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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. It may surprise you,

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Speaker 1: especially after the Supreme Court's ruling, but President Trump's transgender

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Speaker 1: military band is still on hold in no uncertain terms

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Speaker 1: of federal judge in d C has said that the

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Speaker 1: nationwide block on the band which her court issued is

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Speaker 1: still in effect. Joining me is Steve Sanders, professor at

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Speaker 1: Indiana University's Mars School of Law. Steve, three other injunctions

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Speaker 1: have been lifted, and the d C Circuit Court ruled

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Speaker 1: on this injunction. Sort the facts out a little for

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Speaker 1: us here. Sure, you know, at first Gland, some of

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Speaker 1: the reporting of this story might lead you to believe

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Speaker 1: that there's this one renegade federal district judge out there

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Speaker 1: who's sort of insisting on keeping the ban in place

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Speaker 1: and possibly even defying the Supreme Court. That's actually not

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Speaker 1: the case at all. What this really simply comes down

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Speaker 1: to is that, as a matter of the rule of law.

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Speaker 1: Our courts follow certain established procedures and schedules and so forth.

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Speaker 1: So just briefly, four separate lawsuits were filed in the

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Speaker 1: wake of President Trump's announcement that transgender people would be

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Speaker 1: banned from the military. Two of those were before the

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Speaker 1: Supreme Court on preliminary injunctions. Cases hadn't been fully briefed

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Speaker 1: or fully developed, but as a preliminary matter, should the

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Speaker 1: band be put in place, should go forward or should

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Speaker 1: it be put on hold? Supreme Court said it can

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Speaker 1: go forward, pending the litigation in the two cases that

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Speaker 1: were brought to it. Another federal district judge in Maryland,

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Speaker 1: basically seeing that handwriting on the wall, dissolved his preliminary injunction. Um.

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Speaker 1: And what's happening here is in Washington, d See, the

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Speaker 1: Federal Court of Appeals did rule some weeks ago that

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Speaker 1: a lower federal judges injunction also should be dissolved. That's

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Speaker 1: the one we're talking about here too. Really, all the

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Speaker 1: federal district judge was saying in this announcement she made

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Speaker 1: a day or two ago, was the Court of Appeals

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Speaker 1: actually gave the parties until March twenty nine, one week

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Speaker 1: from today to ask it to reconsider its decision. That's

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Speaker 1: an established part of the appellate process. Even after an

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Speaker 1: appeals panel rules, its ruling doesn't actually take effect or

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Speaker 1: become final until a certain period of time has expired,

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Speaker 1: when the parties can come back to it and ask

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Speaker 1: it to reconsider or ask that a larger panel of

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Speaker 1: judges on that court. Here the case that happens March

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Speaker 1: twenty nine, um that period expires now. I think we

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Speaker 1: can probably imagine, given the Supreme Court's ruling that even

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Speaker 1: if the plaintiffs in these cases, the people who are

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Speaker 1: rep presenting the transgender military members, do ask the d C.

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Speaker 1: Circuit to reconsider, they'll probably say no. At that point,

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Speaker 1: the judges injunction will dissolve, and the Trump administration will

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Speaker 1: be clear to begin implementing its policy. I would simply

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Speaker 1: say one last thing. All of these cases and rulings

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Speaker 1: so far have involved what are called preliminary injunctions. Litigation

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Speaker 1: goes forward on the merits, briefing and oral argument will

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Speaker 1: still take place in these cases, so this is not

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Speaker 1: the end of the matter. It just basically means the

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Speaker 1: policy can go forward pending the litigation that continues let's

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Speaker 1: talk a little about the Supreme Court opinion. It was

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Speaker 1: a five to four vote down partisan lines, and though

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Speaker 1: it was only on the preliminary injunction, it let the

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Speaker 1: military band take effect. So is this hinting that if

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Speaker 1: this comes before the Court again, the justices all simately

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Speaker 1: will uphold the restrictions of a military transgender ban. It

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Speaker 1: is possible to read that into this kind of decision

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Speaker 1: to a certain extent. On that kind of ruling, the

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Speaker 1: court and none of the justices issued opinions, we simply

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Speaker 1: know that four of the justices, the justices that are

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Speaker 1: considered more moderate or more progressive, would have kept the

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Speaker 1: stay on the policy in place. When courts decide on

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Speaker 1: these preliminary injunctions, they're supposed to balance a number of factors.

