The United States district court in Maryland has issued an opinion in one of the four challenges to Trump’s transgender military ban. We can expect to see additional rulings like this from time to time as cases move toward trial. The ban was officially reinstated on April 12, 2019 after the Supreme Court decided it could go into effect before courts determined whether it was constitutional.
The Maryland opinion in Stone v. Trump is in many ways like the Ninth Circuit ruling this June, which the Palm Center summarized as “Something Less Than a ‘Win’ for Transgender Troops.” The same heading could be used for the Maryland opinion, as it is a mixed bag of some “good,” some “superficially good but with hazards ahead,” and some simply “bad.”
Given that the Trump administration had asked the court to completely dismiss the plaintiffs’ lawsuit and deny their petition to serve in the military on equal terms, the ruling was a victory in that it allowed the case to continue. But that’s a very low standard for good news. The way in which the court’s ruling will shape the progress of the lawsuit is a different story and, once again, something less than a win.
- The court found that a heightened level of judicial scrutiny applies to discrimination on the basis of gender identity because it is a form of sex discrimination. But . . . (see below).
- As a general matter, the court agreed that the plaintiffs need discovery about the process that led to the ban in order to support claims that the ban is not backed by evidence, is not a product of military judgment, and is not entitled to deference. But . . . (see below).
The Superficially Good But With Hazards Ahead
- The court allowed all of the plaintiffs who are applicants for enlistment to continue with their challenge, which avoided dismissal of the lawsuit. But it eliminated from the lawsuit all but one of the currently serving plaintiffs. This is a good result for the government and its defense of the ban because it is easier to justify discrimination against an applicant (who might be unsuitable for reasons other than being transgender) than discrimination against a serving member.
- According to the court, the currently serving plaintiffs generally could not show any harm from the ban, given the grandfather clause that allows them to remain in service. It waved aside arguments that the ban stigmatizes them as exceptions to a policy that deems transgender members a danger to readiness. It waved aside concerns that transgender members are subject to more stringent deployment rules than non-transgender members for the same medical care, and that those double standards will be used against them to justify discharge. The court suggested that serving members are unlikely to ever be suitable plaintiffs. So if grandfathered personnel can’t challenge the ban, and non-grandfathered personnel can’t challenge the ban because they would have to identify themselves and risk discharge, then no one currently serving can challenge. And that is exactly the way that the Trump administration would like it to be.
- Although a heightened level of judicial scrutiny applies, it will be accompanied by “the appropriate level of deference to the military’s evaluation of the evidence.” The court reserved judgment on how much deference is an appropriate level of deference, but it has already concluded that the Implementation Plan endorsed by former defense secretary James Mattis “was at least a product of military judgment,” even if not “truly independent.” Heightened scrutiny has a tendency to wither when weighed down by deference to supposed “military judgment.” Whether any “military judgment” is at issue with respect to transgender policy is open to question.
- Although the court saw the relevance of discovery about the process leading to the ban—and so declined to end the lawsuit without it—the specifics of what the government would have to disclose haven’t been decided. The government contends that it can withhold that information based on assertion of executive privilege. The Maryland court suggested it would be influenced by the way the Ninth Circuit resolved the issue, and the Ninth Circuit firmly put a thumb down on the government’s side of the scale, writing this: “The military’s interest in full and frank communication about policymaking raises serious—although not insurmountable—national defense interests. These are among the concerns that the district court and the parties should consider in balancing the deliberative process privilege with Plaintiffs’ need for certain information.”
- The Maryland court, like the Ninth Circuit, accepted the government’s argument that the ban that took effect in April 2019 is different from—and more forgiving than—the ban that Trump had in mind in 2017. In other words, the court found that the policy was no longer a ban, although it conceded that it will bar “a significant number of transgender individuals from serving in the military.”
- The ban isn’t really a ban, the court decided, because it includes a “grandfather clause” that allows troops who came out in reliance on inclusive policy to stay in service despite the ban, even though colleagues in exactly the same circumstances who came out later would be subject to the ban. But a temporary exception to a ban doesn’t make the policy any less a ban. It’s like saying that a hypothetical law prohibiting women from shopping in Home Depot is less discriminatory against women if the law includes a grace period allowing women already in the store when the ban went into effect to finish shopping first.
- The court also concluded the ban isn’t really a ban because transgender applicants can enlist provided they can prove that for 36 consecutive months prior to enlistment they have lived in birth sex without distress and have never received any gender-transition treatment to relieve gender dysphoria. That’s another way of saying, “You can be transgender and enlist as long as you’re not really transgender.” It shows that the court has a fundamental misunderstanding about the effect of the new Trump policy.
- The court’s inability to comprehend the reality of the ban led it ultimately to conclude that no part—that’s right, no part—of Trump’s initial directive for a ban remains in place, which is completely wrong. All of it remains, only couched in military personnel language rather than the uninformed generalities Trump used in a White House memorandum. The new policy disqualifies as broadly as it is practically possible to do, and it relies on threatening the rest into silence. The Palm Center’s The Making of a Ban describes how it works.
- It appears from the court’s opinion that it did not consider the actual policy that went into effect on April 12, because it stumbles through an issue about eligibility of grandfathered enlisted personnel for future commissions as officers even though the regulation specifically answers that question. Only by reading that regulation can you understand how it works as a ban.
The bottom line from the Maryland court is that every bit of something helpful for the plaintiffs comes with a potential mine field. You can only have certain kinds of plaintiffs (the ones that aren’t as compelling). Heightened scrutiny applies, but we might defer to what the government wants. Discovery of government process is important, but you might not get it. The ban isn’t really a ban, but we’re not familiar with the regulation behind it. Otherwise, your lawsuit is good to go.