Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
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Marty Lederman msl46 at law.georgetown.edu
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As many Balkinization readers may know, a few weeks ago the Solicitor General filed petitions for certiorari “before judgment” with the Supreme Court in three cases (Nos. 18-676, 677, 678) challenging then-Secretary of Defense Mattis’s new policy regarding transgender service-members. In each of the cases a district court preliminarily enjoined DOD from implementing the new policy. On Friday, however, a D.C. Circuit panel in one of the cases (consisting of Judges Griffith, Wilkins and Williams) held that the district court should have dissolved its injunction, issued in 2017, because of a subsequent change in circumstances—namely, Secretary Mattis’s revised policy, which he promulgated in February 2018. The court of appeals concluded that the District Court’s refusal to reconsider its injunction was based upon “an erroneous finding that the  Mattis Plan was the equivalent of [the earlier] blanket ban on transgender service.” The panel explained: “Although the Mattis Plan continues to bar many transgender persons from joining or serving in the military, the record indicates that the Plan allows some transgender persons barred under the military’s standards prior to the Carter Policy to join and serve in the military.” The court of appeals also strongly hinted, without conclusively holding, that the new Mattis plan is likely to survive Fifth Amendment scrutiny in light of the deference that courts ordinarily accord military judgments.
The “universal” injunctions in two California cases remain in effect, however (a Ninth Circuit panel has already heard argument in one of the cases, Karnoski,and its decision is pending). The Supreme Court is scheduled to discuss the SG's cert.-before-judgment petitions in those cases at its conference this Friday.
What's the government's justification for such a rush, which would circumvent the ordinary course of litigation in the lower courts? DOJ argues that the Obama-era transgender policy that the trial court injunctions have left in place, which former Secretary Ash Carter promulgated in 2016, poses a grave risk to “military effectiveness and lethality”—that the armed services must be permitted to exclude more transgender service-members now in order to be “in the strongest position to protect the American people, to fight and win America’s wars, and to ensure the survival and success of our Service members around the world.” These are therefore the sorts of rare cases of high exigency, the petitions insist, that require the Court's immediate resolution. By way of analogy the government cites the landmark precedents of the Steel Seizure Case, the Nixon tapes case, and the Dames & Moore case challenging President Carter’s freeze of Iranian assets during the hostage crisis.
I’d be surprised if the Supreme Court grants the petitions before judgment—in part because the Chief Justice appears committed to making this a relatively low-drama Term; and in part because Friday’s D.C. Circuit decision demonstrates that the fate of the Mattis policy in the lower courts is anything but certain; but more importantly because it’s simply implausible that the immediate exclusion of a handful of transitioned transgender service-members from entering the military, and/or preventing a small number of current service-members from beginning transition, is necessary to enable the armed forces to “fight and win America’s wars, and to ensure the survival and success of our Service members around the world.” The Court might (or might not) ultimately defer to Secretary Mattis’s judgment when it adjudicates the merits, but I doubt it'll be eager to credit—to give credence to—such obvious hyperbole.
It’s more likely the Court will simply grant cert. in the regular course, and hear the case next Term, with a decision in 2020. If I'm right about that, then the most pressing question for now is what the status quo will be for the next 15 months or so: Will the Carter policy remain in place, or will the Mattis policy supersede it, with a chance for a revision of the Carter policy if the Court concludes that the Mattis policy is unconstitutional? In addition to his petitions, the SG has filed motions with the Court to stay the district court injunctions. "[W]hat is of paramount importance," the SG argues, "is permitting the Secretary of Defense to implement the policy that, in his judgment after consultation with experts, best serves the military’s interests" between now and the time the Court resolves the merits.
I’d be somewhat surprised if there are five votes on the Court to stay the injunctions (unless it's part of a compromise among the Justices that pushes the merits determination to next Term): Implementation of the Carter policy has not caused the sky to fall or grievously impacted military readiness. Indeed, because the Mattis policy by its terms would not effect transgender people already in the military who have been diagnosed with gender dysphoria, the principal immediate impact of the injunctions is simply to allow a handful of people who have already successfully transitioned to the gender with which they identify to “access” into (i.e., to join) the armed forces. The idea that that the addition of this small number of transitioned individuals–a tiny percentage of the transgender persons in the armed forces–would profoundly affect military readiness and effectiveness simply isn’t plausible, even if the Court pays great deference to the Secretary of Defense.
Whether I’m right about that or not, however, the impending stay motions, rather than the petitions before judgment, are probably where the real action is this when the Court meets on Friday.
