Behind The Story

Last month I wrote about a court decision out in Washington that we won but the story is a lot deeper than winning the case; I came across an article that looks into the impact of the court case on us.

Constitutional milestone on transgender rights
Constitution Daily
By  Lyle Denniston
April 16, 2018

For the first time in any court, a federal judge in Seattle has ruled that transgender people are entitled to the fullest protection of the Constitution against discrimination.  U.S. District Judge Marsha J. Pechman issued that ruling Friday in a case involving President Trump’s move to bar almost all transgender individuals from serving in the U.S. military, but the decision would also apply to other kinds of discrimination claims by transgender people.

In doing so, the judge refused an Administration request to lift a temporary order she had issued in December barring enforcement of the ban that was first announced last July by President Trump in a Twitter message that caught the U.S. military by surprise.  The ban was designed to undo completely a policy that the Obama Administration had adopted, permitting transgender individuals to join or continue serving in the military.

“Any attempt to exclude them from military service will be looked at with the highest level of care” by the courts, Judge Pechman wrote.

What made this decision unique was…

Judge Pechman reached her historic ruling on the level of constitutional protection with two conclusions.

First, she ruled that transgender people have long been the targets of discrimination based on their gender identity, that their identity is something basic to their human character rather than a personal choice, that they are fully capable of functioning in society, and that they lack political power sufficient to protect themselves against bias.  That meant she had designated them as what technically is called a “suspect class” – not because their identity stirs suspicion, but because that identity is so basic to them that any official policy that treats them less favorably is “suspect” under the Constitution’s guarantees of equality and due process.

Second, the judge said this designation entitles transgender people to have official forms of discrimination against them judged in court by “strict scrutiny” – the toughest test that government policy must meet in order to survive as constitutionally valid.  Under that test, a government policy challenged as discriminatory will be struck down unless it is proven to serve a “compelling government interest” and is “narrowly tailored” to do so.

I have two thing that I think are important, first “…that identity is so basic to them that any official policy that treats them less favorably is “suspect” under the Constitution’s guarantees of equality and due process.” I have to agree we tend to be dismissed by the police when we are assaulted… what do you expect when you dress as a woman, we are inviting assaults or they think that we all work the street. And second, if a “bathroom bill” is passed then the government must show that there is a “compelling” need to ban us from using the bathroom.

So this ruling goes a lot further than just barring the Trump administration from banning us from serving in the military. Under this ruling the government must show that we will cause harm to the military and you can bet your bottom dollar that they will appeal her decision.