Liberal judge concocts quite a creative rationale for tossing Trump's military transgender ban

The judge held that government actions which discriminate against transgender people must be subject to heightened judicial scrutiny, for two reasons. First, Kollar-Kotelly wrote that transgender people should qualify as a “suspect class” because they face “severe persecution” on the basis of “immutable” traits and often lack the political power to protect themselves. Moreover, the discrimination that transgender people face is invidious and unjustified. “The court is aware of no argument or evidence,” Kollar-Kotelly wrote, “suggesting that being transgender in any way limits one’s ability to contribute to society. The exemplary military service of plaintiffs in this case certainly suggests that it does not.” Second, and independent from this question, Kollar-Kotelly held that anti-trans discrimination qualifies as sex discrimination under the Fifth Amendment’s equal protection component and thus requires more searching judicial review. This conclusion aligns with the growing judicial consensus that discrimination on the basis of gender identity always qualifies as sex stereotyping, a form of sex discrimination. Trump’s ban, she explained, excludes trans service members “on the basis of their failure to conform to gender stereotypes.” She continued: The defining characteristic of a transgender individual is that their inward identity, behavior, and possibly their physical characteristics, do not conform to stereotypes of how an individual of their assigned sex should feel, act and look. A service member who was born a male is punished … if he identifies as a woman, whereas that same service member would be free to join and remain in the military if he was born a female, or if he agreed to act in the way society expects males to act. The [trans ban is] accordingly inextricably intertwined with gender classifications.

As a policy that discriminates on the basis of a suspect classification—either sex or transgender status itself—Kollar-Kotelly subjected the trans ban to intermediate scrutiny, which requires an “exceedingly persuasive justification.” There is, quite obviously, no such persuasive justification here. In her decision, Kollar-Kotelly first summarized the Justice Department’s defense of the trans ban: that many trans people have a disqualifying mental disorder, waste government funds, and harm “unit cohesion.” Even if these canards were true of some trans people, Kollar-Kotelly wrote, the policy remains “extremely overbroad,” raising the possibility that it is motivated by animus. The government also provides “practically no explanation at all, let alone support, for their suggestion that the presence of transgender individuals may be harmful to ‘unit cohesion.’ ” More importantly, Kollar-Kotelly held, the government’s reasons for banning trans troops are “not merely unsupported, but [are] actually contradicted by the studies, conclusions and judgments of the military itself.” Kollar-Kotelly then listed the many factors that led the government—in the pre-Trump era—to permit transgender service: the RAND study, which found that trans troops had no adverse effect on effectiveness and cost the military very little; the Department of Defense Working Group to further explore trans service; determinations by each branch that trans troops posed no problem; and a conclusion by then-Secretary of Defense Ash Carter that “the needs of the military were best served by allowing transgender individuals to openly serve.”

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