The 9th U.S. Circuit Court of Appeals alleged Seattle’s Judge Pechman failed to give the policy sufficient deference and must reconsider the case.

President Trump triumphed in his efforts to ban transgender people from the military after the U.S. appeals court Friday ordered U.S. District Judge Marsha Pechman to review her ruling.

The 9th U.S. Circuit Court of Appeals alleged Seattle’s Judge Pechman failed to give the policy sufficient deference after she ruled against the ban, saying it infringed on the constitutional rights of transgender service members and recruits.

Without ruling on the merits, a three-judge panel of the San Francisco-based appeals court said Pechman did not give the military’s judgment enough deference and ordered her to give it more.

Pechman is one of four federal judges to rule against Trump’s policy toward transgender military personnel.

In January, the Supreme Court, which has a 5-4 conservative majority, lifted lower court injunctions against the policy, while allowing legal challenges to continue.

The policy also allowed military personnel diagnosed with gender dysphoria — “the conflict between a person's physical gender and their identified gender” — under Obama’s policy to serve according to their gender identity.

In April 2018, Pechman extended her injunction to the revised policy, finding no evidence that transgender troops reduced the military’s effectiveness, and saying the ban undermined the dignity of those troops.

In March 2018, Trump backed a revised policy from then-Defense Secretary Jim Mattis that disqualified most transgender people with a history of gender dysphoria from military service, and people who have undergone gender transition steps.

On Friday, the appeals court said the revised policy “discriminates on the basis of transgender status” but was nevertheless “significantly different” from the 2017 ban. </s> Dear Reader, As you can imagine, more people are reading The Jerusalem Post than ever before. Nevertheless, traditional business models are no longer sustainable and high-quality publications, like ours, are being forced to look for new ways to keep going. Unlike many other news organizations, we have not put up a paywall. We want to keep our journalism open and accessible and be able to keep providing you with news and analysis from the frontlines of Israel, the Middle East and the Jewish World.

A U.S. appeals court handed President Donald Trump a victory in his effort to ban most transgender people from the military, ordering a judge to reconsider her ruling against the policy, which the U.S. Supreme Court has allowed to take effect. 



The 9th U.S. Circuit Court of Appeals on Friday set aside a ruling by U.S. District Judge Marsha Pechman in Seattle, which had said the ban likely violated the constitutional rights of transgender service members and recruits.

Without ruling on the merits, a three-judge panel of the San Francisco-based appeals court said Pechman did not give the military's judgment enough deference, and ordered her to give it more.That finding could strengthen Trump's position, though the government still had the burden of justifying his policy.Sharon McGowan, legal director of Lambda Legal, which represents opponents of the ban, said she believed the decision foreshadowed the eventual "vindication of the constitutional right of the transgender service members who have been harmed by this policy."Pechman is one of four federal judges to rule against Trump's policy toward transgender military personnel.In January, the Supreme Court, which has a 5-4 conservative majority, lifted lower court injunctions against the policy, while allowing legal challenges to continue.Kelly Laco, a spokeswoman for the U.S. Department of Justice, said that agency will continue defending the ban, which lets the Pentagon "continue implementing a personnel policy it determined necessary to best defend our nation."Trump, a Republican, announced the transgender ban in July 2017, saying the military needed to focus on "decisive and overwhelming victory" without being burdened by the "tremendous medical costs and disruption" of having transgender personnel.The move marked an about-face from a landmark policy announced in 2016 by Democratic President Barack Obama, which let transgender people serve without fear of being discharged, and receive medical care to transition genders.In March 2018, Trump backed a revised policy from then-Defense Secretary Jim Mattis that disqualified most transgender people with a history of gender dysphoria from military service, and people who have undergone gender transition steps.Medical experts define gender dysphoria as distress from the internal conflict between physical gender and gender identity.The policy also allowed those military personnel diagnosed with gender dysphoria under Obama's policy to serve according to their gender identity.In April 2018, Pechman extended her injunction to the revised policy, finding no evidence that transgender troops reduced the military's effectiveness, and saying the ban undermined the dignity of those troops.On Friday, the appeals court said the revised policy "discriminates on the basis of transgender status" but was nevertheless "significantly different" from the 2017 ban."On the current record," the court said, "a presumption of deference is owed, because the 2018 policy appears to have been the product of independent military judgment."The government, nevertheless, still bore the burden of showing the policy significantly furthered its important interests, "and that is not a trivial burden," the court added. Friday's decision related to an August 2017 lawsuit by current and aspiring Army and Navy personnel, including one stationed overseas with nearly 20 years of experience. Washington state later joined the plaintiffs.

