1
00:00:00,200 --> 00:00:02,920
Speaker 1: There wasn't much warning when President Trump announced on July

2
00:00:03,600 --> 00:00:06,160
Speaker 1: that he wanted to bar transgender people from serving in

3
00:00:06,200 --> 00:00:08,799
Speaker 1: the military. In typical Trump style, the news came in

4
00:00:08,840 --> 00:00:12,600
Speaker 1: a series of tweets that started at five am. The

5
00:00:12,640 --> 00:00:14,920
Speaker 1: abrupt nature of the announcement came back to bite Trump

6
00:00:14,960 --> 00:00:18,440
Speaker 1: this week. A federal judge on Monday blocked the administration

7
00:00:18,440 --> 00:00:21,280
Speaker 1: from implementing the ban, in part because of this seemingly

8
00:00:21,360 --> 00:00:24,960
Speaker 1: off the cough nature of Trump's decision. Judge Colleen Colarke

9
00:00:24,960 --> 00:00:28,319
Speaker 1: Itellian Washington said the decision lacked the quote formality or

10
00:00:28,400 --> 00:00:33,559
Speaker 1: deliberative processes that normally accompany such a major declaration. With

11
00:00:33,720 --> 00:00:36,120
Speaker 1: us to talk about the ruling, what it might mean,

12
00:00:36,159 --> 00:00:39,400
Speaker 1: whether it will stand, is Katherine Frankie. She's a professor

13
00:00:39,720 --> 00:00:43,839
Speaker 1: at Columbia Law School. And Rachel Van Landingham, a professor

14
00:00:43,880 --> 00:00:47,239
Speaker 1: at Southwestern Law School and a retired lieutenant colonel and

15
00:00:47,280 --> 00:00:52,880
Speaker 1: former judge advocate in the US Air Force Air Force. Katherine, Um,

16
00:00:52,920 --> 00:00:55,840
Speaker 1: there's a lot in this ruling at seventy six pages long,

17
00:00:55,920 --> 00:00:58,120
Speaker 1: but before we get into that, Um, can you just

18
00:00:58,200 --> 00:01:00,440
Speaker 1: lay out the state of play for us going into it?

19
00:01:01,000 --> 00:01:04,200
Speaker 1: What has been the policy with regard to transgender people

20
00:01:04,200 --> 00:01:07,560
Speaker 1: in the military, and what changes is Donald Trump trying

21
00:01:07,600 --> 00:01:11,039
Speaker 1: to implement. Well, thank you so much for having me

22
00:01:11,080 --> 00:01:15,279
Speaker 1: back on the show. UM. Under the Obama administration, beginning

23
00:01:15,280 --> 00:01:19,920
Speaker 1: in August of the Department of Defense began a study

24
00:01:20,200 --> 00:01:23,560
Speaker 1: UM to see whether there were reasons having to do

25
00:01:23,640 --> 00:01:27,280
Speaker 1: with unit cohesion or other reasons that were militarily related

26
00:01:27,800 --> 00:01:31,360
Speaker 1: to continue to ban transgender people from serving openly in

27
00:01:31,400 --> 00:01:36,560
Speaker 1: the military. And UM. That study ended in June, and

28
00:01:36,600 --> 00:01:40,880
Speaker 1: the Department issued a directive saying that UM open service

29
00:01:40,920 --> 00:01:45,720
Speaker 1: by transgender Americans was consistent with military readiness and with

30
00:01:45,760 --> 00:01:50,320
Speaker 1: strength through diversity. And it's UM that policy that President

31
00:01:50,360 --> 00:01:55,040
Speaker 1: Trump um uh flipping lee I would say with his tweets,

32
00:01:55,680 --> 00:01:58,600
Speaker 1: UM gestured that he was going to repeal UM uh

33
00:01:58,680 --> 00:02:02,160
Speaker 1: and is now the subject of this litigation. So Catherine,

34
00:02:02,720 --> 00:02:06,320
Speaker 1: the judge said that there is absolutely no support that's

35
00:02:06,320 --> 00:02:10,200
Speaker 1: a quote for the Trump administration's claim that transgender people

36
00:02:10,200 --> 00:02:13,359
Speaker 1: would have any negative effect on the military. What kind

37
00:02:13,360 --> 00:02:18,120
Speaker 1: of argument did the administration make to her? Uh, Well,

38
00:02:18,200 --> 00:02:20,680
Speaker 1: they made the kind of arguments that one normally sees

39
00:02:20,720 --> 00:02:24,639
Speaker 1: in military cases that one should differ for national security reasons.

