case as a defendant would undermine their attempt to discover the information necessary to make their case, since individuals who are parties to litigation are particularly susceptible to discovery requests. The judge wrote that “it would not be appropriate to retain the President as a party to this case simply because it will be more complicated to seek discovery from him if he is dismissed.  To the extent that there exists relevant and appropriate discovery related to the President, Plaintiffs will still be able to obtain that discovery despite the President not being a party to the case.”  And, she concluded, “Plaintiffs will be able to enforce their legal rights and obtain all relief sought in this case without the President as a party.”

The judge treated as moot the Defendants’ motion for a protective order shielding Trump from having to respond to discovery requests. “However,” she wrote, “the Court reiterates that dismissing the President as a party to this case does not mean that Plaintiffs are prevented from pursuing discovery related to the President.  The court understands that the parties dispute whether discovery related to the President which has been sought by Plaintiffs is precluded by the deliberative process or presidential communication privileges, and the Court makes no ruling on those disputes at this point. The Court will be issuing further opinions addressing other dispositive motions that have been filed in this case.  After all of those opinions have been issued, if necessary, the Court will give the parties further guidance on the resolution of the discovery requests in this case.”  In a footnote, Judge Kollar-Kotelly noted Judge Pechman’s July 27 discovery order, and that defendants were appealing it to the 9th Circuit.  The judge emphasized that the preliminary injunction remains in effect for all of the remaining defendants in the case, so the policy may not be implemented while the case continues.

The possibility that Trump will be ordered to submit to questioning under oath in at least one of these cases remains a reality, but any attempt by the Plaintiffs to do so would undoubtedly arouse spirited opposition from the Defense Department, officially based on claims of privilege, but realistically due to the likelihood that Trump would perjure himself under such questioning. Recall the historical precedent:  The House of Representatives voted to impeach President Clinton based, in part, on the charge that he committed perjury during questioning before a grand jury by the Special Counsel investigating his affair with Monica Lewinski.  Thus, at least in that case, the House considered presidential perjury to be an impeachable offense.

Plaintiffs in the Seattle case, Karnoski v. Trump (in which the president remains a defendant), are represented by Lambda Legal and pro bono attorneys from Kirkland & Ellis. Plaintiffs in the D.C. case, Jane Doe 2 v. Trump, are represented by the National Center for Lesbian Rights, GLBTQ Legal Advocates & Defenders (GLAD), and pro bono attorneys from Wilmer Cutler Pickering Hale & Dorr LLP and Foley Hoag LLP.

Addendum:

On August 14, U.S. Magistrate Judge A. David Copperthite, to whom Baltimore U.S. District Judge Marvin J. Garbis had referred discovery matters in Stone v. Trump, another one of the pending cases, issued a ruling granting in part the plaintiffs’ motion to compel discovery of deliberative materials regarding Trump’s July 2017 tweet, August 2017 memorandum, the “activities of the DoD’s so-called panel of experts and its working groups” who put together the memorandum ultimately submitted by Mattis to the President in February 2018, and deliberative materials regarding that Implementation Plan and the President’s March memorandum, “including any participation or interference in that process by anti-transgender activists and lobbyists.” However, noting that a motion is pending before Judge Garbis to dismiss Trump as a defendant in the case, Judge Copperthite declined to rule on the government’s request for a protective order that would shield Trump from having to respond to discovery requests directed to him, “pending the resolution of the motion to dismiss President Trump as a party.”  Cooperthite wrote that “no interrogatories or document requests will be directed to President Trump as a party, but may be directed to other parties pursuant to this Memorandum Opinion.  If the Motion to Dismiss is denied, the Court will revisit the issue of the protective order as to President Trump.”

Cooperthite faced a practical dilemma in dealing with the government’s requests to shield Trump from discovery. “On July 27, 2017, President Trump tweeted transgender persons would no longer be able to serve in the military and as for any deliberative process, simply stated this policy occurred after consulting with ‘my Generals and military experts.’  There is no evidence to support the concept that ‘my Generals and military experts’ would have the information Plaintiffs request.  There is no evidence provided to this Court that ‘my Generals and military experts’ are identified, in fact do exist, or that they would be included in document requests and interrogatories propounded to the Executive Branch, excluding the President.  By tweeting his decisions to the world, the President has, in fact narrowed the focus of Plaintiffs’ inquiries to the President himself.  The Presidential tweets put the President front and enter as the potential discriminating official.”  So there is a real question whether discovery that doesn’t include President Trump is at all meaningful, since the ultimate legal question in the litigation is the intent of the government in adopting the ban which is, at bottom, Trump’s intent.  On the other hand, discovery directed at President Trump raises serious questions about separation of powers and the traditional respect for the confidentiality of internal White House policy deliberations.