* * * *
A couple of things about the government’s recent filings are especially noteworthy. Although of course the Solicitor General emphasizes what he describes as the profound differences between the Carter and Mattis policies—he is requesting extraordinary relief to quash the former, after all—he stresses that in two important respects the Carter and Mattis policies are similar to one another.
First, the SG argues that, under both policies, current service-members diagnosed with gender dysphoria who have not yet fully transitioned to their experienced gender, as well as transgender service-members without such a diagnosis, must continue to “serve in their biological sex” rather than “in their preferred sex.” (These are the government’s unfortunate formulations. What the government means by them is that although such service-members can serve as "openly" transgender in the sense that they can identify as such, they must abide by the grooming, uniform and use-of-facilities rules for the sex they were assigned at birth.)
Second, the SG argues that therefore both policies, Carter’s and Mattis’s, discriminate primarily on the basis of whether an individual suffers from gender dysphoria or has transitioned rather than on whether the person is transgender. Here’s the key, striking passage from page 7 of the government's petition in Trump v. Karnoski, No. 18-676:
Like the Carter policy, the Mattis policy holds that “transgender persons should not be disqualified from service solely on account of their transgender status” [citing the Mattis policy at page 149a of the petition]. And like the Carter policy, the Mattis policy draws distinctions on the basis of a medical condition (gender dysphoria) and related treatment (gender transition). Id. at 207a-208a. Under the Mattis policy—as under the Carter policy—transgender individuals without a history of gender dysphoria would be required to serve in their biological sex, whereas individuals with a history of gender dysphoria would be presumptively disqualified from service. Ibid. The two policies differ in their exceptions to that disqualification.
The D.C. Circuit panel decision last Friday in effect agreed with this latter contention: “Although the Mattis Plan continues to bar many transgender persons from joining or serving in the military,” the panel explained, “the record indicates that the Plan allows some transgender persons barred under the military’s standards prior to the Carter Policy to join and serve in the military.”
The idea that the Trump/Mattis policy doesn't discriminate on the basis of transgender status might be a bit startling to those who haven’t been carefully following the developments in the cases. After all, in his initial memorandum (see pp. 99a-100a of the Karnoski petition), President Trump directed Secretary Mattis “to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016.” Yet it’s true, at least as a formal matter, that the Mattis policy (see pp. 207a-208a of the Karnoski petition) does not make distinctions based upon transgender status, as such, let alone implement a transgender "ban"—which is why, after receiving Secretary Mattis’s proposal, President Trump revoked his previous order that would have required such discrimination (see pp. 210a-211a).
That (nominal) about-face in the government’s formal ground of distinction is no accident. The principal reason DOD and DOJ made the move—in effect, to argue that DOD has not in fact implemented the "transgender ban" that President Trump ordered but has instead "merely" altered the ramifications of distinctions drawn by the Obama Administration—is not merely to try to get some mileage out of the notion that “Obama did it, too,” but also to argue that if the existing Carter policy is not subject to heightened scrutiny under the so-called equal protection component of the Fifth Amendment, then the Mattis policy shouldn’t be subject to such heightened scrutiny, either, given that it’s predicated on similar grounds of discrimination (albeit resulting in far harsher consequences).
In a detailed post over at Just Security, I try to unpack and clarify the differences between the Mattis and Carter policies in order to understand just what’s at stake in these challenges and to explain why the Mattis policy ought to be constitutionally suspect notwithstanding the fact that it's no longer a transgender ban. Here's a slightly amended version of the conclusion of that post:
If, as appears to be the case, DOD’s principal rationale is based upon an alleged concern about allowing transgender women to share certain facilities with other women, and even if it would be justifiable to impose certain limited restrictions on such facility access, that wouldn't begin to explain why it’d be reasonable for DOD also to prohibit transgender service-members from adhering to the uniform and grooming standards of their experienced gender; for prohibiting those same valuable service-members from engaging in the process of, e.g., social and medical transitioning; and, most dramatically, for categorically prohibiting fully transitioned individuals from joining the armed services at all. As DOJ emphasizes in its latest filings, even the Mattis policy would permit nontransitioned persons to serve “openly” as transgender. If that’s the case, then what would possibly justify preventing those same persons from dressing and grooming themselves in accord with their experienced, and self-proclaimed, gender, or justify a categorical exclusion of very valuable and skilled transitioned persons from joining the armed forces? Because such limitations are grossly disproportionate to the alleged problems, they'd appear to be motivated by nothing more than simple, gratuitous cruelty. If that’s right, then the Mattis retention limitations ought to be constitutionally dubious no matter what degree of scrutiny the Court ultimately applies, and regardless of the degree of deference it affords to reasonable military judgments. Posted
by Marty Lederman [link]