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For more information and to sign up, click here>> </s> A US appeals court handed President Donald Trump a victory in his effort to ban most transgender people from the military, ordering a judge to reconsider her ruling against the policy, which the US Supreme Court has allowed to take effect.

The 9th US Circuit Court of Appeals on Friday set aside a ruling by US District Judge Marsha Pechman in Seattle, which said the ban likely violated the constitutional rights of transgender service members and recruits.

Without ruling on the merits, a three-judge panel of the San Francisco-based appeals court said Pechman did not give the military's judgment enough deference, and ordered her to give it more.

That finding could strengthen Trump's position, though the government still had the burden of justifying his policy.

Sharon McGowan, legal director of Lambda Legal, which represents opponents of the ban, said she believed the decision foreshadowed the eventual "vindication of the constitutional right of the transgender service members who have been harmed by this policy."

The US Department of Justice did not immediately respond to a request for comment.

Trump, a Republican, announced the transgender ban in July 2017, saying the military needed to focus on "decisive and overwhelming victory" without being burdened by the "tremendous medical costs and disruption" of having transgender personnel.

The move marked an about-face from a landmark policy announced in 2016 by Democratic President Barack Obama, which let transgender people serve without fear of being discharged, and receive medical care to transition genders.

In March 2018, Trump backed a revised policy from then-Defense Secretary Jim Mattis that disqualified most transgender people with a history of gender dysphoria from military service, and people who have undergone gender transition steps.

On Friday, the appeals court said the revised policy "discriminates on the basis of transgender status" but was nevertheless "significantly different" from the 2017 ban.

"On the current record," the court said, "a presumption of deference is owed, because the 2018 policy appears to have been the product of independent military judgment." </s> On Friday, a federal appeals court overturned a lower court ruling declaring that Donald Trump’s ban on transgender military service is unconstitutional. Its decision might seem like a setback for the service members challenging the policy—but it’s actually a qualified victory for transgender rights with sweeping ramifications in other cases.

After Trump announced his ban on trans military service via tweet in July 2017, four federal judges issued injunctions prohibiting its implementation. All four courts found the policy to be an unjustified violation of transgender Americans’ equal protection rights. In January, however, the Supreme Court lifted two of those injunctions by a 5–4 vote while the government appeals the rulings. The other two injunctions were eventually lifted in light of SCOTUS’s order, allowing the Pentagon to implement the ban. Meanwhile, appeals courts have continued to mull the policy’s constitutionality.

The 9th U.S. Circuit Court of Appeals finally issued its decision on the matter Friday, vacating U.S. District Judge Marsha J. Pechman’s 2018 ruling against the ban. This outcome in Karnoski v. Trump is no surprise, since the Supreme Court already lifted Pechman’s injunction. The 9th Circuit found that Pechman hadn’t properly assessed whether former Defense Secretary James Mattis’ final implementation plan shored up the legality of the ban by providing the “considered military judgment” absent from Trump’s impromptu tweets and the resulting scramble to rationalize them. Its decision in Karnoski also found that Pechman had improperly applied strict scrutiny, thereby giving insufficient deference to the commander in chief.

But the 9th Circuit didn’t stop there. It went on to explain that the trans ban does discriminate against transgender people—a fact contested by the administration, which insists that the policy only discriminates against people with gender dysphoria. (This distinction makes no sense.) Moreover, the court found that discrimination on the basis of transgender status constitutes sex-based discrimination and is therefore subject to intermediate scrutiny. That means anti-trans policies must be supported by an “exceedingly persuasive justification,” one not “hypothesized or invented post hoc in response to litigation.” It directed Pechman to apply this test to the trans troops ban.