40
00:02:24,720 --> 00:02:27,480
Speaker 1: And UM the for the reasons that we quite often

41
00:02:27,520 --> 00:02:32,040
Speaker 1: defer to military judgment UM, that the military knows best

42
00:02:32,080 --> 00:02:36,680
Speaker 1: about readiness and cohesion and etcetera. UM. And they actually

43
00:02:36,720 --> 00:02:41,320
Speaker 1: didn't base the change in policy on any studies, on

44
00:02:41,560 --> 00:02:44,640
Speaker 1: any demand from anyone from within the military that this

45
00:02:44,720 --> 00:02:48,640
Speaker 1: policy be changed. UM. They their argument was basically, we

46
00:02:48,680 --> 00:02:51,920
Speaker 1: should respect the authority of the commander in chief to

47
00:02:52,080 --> 00:02:55,919
Speaker 1: change the policy if he wishes to Rachel, what did

48
00:02:56,000 --> 00:02:59,880
Speaker 1: Judge Colarketelli say about those arguments? How did she get

49
00:02:59,880 --> 00:03:03,480
Speaker 1: a round this notion that generally we defer to the

50
00:03:03,520 --> 00:03:06,560
Speaker 1: commander in chief when we're talking about questions of national

51
00:03:06,639 --> 00:03:16,240
Speaker 1: security and military readiness. Rachel, Uh, Well, I can answer

52
00:03:16,280 --> 00:03:19,680
Speaker 1: that question, Okay, go ahead, Catherine. UM. What the court

53
00:03:19,800 --> 00:03:22,360
Speaker 1: was very concerned about was that there were kind of

54
00:03:22,520 --> 00:03:26,720
Speaker 1: generalizations about transgender people generally as a group, and that

55
00:03:26,800 --> 00:03:30,080
Speaker 1: there might be some possibility that they, um would be

56
00:03:30,120 --> 00:03:33,480
Speaker 1: mentally unstable and unable to serve. And the court said

57
00:03:33,520 --> 00:03:36,760
Speaker 1: that you just you can't engage in those sorts of

58
00:03:36,800 --> 00:03:40,800
Speaker 1: generalizations UM and be making change or changing policy so

59
00:03:40,920 --> 00:03:44,880
Speaker 1: quickly without having some sort of deliberative process. So the

60
00:03:44,920 --> 00:03:48,720
Speaker 1: court really summarily rejected every one of the government's arguments

61
00:03:48,720 --> 00:03:51,440
Speaker 1: in this case, Catherine, did the judge take a not

62
00:03:51,600 --> 00:03:54,560
Speaker 1: so subtle swipe at Trump when she wrote that the

63
00:03:54,680 --> 00:03:58,640
Speaker 1: changes in transgender policy were driven by a desire to

64
00:03:58,720 --> 00:04:04,000
Speaker 1: express disapprove full of transgender people generally. Well, it wasn't

65
00:04:04,080 --> 00:04:06,119
Speaker 1: very subtle with the court held because the Court said

66
00:04:06,160 --> 00:04:09,080
Speaker 1: that as this actually amounted to a form of sex discrimination,

67
00:04:09,280 --> 00:04:11,760
Speaker 1: not that it was just a swiper kind of gesture

68
00:04:11,760 --> 00:04:14,840
Speaker 1: of discrimination, but that it was discrimination, or at least

69
00:04:14,880 --> 00:04:19,200
Speaker 1: that the trans people who were challenging the policy had

70
00:04:19,240 --> 00:04:22,520
Speaker 1: shown they had a substantial likelihood of prevailing on that question,

71
00:04:22,560 --> 00:04:25,040
Speaker 1: of winning on that question. But what I thought was

72
00:04:25,080 --> 00:04:29,800
Speaker 1: amazing is the court's opinion actually reproduces screenshots of the

73
00:04:29,800 --> 00:04:34,279
Speaker 1: president's tweets, which is a fairly unusual thing to see

74
00:04:34,360 --> 00:04:37,719
Speaker 1: in a federal court opinion. We now do have Rachel

75
00:04:37,760 --> 00:04:41,600
Speaker 1: Van landing him with us. Uh, Rachel, what what sort

76
00:04:41,600 --> 00:04:43,960
Speaker 1: of jumped out at you in this opinion? If you

77
00:04:44,279 --> 00:04:46,640
Speaker 1: if you sort of picked out which part of it

78
00:04:46,680 --> 00:04:48,640
Speaker 1: is going to be the most important going forward? What?

