Donald Trump’s attempt to ban transgender Americans from serving openly in the military found possible supporters at the 9th U.S.
Circuit Court of Appeals on Wednesday. During oral arguments over the policy, a conservative-leaning panel of judges indicated that they might reverse an injunction currently safeguarding the rights of transgender troops. It marked the first time that any court has seriously suggested that the ban passes constitutional muster.
Trump famously tweeted the ban in July 2017 without consulting military officials in an effort to appease evangelical conservatives. In August 2017, he directed Secretary of Defense James Mattis—who opposed the ban—to devise an implementation plan. Following the president’s orders, Mattis convened a panel to conduct a study that would provide legal justifications for the policy. By that point, however, four separate federal district courts had blocked the ban, and one federal appeals court had refused to let it go forward. Behind the scenes, Vice President Mike Pence played a major role in creating the report, aided by anti-trans activists Ryan Anderson and Tony Perkins. Relying on this report, the Trump administration once again attempted to impose the ban in March, only be frozen by the courts once again.
At this point, Trump’s Department of Justice is clearly eager to get this case to the Supreme Court, where, it believes, it can secure five votes to uphold the policy. So it requested, and received, an expedited hearing in the 9th Circuit, asking the appeals court to lift an injunction issued by a federal district court in Washington State.
No court has yet found that Trump’s ban is anywhere close to constitutional. All four district courts held that it violates basic equal-protection principles by singling out sexual minorities for disfavored treatment. But Lambda Legal and OutServe-SLDN, which represent the transgender plaintiffs, drew a tough panel on Wednesday: Judges Raymond Fisher, Richard Clifton, and Connie Callahan. Fisher is a liberal lion, but Clifton is a moderate conservative, and Callahan sits on the court’s right flank. From the start, Callahan proved extremely skeptical of the district court’s conclusion that the 2018 policy is materially different from the earlier iterations. That’s a problem for the plaintiffs. The earliest version of the ban, Trump’s initial tweet, was plainly a direct assault on transgender Americans. The 2018 version, by contrast, attempted to disguise this animus in pretext, ostensibly discriminating on the basis of gender dysphoria rather than sex and transgender status.
“I’m not completely convinced by your argument that the 2018 [policy] is the same as the 2017 [policy],” Callahan told Steve Ellis, who represented the plaintiffs. “I can see differences. … They don’t look exactly the same to me.” She dismissed the district court’s decision—which found the new policy to be an extension of the old one—as “quite conclusory.”
Clifton seemed to agree. “Let’s look what happened in the travel ban case,” he said. (Clifton sat on the panel that blocked Trump’s first travel ban.) He noted that the Supreme Court put “great weight” to the fact that Trump rescinded that ban, issued another one, rescinded it, then issued a third, final policy. When the court upheld the third ban in Trump v. Hawaii, Clifton said, it “paid deciding attention to the fact that there was a different justification offered in support of the policy. The past history was in the past. Now we have a potentially analogous situation.”
Ellis tried to explain that the latest iteration of the transgender troops ban is extremely similar to the first one, calling it “lipstick on a pig.” There are “ample, undisputed facts in the record,” he insisted, “which establish that this is simply the implementation of the ban that President Trump ordered.” But neither Callahan nor Clifton seemed convinced. Callahan suggested that the district court didn’t really “wrestle with” the 2018 report or pay it sufficient deference. Clifton wondered why the court shouldn’t pay attention to the “justification offered for the revised policy” and ignore Trump’s earlier, utterly implausible rationales.
Brinton Lucas, defending the ban for the Justice Department, seized upon Clifton’s analogy to the travel ban. “This case is on all fours with Trump v. Hawaii,” he told the court. There, plaintiffs said the travel ban was a “religious gerrymandering” targeting Muslims; here, they say the trans troops ban is “just a gerrymander to capture transgender status.” But the court, Lucas claimed, should take the Trump administration at face value, and conclude that the government has merely enforced a “neutral standard” that “requires service in [one’s] biological sex.”
As Joshua Matz wrote in March (quoting Justice Antonin Scalia), this argument “taxes the credulity of the credulous.” Matz, who authored an amicus brief opposing Trump’s policy, pointed out that “revised policy’s effects almost perfectly replicate the prior, discredited policy and mirror the anti-transgender objectives that birthed it.” The president’s attempt to “launder his animus” is laughable. A 44-page report ghostwritten by anti-transgender advocates does not magically transform an unconstitutional assault on sexual minorities into a neutral, lawful policy. Yet both Callahan and Clifton appeared to seriously consider that possibility, raising the prospect of a 2–1 decision in favor of the Trump administration. (Fisher asked few questions but will almost certainly vote against the ban.)
If the court does, indeed, uphold the policy, it won’t take effect immediately, since the injunctions issued by three other district courts will remain in place. But it will probably compel the plaintiffs to take their case to a decidedly unfriendly Supreme Court. When this litigation began, LGBTQ advocates hinged their hopes on Justice Anthony Kennedy, a swing vote on social issues. He has since been replaced by Justice Brett Kavanaugh, who will likely be hostile to transgender rights. Transgender plaintiffs have been on a winning streak for more than a year. But as Wednesday’s arguments illustrated, they are now entering very dangerous territory.