What “exceedingly persuasive justification” might lie behind this policy? The Trump administration asserts that transgender service members “undermine readiness,” “erode reasonable expectations of privacy,” and “impose disproportionate costs.” These claims are demonstrably false. We know that because trans troops could already serve openly when Trump announced his ban, and none of these problems arose. These excuses were cooked up by anti-LGBTQ advocates in response to litigation against the ban, precisely what intermediate scrutiny forbids. The Trump administration’s justifications cannot be “exceedingly persuasive” if they are ungrounded in reality, discredited by experts, and disproved by experience.

Thus, Pechman is almost certain to conclude that the ban remains unconstitutional. In the meantime, Karnoski establishes precedent in the 9th Circuit, confirming that transgender discrimination is subject to intermediate scrutiny. The court will now apply this test to other trans cases—including Arizona’s effort to exclude transition-related care from its state health plan. ACLU attorney Joshua Block noted on Friday that he’ll cite this development in his effort to block Arizona’s discriminatory exclusion in court. Karnoski may also compel the 9th Circuit to rule that prisons must provide transition-related care to inmates in a case currently pending before the court.

The 9th Circuit encompasses Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington. Following Karnoski, any anti-trans law passed by these states and territories must survive intermediate scrutiny. Few will be able to clear this high bar. Yes, the Supreme Court’s conservatives may ultimately issue a devastating decision writing transgender people out of the Constitution if and when these cases come back to SCOTUS. They could also undermine the logic of Karnoski in next term’s LGBTQ employment discrimination cases; anything is possible with this far-right bloc in control. But until then, trans people in a huge chunk of the country will enjoy heightened protections against unjust discrimination. </s> (Reuters) - A U.S. appeals court handed President Donald Trump a victory in his effort to ban most transgender people from the military, ordering a judge to reconsider her ruling against the policy, which the U.S. Supreme Court has allowed to take effect.

Demonstrators gather to protest U.S. President Donald Trump's announcement that he plans to reinstate a ban on transgender individuals from serving in any capacity in the U.S. military, at the White House in Washington, U.S. July 26, 2017. REUTERS/Jonathan Ernst - RC12D641E1E0

The 9th U.S. Circuit Court of Appeals on Friday set aside a ruling by U.S. District Judge Marsha Pechman in Seattle, which had said the ban likely violated the constitutional rights of transgender service members and recruits.

Without ruling on the merits, a three-judge panel of the San Francisco-based appeals court said Pechman did not give the military’s judgment enough deference, and ordered her to give it more.

That finding could strengthen Trump’s position, though the government still had the burden of justifying his policy.

Sharon McGowan, legal director of Lambda Legal, which represents opponents of the ban, said she believed the decision foreshadowed the eventual “vindication of the constitutional right of the transgender service members who have been harmed by this policy.”

Pechman is one of four federal judges to rule against Trump’s policy toward transgender military personnel.

In January, the Supreme Court, which has a 5-4 conservative majority, lifted lower court injunctions against the policy, while allowing legal challenges to continue.

Kelly Laco, a spokeswoman for the U.S. Department of Justice, said that agency will continue defending the ban, which lets the Pentagon “continue implementing a personnel policy it determined necessary to best defend our nation.”

Trump, a Republican, announced the transgender ban in July 2017, saying the military needed to focus on “decisive and overwhelming victory” without being burdened by the “tremendous medical costs and disruption” of having transgender personnel.

The move marked an about-face from a landmark policy announced in 2016 by Democratic President Barack Obama, which let transgender people serve without fear of being discharged, and receive medical care to transition genders.

In March 2018, Trump backed a revised policy from then-Defense Secretary Jim Mattis that disqualified most transgender people with a history of gender dysphoria from military service, and people who have undergone gender transition steps.

Medical experts define gender dysphoria as distress from the internal conflict between physical gender and gender identity.

The policy also allowed those military personnel diagnosed with gender dysphoria under Obama’s policy to serve according to their gender identity.

In April 2018, Pechman extended her injunction to the revised policy, finding no evidence that transgender troops reduced the military’s effectiveness, and saying the ban undermined the dignity of those troops.

