Federal judge blocks in Maryland blocks Trump’s trans troops ban.

Federal Judge Blocks Trump’s Trans Troops Ban, Rules It “Shocks the Conscience”

Federal Judge Blocks Trump’s Trans Troops Ban, Rules It “Shocks the Conscience”

Outward
Expanding the LGBTQ Conversation
Nov. 21 2017 5:30 PM

Federal Judge Blocks Trump’s Trans Troops Ban, Rules It “Shocks the Conscience”

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Another federal judge has concluded that President Donald Trump’s ban on transgender military service is unconstitutional. U.S. District Judge Marvin J. Garbis, a George H.W. Bush appointee, blocked the entirety of Trump’s order on Tuesday in a trenchant opinion that pilloried the president for his “capricious” attempt to “degrade” American service members on account of their gender identity. LGBTQ advocates could not have hoped for a better decision.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Trump tweeted the ban into existence in July without warning the Pentagon, which had allowed open transgender service since June 2016. His lawyers later converted the tweets into a memorandum that would purge trans troops who had previously been invited to serve openly. The administration claimed trans service members disrupted “unit cohesion” and required pricey medical treatment. (A RAND study commission by the Department of Defense had previously found that open transgender service would have no negative impact on the military.)

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Several civil rights groups have sued on behalf of trans troops. The case at issue in Garbis’ ruling was brought by the ACLU of Maryland in the U.S. District Court for the District of Maryland. In his opinion, Garbis recognized judicial deference is typically “owed to military personnel decisions.” But he declined to apply that deference here in light of the fact that the president tweeted the ban with no “policy review” or “evidence demonstrating” that it “was necessary for any legitimate national interest.” Instead, Garbis agreed with Judge Colleen Kollar-Kotelly, who blocked the ban in October, that “the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.” (Why did Garbis rule on a matter that another district court judge had already weighed in on? Because each district court has a duty to adjudicate claims a plaintiff brings before it, even if a separate district court has already weighed in on the same law in a separate suit.)

Garbis also adopted Kollar-Kotelly’s reasoning with regard to the plaintiff’s equal protection claim, ruling that heightened scrutiny applies to government discrimination against transgender people. To satisfy heightened scrutiny, the government must put forth an “exceedingly persuasive justification” for its discrimination, which it has not done here. In fact, Garbis noted, the government could not even “survive a rational review,” the most deferential form of judicial scrutiny.

“The lack of any justification for the abrupt policy change,” he wrote, “combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest.”

Garbis also evaluated the ban under due process principles, noting that an “executive action” may unlawfully deprive individuals of their constitutional liberty when it is “so egregious” and “so outrageous” as to “shock the conscience.” While that’s a very high standard, Garbis asserted that Trump’s ban surpassed it.

An unexpected announcement by the President and Commander in Chief of the United States via Twitter that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military” certainly can be considered shocking under the circumstances. … A capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes.

Like Kollar-Kotelly, Garbis froze the ban as a probable infringement upon the constitutional rights of transgender service members.

While Garbis’ ruling largely tracks Kollar-Kotelly’s, this latest decision reinforces and complements her decision in two key ways. First, Garbis affirms and expands upon Kollar-Kotelly’s refusal to ignore the obvious (and illicit) motivations behind the ban in the name of judicial deference. Trump’s Justice Department has argued that courts have no business scrutinizing the ban because the president has inherent constitutional authority to exclude whomever he wants from the military. Both Garbis and Kollar-Kotelly rejected that position, holding that deference would be inappropriate given the arbitrary and suspect nature of Trump’s policy. (Both judges took pains to document the many studies—by RAND, by the Department of Defense, and by each branch of the armed forces—finding that transgender service has no detrimental ramifications.)

Second, while Kollar-Kotelly focused only on equality, Garbis grounded his decision in both equal protection and due process. This analysis permits Garbis to explore a separate facet of the constitutional injury here: the government’s betrayal of transgender troops whom it had already invited to serve openly. Garbis holds that this “egregiously offensive” duplicity constitutes a due process violation on its own terms. This logic might appeal to other judges—including Supreme Court justices—who are hesitant to join an expansive equal protection decision protecting transgender rights. It’s a narrower path to the same conclusion: Trump’s trans troops ban cannot withstand the slightest amount of constitutional scrutiny.