Judge Compares Trump Military Trans Ban to Historical `Errors'

(Bloomberg) -- A federal judge in Seattle pushed ahead with a challenge to President Donald Trump’s ban on transgender people serving in the military, comparing the government’s case to historical errors by courts that decades ago signed off on excluding people based on race and gender.

“We gave historical deference when we excluded blacks from the military," U.S. District Judge Marsha J. Pechman said at a hearing Tuesday. "We gave deference when we did not have mixed military units” and when the U.S. barred gays and lesbians from serving, she said. “And in retrospect all of that deference was in error.”

Pechman said she wanted to move forward despite Trump’s statement late Friday detailing a new version of the ban crafted by military experts. Trump initially tweeted last summer that the government wouldn’t allow any transgender individuals to serve in the military.

Critics have argued the trans ban was another unconstitutional attempt to inflame the U.S. culture war, as happened with Trump’s earlier travel ban against several Muslim nations and the decision to rescind legal protections for young undocumented immigrants. And like those earlier policies, plaintiffs have successfully used Trump’s tweets and the lack of a clear legal justification to undo his efforts in court.

The Human Rights Campaign, represented by Lambda Legal, and Washington State are asking to have the ban permanently tossed out, arguing that the government failed to offer any evidence that there would be “important governmental issues” in military readiness, unit cohesion or cost related to transgender service members.

‘Clear’ Guidance

“Judge Pechman was clear today: Because of the injunctions in our case and others, the Trump administration cannot implement any policy barring transgender individuals from serving in the military,” Washington Attorney General Bob Ferguson said in a statement after the hearing. “Nothing the federal government has said or done up to this point, including Friday’s developments, changes anything about the unlawful and discriminatory nature of President Trump’s ban.”

The government said that Pechman should dismiss the challenge because the case was superseded by the new policy, which would bar those with gender dysphoria. The term describes transgender persons uncomfortable with their biological sex, resulting in significant distress or difficulty functioning, according to a Feb. 22 memo to the president from Defense Secretary James Mattis.

Pechman asked the plaintiffs to provide a briefing within seven days analyzing the impact of the government’s latest filings. She said she intends to issue her decision afterward.

The 67-year-old judge also asked the government to refile its briefings, saying the font was too small and didn’t adhere to the proper format.

The case is Karnoski v. Trump, 17-cv-01297, U.S. District Court, Western District of Washington (Seattle).

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