On Friday, the Ninth Circuit Court of Appeals declared that discrimination on the basis of someone’s transgender identity is sex-based discrimination. This marks an important, if qualified, step forward for transgender rights.

The decision came in the case of Karnoski v. Trump, one of four legal challenges to the Trump administration’s ban on transgender people serving in the military. President Donald Trump first announced his ban via a series of tweets in July 2017, declaring that after “consultation” with experts, the government would no longer accept or allow transgender people to serve “in any capacity” in the U.S. military. Trump cited, without evidence, the “tremendous medical costs and disruption” caused by transgender troops.

Trump’s military service ban is yet another reversal of an Obama-era policy permitting expanded rights for transgender people. It’s steeped in anti-trans bias and lacks any evidence of need, and the federal courts have taken notice. A few short months after Trump tweeted out his policy, no fewer than four federal courts had blocked the ban as unconstitutional, citing Trump’s tweets as proof of discriminatory intent and lack of legal justification.

In response to the injunctions blocking the ban, Trump ordered then-Secretary of Defense James Mattis to call a study group of military leaders and issue recommendations on how to implement the ban, which Mattis did in 2018. According to reporting by Slate, Vice President Mike Pence joined other notable anti-LGBTQ advocates like Tony Perkins and Ryan Anderson in helping to draft the Mattis policy. Mattis ultimately recommended the military bar transgender people from enlisting and encouraged the administration to discharge any enlisted members who wished to transition. Mattis suggested the administration grandfather in those service members who had come out under the Obama administration, but said that any transgender people should be allowed to enlist and serve only if they remain “in their biological sex.”

 

The “Mattis policy” was the administration’s attempts to reverse-engineer a legal justification for its transgender military service ban, plain and simple. Trump implemented the Mattis recommendations and then asked the federal courts to reconsider their injunctions based on the administration’s “revision” of its initial ban. The federal courts refused, so the administration took their request to the U.S. Supreme Court. In January 2019, the Court issued a 5-4 decision lifting two of those injunctions but ruling the legal challenges to the administration’s policy could continue. That allowed the Trump administration to begin implementing its policy while the legal challenges made their way through the appellate courts.

Friday’s opinion from the Ninth Circuit came in one of those cases, and the decision is a mixed bag for advocates. First, the Ninth Circuit vacated a court order maintaining one of the original preliminary injunctions against the ban and directed the district court that issued it to take another look. Given the action by the Roberts Court in January, that outcome was not unexpected: The injunction had effectively been lifted anyway. It still feels like a setback, though.

But there’s real reason to think that setback is only temporary. When directing the lower court to reconsider its analysis of the Trump administration’s ban, the federal appeals court offered some important guidance on how that new analysis should proceed.

First, the Ninth Circuit ruled  there is enough of a distinction between the transgender ban Trump first tweeted out in 2017 and the Mattis policy to warrant the district court treating them differently, despite any similarities. During the preliminary injunction proceedings, the lower court had treated the Mattis policy as merely an extension of the 2017 ban. That, the Ninth Circuit held, was a mistake.

The Ninth Circuit also reversed the district court’s application of strict scrutiny in blocking the ban, holding that heightened scrutiny—a slightly lower standard—should apply instead. The Trump administration had argued that rational basis, the lowest level of constitutional scrutiny, should apply, because the case involved judicial review of a military decision. The Ninth Circuit rejected this argument outright, instead holding that discrimination on the basis of transgender status is sex-based discrimination and therefore subject to heightened scrutiny.

That means that when the district court takes another look at the Trump transgender military service ban, the administration is going to have to show that its policy is supported by an “exceedingly persuasive justification.” Since the administration has no apparent justification for the policy other than anti-trans animus, I’m optimistic a new preliminary injunction blocking the ban will be issued in short order.

“This is a hugely positive development,” said Jennifer Levi, director of the Transgender Rights Project at GLBTQ Legal Advocates & Defenders, in a statement following the decision. “The Ninth Circuit recognized that the Mattis plan clearly targets transgender people, and that the government faces an uphill battle in justifying it.”

