On Friday, U.S. District Judge Marsha Pechman of the Western District of Washington ruled that transgender people were a protected class and upheld injunctions that were issued against the ban last December. She wrote that there was a “long and well-recognized” history of discrimination and systemic oppression against transgender people.
“Because transgender people have long been subjected to systemic oppression and forced to live in silence, they are a protected class,” Pechman wrote. “Therefore, any attempt to exclude them from military service will be looked at with the highest level of care, and will be subject to the Court’s ‘strict scrutiny.’ This means that before Defendants can implement the Ban, they must show that it was sincerely motivated by compelling interests, rather than by prejudice or stereotype, and that it is narrowly tailored to achieve those interests.”
Pechman also wrote that “discrimination against transgender people clearly is unrelated to their ability to perform and contribute to society.”
“The history of discrimination and systemic oppression of transgender people in this country is long and well-recognized. Transgender people have suffered and continue to suffer endemic levels of physical and sexual violence, harassment, and discrimination in employment, education, housing, criminal justice, and access to health care,” Pechman wrote.
Pechman also said the changes included in the revised version of the ban didn’t truly amount to a new policy but “instead threaten the very same violations” that led her and other judges to block the ban previously.
The judge also wrote that the military is not exempt from constitutional provisions that protect a person’s rights. “Despite increased visibility in recent years, transgender people as a group lack the relative political power to protect themselves from wrongful discrimination, Pechman said. “The military has not been exempted from constitutional provisions that protect the rights of individuals.”
The President's most recent version of the the transgender military ban would only allow transgender people to serve if they did not have a historical diagnosis of gender dysphoria and were able to serve according to their assigned sex at birth.
The parties in the case have been directed to proceed with discovery and prepare for a trial on the issues to determine whether the ban violates equal protection, substantive due process, and the First Amendment.