SEATTLE – President Donald Trump's move last week to tweak his ban on transgender people joining the military might not save it from being struck down, a federal judge in Seattle suggested Tuesday.
U.S. District Judge Marsha Pechman was one of four federal judges around the country who late last year temporarily blocked the president from overturning an Obama-era directive allowing transgender troops to serve openly, finding the ban likely unlawful and discriminatory. The legal challenges have been brought by transgender troops, those who aspire to serve and a range of civil rights organizations.
Pechman scheduled a hearing Tuesday for arguments on whether to make her ruling permanent, but late Friday, Trump announced that he was rescinding his previous decision after a Pentagon review. Instead of barring transgender troops outright, he would allow them to serve in certain limited cases. Any who have transitioned to their preferred gender or who need medical treatment to do so would be presumed ineligible for service, though they could seek individual waivers allowing them to serve.
The Justice Department immediately asked Pechman and other federal judges to dissolve their old orders as moot — something Pechman showed little interest in doing, noting that the late Friday filing left scant time for the plaintiffs to respond.
None of the other courts held hearings in cases challenging the transgender ban since the new policy came out Friday, though U.S. District Judge Colleen Kollar-Kotelly in Washington, D.C., scheduled a case conference for Wednesday morning. Cases are also pending in federal court in Baltimore and Riverside, California.
Pechman requested further briefing within a week about how the president's new policy might affect the case, but she insisted Tuesday that both sides limit their arguments to the broader initial ban and suggested that her ruling might focus on that. The hearing was reminiscent of some of the legal challenges to Trump's travel ban, when he repeatedly changed his policies in light of unfavorable court rulings.
Pechman repeatedly asked Justice Department lawyer Ryan Parker for any evidence in the record that banning transgendered people would further the military's asserted goals of unit cohesion, morale, preparedness and cost savings: "I can't find any factual underpinnings in what you've supplied to me," she said at one point.
Parker pointed her toward a report from Defense Secretary Jim Mattis, released in support of the president's revised policy, but the judge dismissed it, saying the report wasn't properly before her because it was filed late.
Pechman also shrugged off the government's argument that the courts should give deference to the military as the entity best suited to determine what is required for national defense. The judge noted that the courts once gave such deference in allowing the military to segregate troops by race, ban women, ban women from combat, and ban gays — all of which have since been overturned.
"In retrospect, all of that deference was in error," Pechman said.
She chastised Parker over other points as well, saying the government had evaded page limits by using a smaller font than allowed in its filings and that he failed to respond to arguments raised by the state of Washington, which intervened on the side of the plaintiffs.
Natalie Nardecchia, an attorney with Lambda Legal who represents the plaintiffs, argued that the government's new policy is irrelevant: Trump set out with a goal of banning transgender people from serving in any capacity, as he announced on Twitter, and then set about having the military come up with an after-the-fact rationale as to why it should be implemented.
"When the government discriminates against a group of people, they have to have a reason; they can't say, we'll go study it and come up with a reason," Nardecchia said. "Making slight changes in the policy in its final version does not render it constitutional."