On Friday, the appeals court said the revised policy “discriminates on the basis of transgender status” but was nevertheless “significantly different” from the 2017 ban.

“On the current record,” the court said, “a presumption of deference is owed, because the 2018 policy appears to have been the product of independent military judgment.”

The government, nevertheless, still bore the burden of showing the policy significantly furthered its important interests, “and that is not a trivial burden,” the court added.

Friday’s decision related to an August 2017 lawsuit by current and aspiring Army and Navy personnel, including one stationed overseas with nearly 20 years of experience. Washington state later joined the plaintiffs. </s> (Reuters) - A U.S. federal appeals court on Friday handed President Donald Trump a victory in his effort to ban most transgender people from the military, ordering a lower court judge to reconsider her ruling against the policy, which the U.S. Supreme Court later allowed to take effect.

The 9th U.S. Circuit Court of Appeals set aside a ruling by U.S. District Judge Marsha Pechman in Seattle, which said the ban likely violated the constitutional rights of transgender recruits and service members.

While not ruling on the case’s merits, a three-judge panel of the San Francisco-based appeals court said Pechman did not give the military’s judgment enough weight, and ordered her to give it more deference. That finding could strengthen Trump’s position on transgender troops going forward.

In January, the Supreme Court, which has a 5-4 conservative majority, lifted lower court injunctions that blocked the ban on constitutional grounds from going into effect, while challenges to its legality continued in lower courts.

The Supreme Court did not address the legality of the Republican president’s ban, which reversed a landmark 2016 policy of his Democratic predecessor, President Barack Obama.

That policy allowed transgender people for the first time to serve openly in the armed forces without fear of being discharged, and to receive medical care to transition genders.

Attorneys for the transgender service members who filed the lawsuit could not immediately be reached. A spokeswoman for the Department of Justice also could not be reached.

Pechman was one of four federal judges who ruled against the administration on the transgender troop ban, saying it likely violated the U.S. Constitution’s equal protection guarantee.

Trump had announced the ban in July 2017, and has said the old policy led to “tremendous medical costs and disruption.”

In March 2018, Trump backed a revised policy from then-Defense Secretary Jim Mattis that banned, in some circumstances, transgender people with gender dysphoria, or distress resulting from internal conflict between physical gender and gender identity.

Mattis’ policy also banned transgender people who seek or have undergone gender transition steps. But it allowed people diagnosed with gender dysphoria during the Obama policy to stay in the military and serve according to their gender identity.

In April 2018, Pechman extended her injunction to the revised policy, finding no evidence that transgender troops reduced the military’s effectiveness, and saying the ban undermined the dignity of those troops.

She also said the new policy would “force transgender service members to suppress the very characteristic that defines them as transgender in the first place.”

In Friday’s decision, the appeals court said the 2018 policy “discriminates on the basis of transgender status” but was nevertheless “significantly different” from the 2017 ban.

It said that when reconsidering the government’s request to lift her injunction, Pechman “must apply appropriate military deference to its evaluation.”

The lawsuit was filed in August 2017 on behalf of current and aspiring Army and Navy personnel, including one stationed overseas with nearly 20 years of experience. Washington state later joined the plaintiffs. </s> (Reuters) - A federal appeals court on Friday ordered a lower court judge to reconsider her ruling against U.S. President Donald Trump’s restrictions on transgender people serving in the military, a policy that had already been allowed to go into effect by the U.S. Supreme Court.

The San Francisco-based 9th U.S. Circuit Court of Appeals set aside a decision by a federal judge in Seattle, Washington, which said Trump’s policy likely violated the constitutional rights of transgender recruits and service members.

The three-judge appeals court panel said a request by the administration to lift an injunction issued by U.S. Judge Marsha Pechman must be reconsidered because an outright ban on transgender troops that Trump had announced in 2017 had been revised by a 2018 policy crafted by then-Defense Secretary Jim Mattis. The new policy was “significantly different,” the panel said.

In January, the Supreme Court lifted lower court injunctions blocking the transgender policy on constitutional grounds from going into effect while challenges to its legality continued in lower courts.