“So many factors are unknown at this juncture in the litigation,” wrote Copperthite. “It is unknown whether Plaintiffs can obtain the information necessary from the non-Presidential discovery to define the ‘intent’ of the government with respect to the transgender ban.  Defendants offer as an alternative, a stay of discovery with respect to the President, until the Motion to Dismiss the President as a party is decided.  If the President, as the discriminating official, tweeted his transgender ban sua sponte as alleged, this Court sees no alternative to obtaining the intent of the government other than denying the protective order with respect to President Trump.”  However, he wrote, precedents “instruct this Court to give deference to the executive branch because ‘occasions for constitutional confrontation between the two branches should be avoided whenever possible.’”  Thus, Copperthite decided to put off deciding the protective order issue until after Judge Garbis decides whether to dismiss Trump as a party, but for now will order the defendants only to comply with discovery requests directed to defendants other than Trump, Secretary Mattis and the Secretaries of the various military branches.

Federal Judge Blocks Implementation of Trump’s Transgender Military Ban

Posted on: October 31st, 2017 by Art Leonard No Comments

In a blunt rebuke to President Donald Trump, U.S. District Judge Colleen Kollar-Kotelly, discerning no factual basis for Trump’s July 26 tweet decreeing a ban on military service by transgender people or the August 25 Memorandum fleshing out the decreed policy, issued a preliminary injunction on October 30, the effect of which is “to revert to the status quo with regard to accession and retention that existed before the issuance of the Presidential Memorandum – that is, the retention and accession policies established in the June 30, 2016 Directive-type Memorandum as modified by Secretary of Defense James Mattis on June 30, 2017.” Doe v. Trump, 2017 U.S. Dist. LEXIS 178892, 2017 WL 4873042 (D.D.C., Oct. 30, 2017).

The practical effect of the preliminary injunction, which will stay in effect until the court issues a final ruling on the merits of the case (unless an appellate court reverses it in the meanwhile) is that the policy on transgender service announced on June 30, 2016, by former Secretary of Defense Ashton Carter during the Obama Administration, will remain in effect and the President’s tweet and subsequent Memorandum purporting to revoke these policies, which the Administration planned to put into effect in February and March, are blocked for now. By incorporating reference to Secretary Mattis’s June 30, 2017, Directive, the judge’s order requires that the Defense Department allow transgender people to enlist beginning January 1, 2018.

Trump’s August 25 Memorandum had specified that the policy it announced would go into effect by no later than March 23, 2018, regarding the requirement to discharge all transgender personnel, and that the ban on enlistments would be permanent, at least until the President was persuaded that it should be lifted.

Key to the October 30 ruling was Kollar-Kotelly’s conclusion that at this stage the plaintiffs, represented by National Center for Lesbian Rights and GLBTQ Advocates and Defenders, have adequately established that they are likely to prevail on the merits of their claim that a ban on military service by transgender people violates their equal protection rights under the 5th Amendment, and that allowing the ban to go into effect while the case is pending would cause irreparable harm to them that could not be remedied later by monetary damages.

The judge concluded that a policy that explicitly discriminates against people because of their gender identity is subject to “heightened scrutiny” under the 5th Amendment, which means that it is presumed to be unconstitutional and the burden is placed on the government to show an “exceedingly persuasive” reason to justify it. “As a class,” she wrote, “transgender individuals have suffered, and continue to suffer, severe persecution and discrimination.  Despite this discrimination, the court is aware of no argument or evidence suggesting that being transgender in any way limits one’s ability to contribute to society.”

This was staking out new ground in the absence of a clear precedent by the U.S. Court of Appeals for the District of Columbia Circuit or the Supreme Court. Alternatively, she noted, other courts of appeals in the 6th and 11th Circuits have ruled that gender identity discrimination is really sex discrimination and should be evaluated by the same “heightened scrutiny” standard that courts use to evaluate sex discrimination claims against the government.  (A petition by the Kenosha, Wisconsin, school district is pending at the Supreme Court presenting the question whether gender identity discrimination is sex discrimination, in the context of Title IX of the Education Amendments of 1972 and bathroom access in public schools.)

As for the justifications advanced by the government for Trump’s ban, the judge wrote, “There is absolutely no support for the claim that the ongoing service of transgender people would have any negative effect on the military at all.   In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects.”

The judge also concluded that the public interest is served by blocking the ban, since harm to the military from allowing transgender service was non-existent while letting the ban go into effect would actually impose significant costs and readiness issues on the military, including the loss of a large investment in training of transgender people now serving and the cost of recruiting and training people to take their places.

