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The Trump administration’s latest effort to bar transgender people from serving in the military remains on hold for now, a federal judge ruled Friday night in a decision finding strong constitutional protections against anti-transgender discrimination.
“The ban specifically targets one of the most vulnerable groups in our society, and must satisfy strict scrutiny if it is to survive,” US District Judge Marsha Pechman ruled in assessing the “history of discrimination and systemic oppression of transgender people” in the US.
In order for the ban to be found to be constitutional under strict scrutiny — one of the toughest constitutional standards to meet — the government would have to show that the ban is advancing a compelling government interest and that “the means chosen ‘fit'” that interest “so closely that there is little or no possibility that the motive for the classification was illegitimate … prejudice or stereotype.”
“[Q]uestions of fact remain,” Pechman ruled, regarding whether the ban is unconstitutional under that strict scrutiny standard and what, if any, “deference” should be given to the government because the ban is a matter of military personnel policy. Those questions would need to be determined at trial.
While the case goes forward, however, Pechman also ruled that she is keeping in place a prior injunction that prevents the federal government from stopping transgender people from serving or joining the military as the trial proceeds.
When Trump first attempted to stop transgender military service, Pechman had issued an injunction against that August 2017 order. The August order had itself followed Trump’s July 2017 tweets announcing the policy change.
After several courts, including Pechman’s in Seattle, halted enforcement of the initial order, Trump issued a new order in March — rescinding the first order but supporting an implementation plan that would still bar most transgender people from serving.
The government argued its latest effort does not have the problems of the first ban because transgender people can serve if they serve in their “biological sex.”
“[T]he Court concludes otherwise, and rules that the preliminary injunction will remain in effect,” Pechman wrote, later going on to detail, “The Court finds that the 2018 Memorandum and the Implementation Plan do not substantively rescind or revoke the Ban, but instead threaten the very same violations that caused it and other courts to enjoin the Ban in the first place.”
The individuals challenging the ban, along with the state of Washington, argue that the ban violates equal protection and due process guarantees, as well as the First Amendment.
In announcing that transgender people “constitute a suspect class,” Pechman looked at the four traditional factors — history of discrimination, the group’s ability to contribute to society, immutability, and political power — and concluded that all led her to the conclusion that strict scrutiny should apply.
“Transgender people have long been forced to live in silence, or to come out and face the threat of overwhelming discrimination,” she wrote.