April 16, 2018 at 10:57 am PDT | by Jon Davidson
Getting Strict About Anti-Transgender Discrimination
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Jon Davidson (Photo courtesy of Davidson)

Excuse me while I get a little “nerdy,” but the lawyer in me is ecstatic about a ruling issued April 13th by Federal District Court Judge Marsha Pechman in Karnoski v. Trump, one of the pending challenges to President Trump’s shameful efforts to ban transgender Americans from joining or serving openly in the military.

Judge Pechman rejected the federal government’s efforts to have the case dismissed and held it should proceed to trial. She also kept in place the injunction she previously issued ordering that, pending trial, transgender individuals be allowed to join, serve openly in, and receive needed medical care while serving in the military. This is great news, and I’m particularly happy because I previously worked on this case with a wonderful team of lawyers at Lambda Legal, OutServe-SLDN,  Kirkland & Ellis and Newman DuWors on behalf of an amazing group of brave clients.

But that’s not what got my nerd juices flowing. Instead, I could barely contain myself when I read that the judge also ruled that government discrimination against transgender individuals must meet “strict scrutiny”!  

What?

Let me explain. The U.S. Constitution guarantees all people “equal protection of the laws.” That means that when the government treats one group of people differently from others, it must at least have a legitimate reason for doing so. Ordinarily, the government is presumed to have one, and the burden is on those challenging government action to prove that no valid justification for the differential treatment can even be hypothesized. That’s hard to do.

While courts normally assume that problematic government action will be corrected by the political branches, there are times when the judiciary rightly is concerned that such an assumption is unwarranted. When there’s reason to suspect that bias rather than reasonable policy concerns may have motivated the action and that the normal political process may not readily fix it, courts correctly have concluded that they have the duty look more closely and apply what’s called “heightened scrutiny” of what other parts of the government have done.  

The considerations the Supreme Court has said are important to determining whether heightened scrutiny should apply are well described in Judge Pechman’s recent decision. First, if there is a history of discrimination against the group, the government’s action may involve reflexive reliance on past inequality rather than having been dispassionately thought through. Second, if the unequal treatment is based on a trait that is not related to ability to perform or contribute in society, it again is more likely to be grounded in prejudice rather than any fair reason. Third, if the people treated unequally share obvious, immutable, or distinguishing characteristics, not only does it make it easier for them to be targeted unfairly, but the political process may not operate well to address that unfairness, because those people may be seen as a “them” that need not be the subject of much concern, rather than one of “us.” Finally, if the group suffering the discrimination is a minority or relatively political powerless, reliance on the majority to correct the problem can hardly be adequate.

The most exacting form of judicial review of government action is “strict scrutiny.”  To date, this extremely close examination has only been applied to discrimination based on race, national origin, and alienage. Other forms of discrimination that have been held entitled to heightened—but not necessarily strict—federal judicial scrutiny, include discrimination based on sex, illegitimacy, and, according to a few courts, sexual orientation.     

Several previous cases have held that discrimination based on gender identity should receive heightened scrutiny, but I believe Judge Pechman’s decision is the nation’s very first to say that scrutiny must be “strict.” Her opinion forcefully demonstrates why judicial examination of anti-transgender discrimination deserves this most acute level of searching review: “The history of discrimination and systemic oppression of transgender people is long and well recognized” and that discrimination “clearly is unrelated to their ability to perform and contribute to society.”

In addition, the Ninth Circuit previously recognized that gender identity, which clearly is a distinguishing characteristic, is immutable. Furthermore, “transgender people as a group lack the relative political power to protect themselves from wrongful discrimination.”

For challenged government action to survive strict scrutiny, the government bears the burden of establishing, with facts, that its discriminatory acts are necessary to meet a compelling government interest and that the lines drawn to further that interest are so narrowly tailored that there is limited or no possibility the government’s motive involved illegitimate prejudice or stereotype. That is so hard a test to satisfy that there’s a common lawyer quip that “strict scrutiny is strict in theory, but fatal in practice.”
Permanent reversal of the transgender military ban, and other anti-trans policies, accordingly seems more likely than ever. And that’s something not just law nerds can celebrate

Jon W. Davidson, former legal director of Lambda Legal, has been a leading LGBT legal rights advocate and constitutional scholar for more than 30 years.

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