79
00:04:48,640 --> 00:04:52,800
Speaker 1: What what would you point towards? Um? I think exactly

80
00:04:52,800 --> 00:04:55,279
Speaker 1: what your what your other guests was just was just

81
00:04:55,400 --> 00:04:58,159
Speaker 1: referring to um, the fact that this does seem like

82
00:04:58,400 --> 00:05:02,120
Speaker 1: the outright discrimination based on a class of individuals and

83
00:05:02,240 --> 00:05:09,440
Speaker 1: not on true military justifications. Catherine. Uh, in a moment,

84
00:05:09,440 --> 00:05:10,800
Speaker 1: I want to ask you a little more. You were

85
00:05:10,800 --> 00:05:14,440
Speaker 1: talking about the judge color Telly equating this with with

86
00:05:15,360 --> 00:05:19,160
Speaker 1: gender discrimination. Um, but tell us quickly, we only have

87
00:05:19,200 --> 00:05:22,320
Speaker 1: about thirty seconds right now. Um, where does she sort

88
00:05:22,320 --> 00:05:26,560
Speaker 1: of put put discrimination against transgender people in the panoply

89
00:05:26,600 --> 00:05:29,680
Speaker 1: of types of discrimination, Uh, that that courts deal with.

90
00:05:29,760 --> 00:05:32,640
Speaker 1: Is she was she treating it like gender discrimination or

91
00:05:32,680 --> 00:05:35,400
Speaker 1: something else. She was treating it as a form of

92
00:05:35,800 --> 00:05:39,719
Speaker 1: sex based discrimination. So, Um, discrimination against people on the

93
00:05:39,720 --> 00:05:44,280
Speaker 1: basis of their gender identity is a form of sex stereotyping.

94
00:05:44,320 --> 00:05:47,000
Speaker 1: The court held, and we've seen this in another number

95
00:05:47,040 --> 00:05:50,240
Speaker 1: of other trans cases and and other federal courts. We're

96
00:05:50,240 --> 00:05:52,599
Speaker 1: talking about a ruling yesterday by a federal judge in

97
00:05:52,640 --> 00:05:56,400
Speaker 1: Washington saying the Trump administration cannot implement its plan to

98
00:05:56,480 --> 00:05:59,960
Speaker 1: ban transgender people from serving in the military. Our guest

99
00:06:00,040 --> 00:06:04,320
Speaker 1: does Catherine Frankie. She's a professor at Columbia Law School. Catherine,

100
00:06:04,480 --> 00:06:08,719
Speaker 1: we're talking a moment ago about the judges reasoning and

101
00:06:08,760 --> 00:06:12,920
Speaker 1: how she said that this is a form of gender discrimination.

102
00:06:13,279 --> 00:06:16,720
Speaker 1: I'm wondering how groundbreaking you see this ruling as being.

103
00:06:16,800 --> 00:06:19,800
Speaker 1: So she is, as I understand it, essentially saying that

104
00:06:19,839 --> 00:06:21,320
Speaker 1: we're gonna be we the courts are going to be

105
00:06:21,360 --> 00:06:25,159
Speaker 1: a skeptical about discrimination against transgender people as we already

106
00:06:25,200 --> 00:06:29,359
Speaker 1: are about Uh, discrimination against people because of their gender,

107
00:06:29,400 --> 00:06:33,719
Speaker 1: are are because of their sexual orientation? Well, uh the

108
00:06:33,800 --> 00:06:35,560
Speaker 1: last bit. I was with you until the last bit.

109
00:06:36,000 --> 00:06:38,320
Speaker 1: So the courts have yet, The Supreme Court is not

110
00:06:38,400 --> 00:06:42,839
Speaker 1: yet held that sexual orientation based discrimination um should be

111
00:06:42,880 --> 00:06:46,760
Speaker 1: treated with um real suspicion under the Constitution. UM. There

112
00:06:46,760 --> 00:06:49,520
Speaker 1: are cases before the Court that that will raise that,

113
00:06:49,680 --> 00:06:52,359
Speaker 1: but we haven't gotten there yet on that issue. But

114
00:06:52,480 --> 00:06:55,400
Speaker 1: what the judge did do in them in this transmilitary

115
00:06:55,440 --> 00:07:00,880
Speaker 1: case is observed that discrimination against transgender people all is

116
00:07:00,920 --> 00:07:05,520
Speaker 1: the same kind of discrimination as discrimination against women. And

117
00:07:05,560 --> 00:07:09,320
Speaker 1: they built that. She built that holding on a idea

118
00:07:09,360 --> 00:07:13,560
Speaker 1: of what it means to actually be punished for not

119
00:07:13,680 --> 00:07:16,360
Speaker 1: adhering to stereotypes about what it means to be a

120
00:07:16,360 --> 00:07:18,720
Speaker 1: man and what it means to be a woman. So say,

121
00:07:18,760 --> 00:07:20,920
Speaker 1: if you're kind of a masculine woman or a more

122
00:07:21,000 --> 00:07:25,240
Speaker 1: feminine man, and you're discriminated against. That is roundly understood,

123
00:07:25,240 --> 00:07:28,600
Speaker 1: including by the Supreme Court, as amounting to sex discrimination.

