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➤ TRANS MILITARY BAN, from p.51 original Trump policy. Both appellate courts held that the 2018 policy recommended by Mattis was no longer the total ban announced in 2017, so the district courts should evaluate the policy now in effect. The court, however, rejected the government’s argument that shifting the grounds for exclusion from “transgender status” to “gender dysphoria” eliminated the equal protection issue, finding from the wording of the task force report and Mattis’ written summary that the policy now in effect continues to target transgender people, regardless of whether they have been diagnosed with gender dysphoria, in the conditions it places on their service. This was a “win” for the plaintiffs on an important contested point. Pechman had concluded that gender identity is a “suspect classification,” so for purposes of evaluating the constitutionality of the policy under an equal protection challenge, it should be presumed unconstitutional with a heavy burden put on the government to prove a compelling need for it.

The Ninth Circuit panel decided there was not sufficient precedent to support that approach, but did agree with the position taken by the district judges in the other three cases that the policy should be subjected to “heightened scrutiny” — a less demanding level of judicial review than is warranted for a “suspect classification,” but similar to the approach courts take in sex discrimination cases. The key caveat the panel made here was consideration of the degree to which the policy merits the deference traditionally accorded military decision-making. Pechman had concluded that Trump’s original policy did not merit judicial deference since there was no evidence it was the product of professional military judgment. Like the other district judges, she viewed the original policy as the product of a surprise tweet, for which the government failed to provide any information about its formulation. The government has now described, at least in a general way, the Ninth Circuit panel found, how Mattis’ task force was put together,

and its policy product — a 44-page report — was allegedly the result of serious study, many meetings, and interviews with military personnel. If one accepts the government’s description of that process, the court said, an argument can be made that the Mattis policy should be accorded judicial deference. Whether to do so, however, and how to align that analysis with the heightened scrutiny standard were questions to be addressed by the district court, the panel found. Pechman must now determine whether the 2018 policy is sufficiently a product of military judgment to justify applying a deferential standard of review. Some degree of cooperation by the government in the discovery process will be necessary for her to carry out such an analysis. The Ninth Circuit panel, however, cautioned Pechman to give appropriate weight to decisional and executive privilege in formulating any discovery order. The bottom line is that the Karnoski case goes back to Pechman for a fresh analysis of whether the plaintiffs are entitled to a preliminary injunction against the Mattis

policy, using heightened scrutiny but also taking account of the administration’s privilege claims. This opinion also sends a message to the district court in Riverside, which is also under the Ninth Circuit’s jurisdiction. Discovery battles, meanwhile, continue in the Baltimore and Washington cases. Given the Trump administration’s stiffening resistance to any demands for disclosure of internal Executive Branch decision-making, it is difficult to predict when there will be sufficient discovery to provide a basis for further rulings in the four pending court challenges. The litigation will not be finally resolved before Inauguration Day in January 2021 unless the Trump administration shows some cooperation in this discovery matter. Should a Democrat win next year, an executive order restoring the 2016 policy could put an end to the entire transgender military service drama and restore sanity to an issue clouded by politics and substantial misinformation, such as Trump’s recent grossly-exaggerated statements about the cost of health care for transgender personnel.

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