Friday’s decision also means that any anti-transgender policy coming from states covered by the Ninth Circuit Court of Appeals must meet this heightened standard. That includes any policies coming out of Arizona, Washington, Oregon, Alaska, Hawaii, Idaho, Nevada, Montana, Guam, and the Northern Mariana Islands. Friday’s decision will also affect other transgender rights cases pending before the Ninth Circuit, such as a challenge to a trans-inclusive Oregon school district or a case challenging Arizona’s policy of excluding transition-related care in insurance for state employees.

All this is good news for trans people. But the legal landscape remains unsettled.

Next term, the Supreme Court will consider whether or not an employee can be fired simply for being trans. Not surprisingly, the Trump administration has taken the position that they can be, and it’s possible there are five justices on the Supreme Court who agree. Such a decision, should it be issued, could undo much of the reasoning in Friday’s Karnoski opinion. But the Roberts Court hasn’t issued any anti-trans decision like that yet. Even if it does, Friday’s decision is still important, especially for transgender people in the conservative states covered by the Ninth Circuit. The appeals court made it clear Friday that a transgender person in Arizona has the same rights as a transgender person in California and that the neither the government, nor anyone else subject to civil rights laws, can invent reasons to discriminate against transgender people and expect the courts to go along with it.

It increasingly feels like there are little, if any, checks against the worst impulses of the Trump administration. But Friday’s decision recognizing the administration’s transgender military service ban for what it is—nothing more than naked animus dressed up as military policy—was a welcome reminder that not all legal resistance to the administration’s power grabs has failed.

The American Medical Association is taking a public stand to stem what it calls "the epidemic of violence against the transgender community, especially the amplified physical dangers faced by transgender people of color," as well as discrimination faced by the entire LGBTQ community.

The AMA's House of Delegates voted this month to adopt a plan to help bring national attention to this problem following an uptick in the number of fatal attacks against trans people. 

“According to available tracking, fatal anti-transgender violence in the U.S. is on the rise and most victims were black transgender women, said AMA Board Member S. Bobby Mukkamala, M.D., in a statement. While organizations like Human Rights Campaign and LGBTQ news media regularly report on the murders of trans Americans, mainstream news media too often report crimes without accurate information about a victim's gender identity, and local police have a long way to go to assist federal law enforcement in properly cataloguing hate crimes against trans and gender non-conforming individuals.

The physicians and medical students gathered at the AMA Annual Meeting in Chicago earlier this month adopted a new policy in hopes of calling attention to the disturbing pattern of violence toward transgender Americans, in particular trans women of color.

The policy outlines a plan to team-up with other medical organizations and advocates, using verified data on hate crimes against transgender individuals to educate members of the public, legislatures and law enforcement, and to highlight the disproportionate number fatal attacks on black transgender women.

The AMA will lobby law enforcement for consistent collection and reporting of data on hate crimes, to include accurate demographic information such as victim’s birth sex and gender identity, and for the creation of a central law enforcement database to collect data on reported hate crimes that correctly identifies a victim's identity.

In addition, the AMA plans to advocate for stronger policies regarding how law enforcement interacts with transgender individuals to stamp out bias and mistreatment and increase community trust.

Local, state, and federal agencies can also expect to hear from the AMA, about their efforts to increase LGBTQ patient access to mental health care and address the health disparities that members of the community too often experience.

The crisis that disproportionately impacts trans women of color is an intersectional one, according to Beverly Tillery, the executive director of the NYC Anti-Violence Project, a nonprofit which combats violence against the LGBTQ and HIV-positive communities through counseling and advocacy. Not only are members of this community trans, but they are also black, women and often poor.

“All of the discrimination results in people often living lives that are just more vulnerable to violence. You have a job that is more tenuous, you live in places that are more tenuous,” Tillery told Time Magazine. And in addition to all that, “people look at you and they don’t care about your existence and they don’t value your life.”

That's why the AMA House of Delegates, through this policy, is showing it does care. According to AMA literature, this policy-making body brings together an inclusive group of physicians, medical students and residents representing every state and medical field. Their work is to build national physician consensus on emerging issues in public health, science, ethics, business and government, and to continually provide safer, higher quality and more efficient care for patients and communities. 