A major part of Judge Kollar-Kotelly’s decision was devoted to refuting the Administration’s contention that she did not have jurisdiction to decide the case. She characterized their arguments as raising a “red herring,” at least in terms of the retention and accession portions of Trump’s Memorandum.  The government argued that because the August 25 Memorandum delayed implementation of the policy until next year, nobody had standing to challenge it yet, as none of the individual plaintiffs in the case has suffered tangible harm.  The judge accepted the plaintiffs’ argument that both intangible and tangible harm was imposed as soon as Trump declared his policy, stigmatizing transgender people as unworthy to serve, tarnishing their reputations, and creating uncertainty and emotional distress as to their future employment.  Furthermore, federal courts have long held that depriving a person of equal protection of the laws imposes an injury for purposes of constitutional standing to mount a legal challenge against a policy.

The issue that seems to have provoked Trump’s July 26 tweet was military payment for sex reassignment surgery. Several Republican House members, outraged by that chamber’s rejection of their proposed amendment to the Defense appropriations bill to bar any payment by the Department for such procedures, complained to the president and reportedly threatened to withhold their support for the must-pass appropriations bill if their demand was not met.  The simple-minded president apparently jumped to the obvious conclusion: barring all transgender people from the service would solve the problem while satisfying the anti-transgender biases of his political base.  In common with his other major policy proclamations by tweeting, this seemed to be impulsive, not vetted for legality or defensibility, and oblivious to the harm it would do to thousands of people.

The way in which Trump announced his decision contributed to the judge’s conclusions. The policy was announced without any factual basis, by contrast with the 2016 policy decision, which followed several years of study, a report by the RAND Corporation (a widely-respected non-partisan military policy think-tank), wide-ranging surveys and participation of numerous military officials.  The outcome of all this study was a well-documented conclusion that there was no good reason why transgender people should not be allowed to serve, explicitly rejecting the grounds raised by Trump in support of his decision.  The judge noted the irony of Trump’s methodology: first announce a ban, then a month later task Defense Department leaders with setting in motion a process to study the issue, and mandate that the policy go into effect several months later, with the study limited to recommending how to implement the ban.

Attorneys for the government argued, in effect, that the policy is still in development and that at present it is not clear what the final, implemented policy will be, including whether it would provide discretion to military leaders to decide whether to discharge individual transgender personnel or to allow particular individuals to enlist (such as, for example, highly qualified people who had already transitioned and thus would not be seeking such procedures while serving). Their arguments lacked all credibility, however, in light of the absolute ban proclaimed by Trump on July 26, and the directive to implement that ban contained in the August 25 Memorandum.

Judge Kollar-Kotelly granted the government’s motion to dismiss the part of the complaint relying on the theory of “estoppel” as opposed to their constitutional claim. She found that none of the plaintiffs had alleged facts that would support a claim that they had individually relied on the June 2016 policy announcement and its implementation in a way that would support the rarely-invoked doctrine that the government is precluded from changing a policy upon which people have relied.

Despite its length (76 pages), Judge Kollar-Kotelly’s opinion left some ambiguity about the very issue that sparked Trump’s tweet – availability of sex reassignment surgery for transgender personnel while this case is pending. Trump cited the cost of providing such treatment as one of the reasons for his ban, but the judge noted that the actual costs were a trivial fraction of the Defense Department’s health care budget.

However, the judge granted the government’s motion to dismiss the part of the complaint that specifically challenged Trump’s August 25 Memorandum dealing with sex reassignment surgery, because she found that none of the individual plaintiffs in the case had standing to challenge it or to seek preliminary injunctive relief against it while the case is pending. Among other things, the August 25 Memorandum provided that such procedures could continue to be covered until the implementation date of the policy next year, and that transitions that were under way could progress to completion.  And the government represented to the court that those procedures would continue to be covered at least until final implementation of the policy.  The dismissal was “without prejudice,” which means that if additional plaintiffs with standing are added to the complaint, this part of the case could be revived.

On the other hand, attorneys for the plaintiffs, announcing that the ruling was a total victory for their clients, argued that the order to revert to the June 2016 policy while the case is pending necessarily included the part of that policy that allowed for coverage of sex reassignment by the Defense Department for serving personnel. This conclusion is plausible but not certain, because the conclusion of the judge’s opinion specifies that the preliminary injunction applies to “the retention and accession policies” established in June 2016 and doesn’t explicitly say anything about coverage of reassignment procedures.  Of course, if DoD balks at covering the procedures, the plaintiffs can go back to the judge for clarification.

Response to the opinion by the White House and the Justice Department was dismissive, suggesting that an appeal is likely. Judge Kollar-Kotelly’s opinion is not the last word, since similar motions for preliminary injunctions are on file in several other district courts around the country where other groups of plaintiffs have filed challenges to the ban.

Judge Kollar-Kotelly’s judicial career began when President Ronald Reagan appointed her to be a District of Columbia trial judge in 1984. President Bill Clinton appointed her to the U.S. District Court in 1997.  Although she became eligible to take senior status many years ago, she continues to serve as a full-time active member of the federal trial bench at age 74.  Her rulings in major cases exhibit an independent, non-partisan approach to deciding politically-charged cases, with no clear predispositions reflecting the presidents who appointed her.