SEATTLE — Attorney General Bob Ferguson, together with Lambda Legal and OutServe-SDLN, won a major court victory against the Trump Administration’s discriminatory ban against transgender individuals openly serving in the U.S. military. The federal judge’s ruling keeps in place the injunction blocking President Trump’s transgender military service ban.
Judge Marsha Pechman of the U.S. District Court for the Western District of Washington ruled that, contrary to the federal government’s assertions, the Trump Administration’s Feb. 22 implementation plan for the ban, based on a recent study and report by the Department of Defense, does not constitute a new policy regarding military service by transgender individuals. Judge Pechman rejected the Trump Administration’s argument that the lawsuit is moot because the President has purportedly rescinded the original ban, first announced by the President on Twitter on July 26, 2017.
Judge Pechman wrote, “The Court finds that the 2018 Memorandum and the Implementation Plan do not substantively rescind or revoke the Ban, but instead threaten the very same violations that caused it and other courts to enjoin the Ban in the first place.”
Judge Pechman also rejected the federal government’s effort to have the President dismissed as a defendant, and determined the government’s evidence in favor of the ban must pass the court’s highest level of scrutiny, known as “strict scrutiny.”
“The Ban specifically targets one of the most vulnerable groups in our society, and must satisfy strict scrutiny if it is to survive,” Judge Pechman wrote.
“The court’s ruling means President Trump’s hastily conceived and discriminatory ban now has to stand up to the court’s most rigorous standard of review,” Ferguson said. “I am confident the ban will not withstand that, and the court will strike down this unconstitutional policy. I look forward to continuing our fight for the rights of transgender Washingtonians.”
The court’s summary judgment ruling is available here.
The federal government had argued that its implementation plan announced last month is not a categorical ban because it allows transgender individuals to serve in their “biological sex,” and is therefore not discriminatory.
“The Court is not persuaded,” Judge Pechman wrote. “The Implementation Plan prohibits transgender people—including those who have neither transitioned nor been diagnosed with gender dysphoria—from serving, unless they are ‘willing and able to adhere to all standards associated with their biological sex.’ Requiring transgender people to serve in their ‘biological sex’ does not constitute ‘open’ service in any meaningful way, and cannot reasonably be considered an ‘exception’ to the Ban. Rather, it would force transgender service members to suppress the very characteristic that defines them as transgender in the first place.”
Judge Pechman found that “in addition to diminishing the number of eligible members for the National Guard, the Ban threatens Washington’s ability to (1) protect its residents and natural resources in times of emergency and (2) ‘assur[e] its residents that it will act’ to protect them from ‘the political, social, and moral damage of discrimination.’”
“We know our case and our cause is just,” Gov. Jay Inslee. “Every qualified, able-bodied individual who wants to serve in our military should be allowed that opportunity. Washington is putting forth a strong case thanks to the good work of Bob Ferguson’s team.”
Because there are still questions of fact to be resolved, the court ruled the case will continue to trial before Judge Pechman.
The court noted that there was not yet enough evidence before it to determine the extent to which the court should defer, if at all, to President Trump and the Department of Defense’s ban as a military personnel issue. The court wrote:
“The Court notes that, even in the event it were to conclude that deference is owed, it would not be rendered powerless to address Plaintiffs’ and Washington’s constitutional claims, as Defendants seem to suggest. … Indeed, the Court notes that Defendants’ claimed justifications for the Ban—to promote ‘military lethality and readiness’ and avoid ‘disrupt[ing] unit cohesion, or tax[ing] military resources’— are strikingly similar to justifications offered in the past to support the military’s exclusion and segregation of African American service members, its ‘Don’t Ask, Don’t Tell’ policy, and its policy preventing women from serving in combat roles.”
Ferguson, Lambda Legal and OutServe-SDLN previously won a preliminary injunction on the transgender military ban in December, and the Trump Administration dropped its appeal of that ruling. As a result of preliminary injunctions in Ferguson’s case and three others, transgender individuals have been able to enlist since Jan. 1.
Ferguson has not lost a case brought against the Trump Administration. The Attorney General’s Office prevailed in all five cases against the Trump Administration that are completed and there are no more appeals. That does not include four additional successful outcomes that have been or could be appealed, including this case.
In July 2017, President Donald Trump announced a ban against transgender individuals over Twitter. One month later, he issued a Presidential Memorandum to the same effect.
Ferguson joined Lambda Legal and OutServe-SDLN in a case defending a group of transgender Washington residents who are currently serving in the military or who wish to join. Washington is home to nearly 33,000 transgender adults, some of whom are among Washington’s 60,000 active-duty military, reserve and National Guard members.
In December 2017, Judge Marsha Pechman of the U.S. District Court for the Western District of Washington became the third federal judge to block the ban, finding that the ban would irreparably harm the transgender individuals in the case.
In total, four federal district court judges have granted injunctions against the ban.
The Trump Administration initially requested that the courts delay the injunctions, citing that its military branches were not prepared to accept transgender individuals. The Administration also filed multiple appeals of the injunctions.
The U.S. Department of Justice has since dropped its requests and appeals, or had its requests denied by the courts.
As a result of the federal court rulings, all branches of the U.S. military began accepting transgender recruits as of Jan. 1.
In addition to the case, Ferguson and 18 attorneys general sent a letter calling on members of the U.S. Armed Services Committee to stand with transgender military service members in July 2017.
Upholding transgender rights
Ferguson has been an advocate for transgender rights. He filed a “friend of the court” brief supporting transgender student Gavin Grimm, urged a federal court to reject efforts to block the government’s ability to protect the civil rights of transgender people, and led a multistate coalition urging the U.S. Department of Veterans Affairs to provide transgender veterans access to health care.
Wing Luke Civil Rights Unit Chief Colleen Melody and Assistant Attorney General La Rond Baker are handling the case for the state.
Ferguson created the Wing Luke Civil Rights Unit in 2015 to protect the rights of all Washington residents by enforcing state and federal anti-discrimination laws. Ferguson named the unit for Wing Luke, who served as an Assistant Attorney General for the state of Washington in the late 1950s and early 1960s. He went on to become the first person of color elected to the Seattle City Council and the first Asian-American elected to public office in the Pacific Northwest.
The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.
Brionna Aho, Communications Director, (360) 753-2727; email@example.com