124
00:07:29,040 --> 00:07:32,120
Speaker 1: Same thing here with trans folks. As she said, the

125
00:07:32,160 --> 00:07:37,200
Speaker 1: defining characteristic of a transgender person is that their inward identity,

126
00:07:37,240 --> 00:07:41,640
Speaker 1: behavior and responsibility or excuse me, and possibly their physical

127
00:07:41,720 --> 00:07:46,280
Speaker 1: characteristics do not conform to stereotypes of how an individual

128
00:07:46,680 --> 00:07:50,640
Speaker 1: of their assigned sex should feel, act, or look. So

129
00:07:50,640 --> 00:07:53,800
Speaker 1: it's not stereotype about real men and real women, Catherine.

130
00:07:53,840 --> 00:07:56,720
Speaker 1: She also said she was required to apply a greater

131
00:07:56,800 --> 00:08:00,000
Speaker 1: degree of scrutiny to the government's plan because it impacts

132
00:08:00,360 --> 00:08:04,000
Speaker 1: a class of Americans that has lacked political power. How

133
00:08:04,040 --> 00:08:07,440
Speaker 1: does that fit into the reasoning of other courts, Well,

134
00:08:07,480 --> 00:08:10,920
Speaker 1: that's the standard test we apply UM in a constitutional

135
00:08:10,960 --> 00:08:15,080
Speaker 1: context of whether the court should give extra scrutiny or

136
00:08:15,120 --> 00:08:18,240
Speaker 1: suspicion to a kind of classification made by the state.

137
00:08:18,480 --> 00:08:21,520
Speaker 1: So if the state treats one group of people differently

138
00:08:21,640 --> 00:08:24,800
Speaker 1: or worse than another group of people, UM, in some

139
00:08:24,880 --> 00:08:26,880
Speaker 1: cases the court will say, well, you better have a

140
00:08:27,000 --> 00:08:30,120
Speaker 1: very good reason for doing so. And in this context,

141
00:08:30,120 --> 00:08:33,720
Speaker 1: the Court said, m being transgender gives you that kind

142
00:08:33,760 --> 00:08:37,479
Speaker 1: of protection under the Constitution that if the state discriminates

143
00:08:37,520 --> 00:08:39,720
Speaker 1: against you, it better have a very good reason for

144
00:08:39,800 --> 00:08:44,000
Speaker 1: doing so. So it's treating transgender based discrimination the same

145
00:08:44,080 --> 00:08:46,680
Speaker 1: as we would treat discrimination against a man or a

146
00:08:46,679 --> 00:08:50,440
Speaker 1: woman as sex discrimination. Catherine Is. I read through this ruling,

147
00:08:50,760 --> 00:08:54,160
Speaker 1: the one issue I kept thinking about was the travel band. UH.

148
00:08:54,240 --> 00:08:56,760
Speaker 1: Tell me if you sort of agree with the parallel.

149
00:08:56,800 --> 00:08:59,800
Speaker 1: It feels like part of what the judge was saying

150
00:09:00,080 --> 00:09:03,480
Speaker 1: areas while this is an area where the president generally

151
00:09:03,520 --> 00:09:06,920
Speaker 1: has broad discretion, uh, in part because of the way

152
00:09:06,960 --> 00:09:10,599
Speaker 1: this was Uh, this was rolled out very abruptly and

153
00:09:10,840 --> 00:09:15,199
Speaker 1: without a whole lot of thought apparently behind it. I'm

154
00:09:15,200 --> 00:09:19,040
Speaker 1: going to block this policy, um and override that traditional

155
00:09:19,520 --> 00:09:21,760
Speaker 1: uh discretion that we would afford to the president in

156
00:09:21,800 --> 00:09:24,720
Speaker 1: this area. Well, you're exactly right. I think there are

157
00:09:24,720 --> 00:09:27,080
Speaker 1: two things going on in this case that are very

158
00:09:27,160 --> 00:09:30,640
Speaker 1: similar to the travel ban, what we colloquially refer to

