Trump had claimed that the old ban was revoked and replaced with the new one, but U.S. District Judge Marsha Pechman rejected this distinction, noting that the new documents “do not substantively rescind or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.”
Indeed, she found the claim that the new ban has exceptions wholly unconvincing:
The Court is not persuaded. 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.
As she did when she first ruled against the ban last year, Pechman also concluded that transgender people are a “suspect class” — a group vulnerable to unfair treatment and discrimination solely because of their identity. Thus, any rationale for categorically excluding them from service must be examined and considered with heightened scrutiny.
Perchman stopped short of analyzing the Trump administration’s new justifications for the ban, in part because of the last-minute timing in which they were presented to the court. There has thus not yet been opportunity to assess whether those justifications merit the court’s deference.
But Pechman was skeptical, which is why she also allowed Trump himself to remain party to the case. “Defendants to date have failed to identify even one general or military expert he consulted, despite having been ordered to do so repeatedly,” she wrote. “Indeed, the only evidence concerning the lead-up to his Twitter announcement reveals that military officials were entirely unaware of the ban, and that the abrupt change in policy was ‘unexpected.’ Even [Defense Secretary James Mattis] was given only one day’s notice before President Trump’s Twitter announcement.”
“As no other persons have ever been identified by defendants — despite repeated court orders to do so — the court is led to conclude that the ban was devised by the president, and the president alone.”
The government’s unwillingness to clarify who consulted on the original ban squares with reporting from both ThinkProgress and Slate that the new ban was not based on military recommendations at all. Instead, Vice President Pence impaneled his own working group, featuring prominent anti-LGBTQ advocates, and overruled recommendations to allow for transgender people to join the military.
Lambda Legal Senior Attorney Natalie Nardecchia praised Friday’s ruling. “The court wants to expose this bigoted ban for all of its ugliness at trial, and we are happy to oblige. If it’s a full record the judge wants, then it’s a full record we will give her,” she said.
“We look forward to putting the capriciousness and cruelty of this discriminatory ban against transgender people on trial, where it can be relegated for good to the trash heap of history, alongside other vile military policies that discriminated based on race, sex, and sexual orientation.” Lambda Legal and OutServe-SLDN are representing the plaintiffs in the Washington case.
According to Pechman’s preliminary injunction, the new ban is just as unenforceable as the old one as the case moves forward.