Those interested in learning more about this issue can find more information and resources at HRC and through the National Center for Transgender Equality.

Dr. Mukkamala conceded that is part of the problem.

“The number of victims could be even higher due to underreporting and better data collection by law enforcement is needed to create strategies that will prevent anti-transgender violence," he said.

So far in 2019, the death toll stands at ten, and all of the victims were trans women of color. HRC tabulated 26 transgender victims of murder in 2018, but the number could easily be much higher, and advocates say the number of reported attacks has increased in recent years.

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.

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.

First, New York is one of only three states where gestational surrogacy is illegal. You read that right. In fact, many people are shocked to learn this – as Andy himself was when he first started looking into surrogacy. It’s nonsensical that an act of pure selflessness is illegal in New York in 2019.

If a gay couple or a couple struggling with fertility wants to start a family with the help of a gestational surrogate, they must travel out of state and deal with another state’s laws and oftentimes lesser healthcare systems. This comes at a huge cost to those pursuing surrogacy – legally, financially and otherwise – and is a barrier to family building that does not represent our values.

These were some of the challenges Andy faced when he decided to have a child through surrogacy, which was the only option available for him to have a biological child of his own.

New York sent a strong message about the important of families – and how they come in many colors, shapes and sizes – when we passed marriage equality during Governor Cuomo’s first year in office. But by banning gestational surrogacy, we are saying to the LGBTQ community and those who struggle with infertility: you can’t have a child in your own state.

New York State is a national leader in the fight for LGBTQ rights. We were the first big state to pass marriage equality. We enacted the Gender Expression Nondiscrimination Act – or GENDA – to protect transgender and gender nonconforming people from discrimination. We launched a bold campaign to end the AIDS epidemic. And every day we are fighting the Trump administration’s all-out war against trans and gender nonconforming people.

But New York State has discriminatory – and quite frankly repugnant – laws on our books that stifle the liberties of the LGBTQ community. We need to fix them now.

In 2019, no one should have to forfeit the joy of raising a child – not in an era when modern medicine is performing new miracles every day, and when we have reached a wide consensus that the only prerequisite to forming a family is love.

Earlier this year, Governor Cuomo signed into law the Reproductive Health Act, which says that women should have control of their own bodies. The surrogacy bill ensures that a gestational surrogate – the woman who wants to bring a child into this world for others – has the strongest protections in the country. It ensures they have access to legal counsel, adequate healthcare and other critical protections.

Practiced safely, ethically, and legally, surrogacy is about hope. It’s about the freedom to form a family and experience the joy of parenthood. It’s about ensuring that any of us can meet one of the most basic human needs—to pass on our wisdom, history, and culture to a new generation.

Second, and even more shocking, in New York State a person accused of a violent crime against an LGBTQ individual can use their own homophobia or transphobia as a legitimate legal defense.

It’s called the “gay and trans panic” defense. It’s repugnant, and it must be banned.

There have been too many horror stories of gay, trans and gender nonconforming people slain or attacked simply because of who they are. Under the “gay and trans panic” defense, their assailments are able to appeal for lesser sentences in the courtroom by putting the blame on a victim’s actual or perceived sexual orientation or gender identity.

The most infamous example was the murder of Matthew Shepard, a 21-year-old college student in Wyoming who was beaten to death by two men in 1998. The men attempted to use the “gay panic” defense to excuse their actions.

This defense is a noxious legal maneuver that has no place in our justice system. It is offensive to LGBTQ people everywhere and sends a dangerous message that hate crimes against gay and trans New Yorkers—or anyone for that matter—are somehow OK. They’re not.

The American Bar Association unanimously approved a resolution in 2013 calling on states to eliminate the gay and trans panic defenses through legislation. That was six years ago. New York has waited too long; the LGBTQ community has waited too long.

Three states have already prohibited the gay and trans panic defense. New York must be next. We know that once New York acts, other states will follow our lead.

The Legislature has seven days left in this year’s session. They must not leave Albany without righting these two wrongs. Legalizing gestational surrogacy and banning the “gay and trans panic” defense would send a clear message to the LGBTQ community and to all New Yorkers that we won’t settle for anything less than full equality under the law.

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