The high court did not resolve the underlying question of the legality of the Republican president’s plan, which reversed the landmark 2016 policy of his Democratic predecessor, President Barack Obama, to let transgender people serve openly in the armed forces for the first time and to receive medical care to transition genders. </s> June 14 (Reuters) - A federal appeals court on Friday ordered a lower court judge to reconsider her ruling against U.S. President Donald Trump's restrictions on transgender people from serving in the military, a policy that has already been allowed to go into effect by the U.S. Supreme Court.

The San Francisco-based 9th U.S. Circuit Court of Appeals set aside a decision by federal judge in Seattle, Washington, which said Trump's policy likely violated the constitutional rights of transgender recruits and service members. </s> WASHINGTON — The U.S. Supreme Court on Tuesday allowed the Trump administration to go ahead, for now, with its plan to ban transgender military service.

The court, without comment, granted a request from the Justice Department to allow the government to enforce the ban while challenges to the policy play out in the lower courts. The earliest the Supreme Court could act on the issue would be during its next term which begins in October.

In a July 2017 tweet, President Donald Trump announced that he would end a policy, begun during the Obama administration, that allows transgender men and women to serve openly and to have the government pay for sex-reassignment surgery.

"After consultation with my generals and military experts, please be advised that the United States government will not accept or allow transgender individuals to serve in any capacity," he said. "Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail."

Six months later, then-Defense Secretary James Mattis announced a revised policy that would allow transgender individuals in the military, provided that they served "in their biological sex" and did not seek gender-transition surgery.

Federal district court judges in California, Washington, DC, and Washington state issued orders blocking the policy nationwide. They said it likely amounted to unconstitutional discrimination and rejected the administration's claims that military readiness was at issue.

"There is absolutely no support for the claim that the ongoing service of transgender people would have any negative effect on the military at all. In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects," wrote Judge Colleen Kollar-Kotelly of the court in Washington, D.C.

The Justice Department went to the U.S. Supreme Court in November, urging the justices to take up the issue even before the cases had gone through the federal appeals courts — a request the Supreme Court grants very rarely. A month later, the government as a fall back asked the court to narrow the effect of the lower court rulings so that they applied only to the individuals who sued and not to the entire country.

The cases involve "a matter of imperative public importance: the authority of the U.S. military to determine who may serve in the nation's armed forces," Solicitor General Noel Francisco told the court. "The Secretary of Defense determined that individuals with a history of the medical condition gender dysphoria should be presumptively disqualified from military service, particularly if they have undergone the treatment of gender transition or seek to do so."

Opponents of the ban urged the court to leave the lower court orders in place that prevent enforcement of the Trump administration's proposed policy change.

The Supreme Court on Tuesday also opted to stay out of several other high-profile legal battles, which included taking no action on Tuesday on the future of the Deferred Action for Childhood Arrivals program, a move that requires the government to keep the program going for at least 10 more months.

The justices also took no action the issue of whether federal laws prohibiting sex discrimination on the job also apply to sexual orientation. Federal appeals courts are divided on the question.

Some have ruled that in passing the 1964 Civil Rights Act, Congress did not intend to include same-sex bias when it prohibited job discrimination on the basis of race, sex, and other characteristics. But other courts have said discriminating against someone because of sexual orientation is a form of sex discrimination. Civil rights groups say there's no need to change the law, arguing that it already bans discrimination on the basis of sexual orientation.

In other action Tuesday, the justices said they would not hear Indiana's effort to revive a state law intended to restrict access to abortion. Passed in 2016 and signed by then-governor Mike Pence, the law prohibited what the state called discriminatory abortions — those sought because of characteristics of the fetus, including gender, race, or diagnosis of Down syndrome or other defect.

Supporters of the measure said the law responded to medical developments that allow women to choose which child to bear, an option the state said was not contemplated at the time of the Roe v Wade decision. But Planned Parenthood said it was an unconstitutional restriction on abortion rights and lower courts agreed, preventing the law from taking effect.
The Ninth U.S. Circuit Court of Appeals, without ruling on the merits, orders U.S. District Judge Marsha Pechman (Seattle) to reconsider her ruling against the ban of most transgender people from the military, stating she did not give the military’s judgment enough deference.