On Monday, October 30, U.S. District Court Judge Colleen Kollar-Kotelly issued an opinion in Doe v. Trump, barring President Trump from changing the government’s current policy, regarding transgender individuals’ military service opportunities. Under the current policy, all transgender service members must be discharged by March 2018.
She found that the policy is “not genuinely based on legitimate concerns regarding military effectiveness or budget constraints, but are instead driven by a desire to express disapproval of transgender people generally.”
Judge Kollar-Kotelly found the plaintiffs, several individuals who are current service members and who also identify as transgender, are likely to succeed in demonstrating that “a policy banning the accession, and allowing the discharge, of an entire category of individuals from the military solely because they are transgender, despite their ability to meet all of the physical, psychological, and other standards for military service” is unconstitutional under the Fifth Amendment, which “forbids the Federal Government to deny equal protection of the laws.”
First, Judge Kollar-Kotelly opined that transgender individuals “appear to satisfy the criteria of at least a quasi-suspect classification,” citing “history of purposeful unequal treatment,” “political powerlessness,” and the “immutable, or distinguishing characteristics that define [transgender individuals] as a discrete group.”
Next, she notes that “[a]lthough the Court is aware of no binding precedent on this issue, it has taken note of the findings and conclusions of a number of other courts from across the country that have also found that discrimination on the basis of someone’s transgender identity is a quasi-suspect form of classification that triggers heightened scrutiny.”
“Under intermediate scrutiny, the government must demonstrate an “exceedingly persuasive justification” for its actions.” Judge Kollar-Kotelly found that the defendants are unlikely to be able to demonstrate that the current policy is “substantially related” to any “legitimate government interest.” She bases this finding on “the combined effect of a number of unusual factors,” including the “hypothetical and extremely overbroad” reasons provided for the “decision to exclude transgender service members,” the fact that the “reasons proffered … for excluding transgender individuals … were actually contradicted by the studies, conclusions and judgement of the military itself,” and “the circumstances surrounding the announcement of the President’s policy.”
“In sum, even if none of the reasons discussed above alone would be sufficient for the Court to conclude that Plaintiffs were likely to succeed on their Fifth Amendment claim, taken together they are highly suggestive of a constitutional violation. The likelihood of success factor accordingly weighs in favor of granting preliminary injunctive relief. For the same reasons, the Court will deny Defendants’ motion to dismiss Plaintiffs’ claims under the Due Process Clause.”
Read the opinion in full here: Doe v. Trump — Opinion, October 30, 2017