//  6/14/19  //  Quick Reactions

Almost a full year ago, joined by my colleagues at Kaplan Hecker & Fink, I filed an amicus brief on behalf of transgender rights groups in Karnoski v. TrumpThe Karnoski case is one of several challenges to President Trump's animus-laden ban on military service by transgender persons. The district court in Karnoski granted a preliminary injunction against Trump's policy. It then declined to lift that injunction after the administration issued a "revised" version of this order in March 2018. The government appealed that ruling to the Ninth Circuit Court of Appeals, where a slew of amici urged the court to affirm the preliminary injunction—and further argued that the court should deem classifications based on transgender status to be presumptively suspect.

Today, the Ninth Circuit finally issued its opinion. Issued per curiam, rather than by any single judge, it mixes a bit of bad news with two major victories for transgender rights. 

Starting with bad news, the Ninth Circuit vacates the preliminary injunction and remands for the district court to conduct a new analysis. Whereas the district court had treated the revised policy as merely an extension of the original ban on military service by transgender persons, the Ninth Circuit found that there are two important differences between the policies. To start, the revised policy was generated by a very different process, one involving "a study by a panel of military experts that met 13 times over a period of 90 days, a 44-page report issued by the Department of Defense, and a substantive memorandum issued by Secretary Mattis." Moreover, "the 2018 policy includes a reliance exception for service members diagnosed with gender dysphoria after January 1, 2018 that the 2017 policy lacked." Given these differences, the Ninth Circuit held that a new analysis was required. 

But in its guidance for such analysis, the Ninth Circuit reached two extraordinarily important conclusions.

First, the Ninth Circuit recognized that the 2017 and 2018 policies are identical in many, many respects:

Plaintiffs assert that the 2018 Policy, like the 2017 Memorandum, broadly prohibits military service by transgender persons. Beyond the narrow reliance exception, transgender individuals who wish to serve openly in their gender identity are altogether barred from service. Even individuals who are willing to serve in the gender assigned to them at birth are barred from accession if they have a history or diagnosis of gender dysphoria, unless they can “demonstrate 36 consecutive months of stability – i.e., absence of gender dysphoria – immediately preceding their application.” For service members who do not qualify under the reliance exception, transition-related medical care is also prohibited. Those who have undergone transition are disqualified from service, and those who have not transitioned are disqualified unless they suppress their gender identity and serve in their birth-assigned sex. Plaintiffs conclude that the new policy continues to broadly exclude transgender persons from service in the military.

Critically, the Ninth Circuit declined to accept the government's flimsy (and offensive) argument that Trump's policy does not classify on the basis of transgender status or effectively ban military service by transgender persons.

Defendants alternatively argue that rational basis review applies because the classifications challenged here are based on “gender dysphoria” and “gender transition” rather than transgender status. This too is unpersuasive. On its face, the 2018 Policy regulates on the basis of transgender status. It states that “Transgender persons with a history or diagnosis of gender dysphoria are disqualified from military service, except under [certain] limited circumstances,” that “Transgender persons who require or have undergone gender transition are disqualified from military service,” and that “Transgender persons without a history or diagnosis of gender dysphoria . . . may serve . . . in their biological sex.” We conclude that the 2018 Policy on its face treats transgender persons differently than other persons ...

Here, the Ninth Circuit also recognized and left open a compelling independent basis for concluding that Trump's policy discriminates based on transgender status:

Because the 2018 Policy discriminates on the basis of transgender status on its face, we need not address whether it constitutes discrimination against transgender persons on the alternative ground that gender dysphoria and transition are closely correlated with being transgender. See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 689 (2010) (citing Lawrence, 539 U.S. at 583 (O’Connor, J., concurring) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.” (alteration in original))); cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993).

These conclusions are significant because DOJ articulated a view that would have excluded many obvious instances of governmental discrimination against trans people. In rejecting that view, the Ninth Circuit adopted a realistic and reasonable conception of what it means to discriminate based on gender identity and transgender status. That precedent is invaluable.

Second, and even more important, the Ninth Circuit held that transgender classifications are subject to heightened judicial scrutiny.

In so doing, the Ninth Circuit displayed sympathy for the district court's conclusion that "a strict scrutiny standard of review applied," noting that "the district court reasonably applied the factors ordinarily used to determine whether a classification affects a suspect or quasi-suspect class." However, in light of Supreme Court and Ninth Circuit precedent, the panel concluded that "the district court should apply a standard of review that is more than rational basis but less than strict scrutiny." This standard of review is known as "heightened" or "intermediate" scrutiny. Like strict scrutiny, and unlike rational basis review, it reflects a profound judicial recognition that discrimination based on transgender status is presumptively improper. 

Of course, standards of review have a way of going wobbly in the military context. It was therefore equally significant that the Ninth Circuit rejected the government's effort to dilute judicial review into nothingness:  

Defendants assert that, because this case involves judicial review of militarydecisionmaking, mere rational basis review applies. This contention, however, is foreclosed by our decision in Witt. See Witt, 527 F.3d at 821; see also Rostker v. Goldberg, 453 U.S. 57, 71 (1981) (explaining that the Court’s decision in Schlesinger v. Ballard, 419 U.S. 498 (1975), “did not purport to apply a different equal protection test because of the military context, but did stress the deference due congressional choices among alternatives in exercising the congressional authority to raise and support armies and make rules for their governance”). Under Witt, deference informs the application of intermediate scrutiny, but it does not displace intermediate scrutiny and replace it with rational basis review

Karnoski is thus a landmark development in the protection of transgender rights under the Constitution. On remand, the district court has been instructed to carefully probe the revised order restricting military service by transgender persons. A fair application of that standard should lead to a restoration of the preliminary injunction. But however this case turns out, the Ninth Circuit's decision has far broader implications—and the potential to thwart anti-trans injustice in many other domains of American life. 

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