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Speaker 1: What would be the hardship here to the government if

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Speaker 1: it had to keep the policy on hold, What would

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Speaker 1: be the hardship and the irreparable harm to the plaintiffs

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Speaker 1: who are denied the ability to enlist or to continue serving.

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Speaker 1: And finally, one part of the calculation is supposed to

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Speaker 1: be at this point, how do we evaluate who's likely

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Speaker 1: to prevail ultimately after the full round of litigation. So

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Speaker 1: to the extent that's a factor, you could imagine that

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Speaker 1: the justices of the Supreme Court of them jority, we're saying,

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Speaker 1: you know, we're not making a final decision, but from

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Speaker 1: what we see right now, we think there's a decent

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Speaker 1: chance that we will end up ruling in favor of

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Speaker 1: the government on the merits. You know, we can't say

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Speaker 1: that's definitely what's going on, but it's undeniably part of

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Speaker 1: the calculation. So the cases are now going forward to

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Speaker 1: litigation and perhaps two trials. What are the issues? The

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Speaker 1: lead issue in these cases is equal protection under the

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Speaker 1: Fourteenth Amendment equal protection Clause, which prevents the government from

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Speaker 1: discriminating in certain areas. Do these bands constitute unconstitutional discrimination

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Speaker 1: on the basis of sex or separately, on the basis

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Speaker 1: of gender identity. We know that sex discrimination gets a

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Speaker 1: higher and more skeptical level of review under the Constitution.

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Speaker 1: Whether gender identity discrimination is the same thing or gets

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Speaker 1: the same kind of heightened review is an open question.

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Speaker 1: Two more claims these cases say that under the Constitute's

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Speaker 1: protection for liberty, the government may not deny liberty without

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Speaker 1: due process. These cases deny people's autonomy self expression dignity,

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Speaker 1: and finally, at least some of the cases included a

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Speaker 1: First Amendment argument that the transgender military members ability to

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Speaker 1: express their own gender, identity and personality is hindered by

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Speaker 1: this policy. So steve to an average person looking at this,

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Speaker 1: not a lawyer. You look at the facts and it

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Speaker 1: seems as if there's a good case for discrimination. Do

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Speaker 1: you agree or is it a tough case? Well, so,

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Speaker 1: transgender people were banned from the military for a long time,

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Speaker 1: ever since the phenomenon of persons being transgender was known.

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Speaker 1: The Obama administration studied the question, decided that was no

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Speaker 1: longer justified, and began to remove the policy. The Trump

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Speaker 1: administration has put it back in place. I think how

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Speaker 1: one answers the question you've posed depends on how you

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Speaker 1: evaluate the reasoning that the government has put forward and

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Speaker 1: whether it is simply a pretext for wanting to to

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Speaker 1: discriminate against this group, or whether there remain solid reasons

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Speaker 1: of military policy and military budget and military readiness which

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Speaker 1: justify the ban. My view, I think increasingly people are

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Speaker 1: coming to think that the ban is not justified, that

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Speaker 1: the expense or the impact on readiness the transgender members

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Speaker 1: of the service has is simply overblown, and this is

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Speaker 1: sort of a pretext for more of a political purpose

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Speaker 1: that the president may have. President Trump put this into

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Speaker 1: effect by tweet transgender we're serving in the military. There

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Speaker 1: were no problems that were specified, but he tweeted that

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Speaker 1: it is going to change. Will that come into play

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Speaker 1: in the trials? How that happened that there was no

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Speaker 1: military guidance on his tweet? I think yes. I think

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Speaker 1: it will be pointed to as evidence that this was

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Speaker 1: not well thought out and we've had to sort of

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Speaker 1: reverse engineer a justification for it, because this was something

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Speaker 1: the president just out of the political instincts apparently wanted

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Speaker 1: to do. All right, Thanks so much, Steve. As always

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Speaker 1: that Steve Sanders. He's a professor at Indiana University's Mars

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Speaker 1: School of Law. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg