Last week, joined by several colleagues from Kaplan Hecker & Fink, I filed an amicus brief on behalf of transgender rights groups in Karnoski v. Trump. The Karnoski case is one of several pending challenges to President Trump's animus-laden ban on military service by transgender persons. In Karnoski, the district court granted a preliminary injunction against Trump's policy—and then declined to lift that injunction after Trump issued a "revised" version of his order in March. The government has appealed that ruling to the Ninth Circuit Court of Appeals, where briefing is now underway.
Our amicus brief in Karnoski makes a single point: when government officials seek to classify and disadvantage people based solely on their transgender status, courts should require those officials to offer an extraordinary reason for doing so. Every factor relevant to equal protection analysis supports the conclusion that transgender classifications are suspect. Moreover, recent events confirm that transgender people face a grave, continuing risk of official discrimination based on prejudice and stereotypes.
As we emphasize in our concluding paragraph: "Official acts that target the transgender community—or draw lines based on its crucial characteristics—are presumptively 'incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law.' Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982). That conclusion is only strengthened by related precedents holding that officials and lawmakers lack any valid interest in enforcing gender-based expectations of proper conduct. See Virginia, 518 U.S. at 533. Simply stated, laws that classify based on transgender status deserve a much harder look from the Judiciary than laws regulating packaged milk. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). The time has come for this Court to hold as much—thereby offering clarity to government officials and affirming the dignity of all transgender persons."
To see our full analysis, read the amicus brief.
Here is the Introduction & Summary of Argument:
“A prime part of the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.” United States v. Virginia, 518 U.S. 515, 557 (1996). Although many Americans once considered it natural to discriminate based on race, sex, religion, and other grounds, we have since come to recognize the injustice of treating groups differently based on characteristics that have no relationship to their capabilities. Of course, this evolution is itself part of the Framers’ design: they knew that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Lawrence v. Texas, 539 U.S. 558, 579 (2003).
Courts play an important role in that process. It is their solemn duty to “say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). And that duty reaches its zenith in cases involving “the right of the individual not to be injured by the unlawful exercise of governmental power.” Schuette v. BAMN, 134 S. Ct. 1623, 1636 (2014) (plurality). Accordingly, when new insight reveals that official acts targeting a particular group are inconsistent with the Constitution’s guarantee of equal protection, courts must carefully guard against discrimination. This is often achieved by requiring the government to provide compelling, well-tailored reasons whenever it seeks to assign benefits or burdens based on a suspect trait. See Burlington N. R. Co. v. Ford, 504 U.S. 648, 651 (1992) (religion); Clark v. Jeter, 486 US 456 (1988) (legitimacy); Craig v. Boren, 429 U.S. 190 (1976) (sex); Graham v. Richardson, 403 U.S. 365, 372 (1971) (alienage); Loving v. Virginia, 388 U.S. 1, 11 (1967) (race); see also SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir. 2014) (concluding that classifications based on sexual orientation are subject to heightened scrutiny following United States v. Windsor, 570 U.S. 744, 772 (2013)).
Under settled Supreme Court precedent, that requirement should also apply to classifications based on transgender status. In recent years, an increasing number of Americans have come to recognize the dignity and equality of their transgender neighbors. This evolution has resulted not only from large-scale national studies that refute antiquated notions about sex and gender identity, but also from greater societal awareness of transgender individuals and their life experiences. Against that background, many courts have held that discrimination against transgender people is presumptively suspect. Those courts have recognized that each factor relevant to heightened scrutiny analysis warrants its application here: (1) this group has suffered a long history of discrimination; (2) its defining characteristic is irrelevant to social productivity; (3) transgender status is a distinct and immutable characteristic; and (4) transgender people cannot fully protect themselves through the political process alone. See Grimm v. Gloucester Cty. Sch. Bd., 302 F. Supp. 3d 730, 749 (E.D. Va. 2018); F.V. v. Barron, 286 F. Supp. 3d 1131, 1145 (D. Idaho 2018); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 288 (W.D. Pa. 2017); Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep’t of Educ., 208 F. Supp. 3d 850, 874 (S.D. Ohio 2016); Adkins v. City of New York, 143 F. Supp. 3d 134, 139 (S.D.N.Y. 2015); Norsworthy v. Beard, 87 F.Supp.3d 1104, 1119 (N.D. Cal. 2015).
These decisions stand for a simple but profound proposition: transgender status should almost never be relevant to lawmaking. As a result, if the government wants to draw lines on this basis, it had better produce a compelling reason for doing so. By requiring the government to affirmatively explain and justify its transgender-based classifications, the application of strict scrutiny serves to smoke out (and deter) reliance on biased assumptions regarding transgender status. The application of strict scrutiny also provides clear notice to officials at all levels of government that they should proceed with extreme caution before classifying on this basis.
That message couldn’t arrive at a more crucial time. In recent years, even as more and more Americans have accepted them as equals, transgender people have been subjected to a barrage of hate and discrimination. Numerous states are considering bills that would ban transgender people from using bathrooms consistent with their gender identity. Some of these states have enacted even more expansive legislation targeting transgender people for disadvantage. See Public Facilities Privacy & Security Act, N.C. House Bill 2, 2d Extra Sess. (2016) (Sess. Law 2016-3); 2016 Miss. Laws Ch. 334 (H. B. 1523), § 2(c) (2016). And the federal government has embraced a series of policies that serve mainly to injure transgender people and deny their existence. To identify just a few examples:
As two civil rights scholars have noted, these developments at the federal level are unified by a common theme: “Information suppression is an effort to keep LGBTQ people closeted, out of sight from a society that might over time come to see their humanity and accept their personhood and rights.” Leah Litman & Helen K. Murillo, Information Wars Part I: The Challenge to the Census, Take Care (April 13, 2017).
In this fraught moment, it would be a grave error for courts to demand nothing but threadbare rationality from laws that discriminate against transgender people. Indeed, were this Court to hold that it is presumptively legitimate for officials to treat people worse based on their transgender status, horrific consequences would ensue. That ruling would itself invite further discrimination against transgender people—and would come to be seen as “a brand upon them . . . an assertion of their inferiority.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 142 (1994).
In contrast, following Supreme Court precedent and applying strict scrutiny to discriminatory acts like the Ban would affirm the dignity of transgender individuals. That holding would also strike a sensitive balance between lawmakers’ legitimate goals and the Constitution’s guarantee of equal protection. Official acts classifying based on transgender status would still be permitted, but the government would be required to demonstrate why that approach is really, truly necessary. Given the nation’s sordid history of anti-transgender discrimination, and given the absence of any presumptively valid reason to draw lines based on transgender status, it is eminently reasonable to demand such justification. By virtue of its commitment to equal protection for all Americans, our Constitution demands nothing less.
Again, the full brief can be found here.