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Court blocks Trump's trans ban

by Lisa Keen

A federal judge in Washington, D.C., Monday granted an injunction to stop President Donald Trump's policy banning transgender people from the military from taking effect until a lawsuit challenging the new ban can be settled.

The Trump ban was scheduled to take effect March 23.

The judge's order came in a preliminary ruling in Doe v. Trump, a lawsuit filed by the National Center for Lesbian Rights and GLBTQ Gay & Lesbian Advocates & Defenders on behalf of eight plaintiffs.

Judge Colleen Kollar-Kotelly, a Clinton appointee, issued the 76-page memorandum opinion October 30, saying the transgender service members pressing the lawsuit are likely to win on their claim that the Trump ban violates their rights to due process and equal protection. She also signaled she would likely scrutinize the proposed ban with a heightened level of judicial review.

"As a form of government action that classifies people based on their gender identity, and disfavors a class of historically persecuted and politically powerless individuals, the president's directives are subject to a fairly searching form of scrutiny," wrote Kollar-Kotelly. The "fairly searching" scrutiny refers to an important judicial consideration when a court looks at whether a law that treats one group of people differently than others. Laws that disfavor racial minorities receive "strict" scrutiny; laws that disfavor women receive an intermediate level of scrutiny. Most other laws can pass muster with a simple "rational" reason.

GLAD attorney Jennifer Levi noted that this is "not the first time a court has applied heightened review" but she said it is an "extraordinarily important decision."

Locally, community leaders praised the ruling and criticized the president.

"Trump's ill-informed, bigoted attack on transgender soldiers will not make our country stronger or safer," gay state Senator Scott Wiener (D-San Francisco) said in a statement. "This ruling is great news for our country and for the brave trans patriots who put their lives on the line for us. Everyone who wants to serve in the United States military should be allowed to serve, regardless of gender identity or sexual orientation. Today is a victory for justice."

It is the first court action against the proposed Trump transgender ban since last summer when Trump announced it.

Levi and Shannon Minter, legal director for the National Center for Lesbian Rights, said the October 30 order keeps the military's policy concerning transgender service members where it was before this summer, when Trump began rolling out his plans to ban transgender people. Prior to that, the military was set to enforce, on January 2, a policy approved by the Obama administration to allow transgender people to enlist and serve.

But on July 26, President Trump announced on Twitter that the Department of Defense should ban transgender people in the military. A month later, he issued an official memorandum, "Military Service by Transgender Individuals," directing the DOD to implement the ban. That memo said the ban would take effect March 23 and would remain in place "until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice" would not have negative effects.

In her memorandum, Kollar-Kotelly noted that the administration's purported reasons for the ban "do not appear to be supported by any facts. ..."

Two other lawsuits are pending against the ban - one by Lambda Legal Defense and Education Fund and Outserve-SLDN (Karnoski v. Trump) in the U.S. District Court for Western Seattle and one by the American Civil Liberties Union (Stone v. Trump) in U.S. District Court for Maryland.

Joshua Block, an attorney with the ACLU's national LGBT project, said Monday's memorandum "is the first decision striking down President Trump's ban, but it won't be the last."

"The federal courts are recognizing what everyone already knows to be true: President Trump's impulsive decision to ban transgender people from military service was blatantly unconstitutional," said Block.

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