159
00:09:30,720 --> 00:09:33,760
Speaker 1: as the Muslim ban. One is that this these seems

160
00:09:33,800 --> 00:09:36,520
Speaker 1: to be sort of policy being made at five am

161
00:09:36,600 --> 00:09:40,000
Speaker 1: in the morning, uh, shooting from the hip with a

162
00:09:40,000 --> 00:09:44,079
Speaker 1: Twitter account, rather than in consultation with experts and your

163
00:09:44,120 --> 00:09:47,440
Speaker 1: policy advisors and giving it the kind of care um

164
00:09:47,480 --> 00:09:50,720
Speaker 1: that these sorts of issues like military service or immigration

165
00:09:50,760 --> 00:09:53,520
Speaker 1: policies should deserve. And then the second thing is that

166
00:09:53,600 --> 00:09:58,200
Speaker 1: seems what's really motivating them is biased rather than reasoned judgment.

167
00:09:58,320 --> 00:10:02,720
Speaker 1: So that kind of overbroad stereotypes about Muslim people being

168
00:10:02,920 --> 00:10:06,760
Speaker 1: terrorists and dangerous um has been found to be what

169
00:10:06,840 --> 00:10:11,160
Speaker 1: was behind the Muslim ban, and same here overbroad stereotypes

170
00:10:11,200 --> 00:10:13,959
Speaker 1: about who transgender people are. It's just not the way

171
00:10:13,960 --> 00:10:17,160
Speaker 1: to run a government and to um issue very serious

172
00:10:17,200 --> 00:10:21,480
Speaker 1: policy and sacrifice the rights of citizens and others. Catherine,

173
00:10:21,480 --> 00:10:25,440
Speaker 1: there are other lawsuits in Seattle and Baltimore. What happens

174
00:10:25,440 --> 00:10:28,360
Speaker 1: in those lawsuits now that this judge has issued an

175
00:10:28,360 --> 00:10:33,600
Speaker 1: injunction pending trial and that trial has not been set, Well,

176
00:10:33,679 --> 00:10:36,439
Speaker 1: there are there are in this case, just as there

177
00:10:36,440 --> 00:10:40,120
Speaker 1: are in the Muslim band cases. UM cases perking percolating

178
00:10:40,200 --> 00:10:43,560
Speaker 1: up through a number of different courts, all raising basically

179
00:10:43,600 --> 00:10:46,880
Speaker 1: the same question. And a district court in the District

180
00:10:46,960 --> 00:10:50,440
Speaker 1: of Columbia, as this one could is, can issue a

181
00:10:50,559 --> 00:10:54,640
Speaker 1: nationwide ban or injunction against the policy to hold the

182
00:10:54,679 --> 00:10:57,280
Speaker 1: status quo in place. When the status quo is that

183
00:10:57,600 --> 00:11:00,200
Speaker 1: trans people have the right to serve and the right

184
00:11:00,240 --> 00:11:02,840
Speaker 1: to enlist in the military if there are otherwise eligible

185
00:11:02,920 --> 00:11:05,960
Speaker 1: to do so, and so it um. What it does

186
00:11:06,040 --> 00:11:09,840
Speaker 1: is it um uh keeps the government from enforcing this

187
00:11:09,880 --> 00:11:13,400
Speaker 1: new policy, and it certainly informs those other courts as

188
00:11:13,400 --> 00:11:16,720
Speaker 1: they're also deliberating on the underlying question of whether the

189
00:11:16,760 --> 00:11:20,280
Speaker 1: Constitution has actually been violated. Here, Catherine, only about thirty

190
00:11:20,360 --> 00:11:23,680
Speaker 1: seconds left. But as this case proceeds up the court system,

191
00:11:23,679 --> 00:11:26,720
Speaker 1: potentially to the Supreme Court, how confident are you that

192
00:11:26,720 --> 00:11:30,080
Speaker 1: that this judge's reasoning will be upheld. I think it's

193
00:11:30,120 --> 00:11:33,760
Speaker 1: an extremely strong opinion. Um. I don't think that President

194
00:11:33,760 --> 00:11:37,480
Speaker 1: Trump is doing himself any any favors by issuing policy

195
00:11:37,559 --> 00:11:40,800
Speaker 1: this way. And I think apart from the underlying merits

196
00:11:40,840 --> 00:11:44,000
Speaker 1: of what of whether the military can band transgender people

197
00:11:44,040 --> 00:11:46,719
Speaker 1: from serving, I think the courts are just outraged it

198
00:11:46,800 --> 00:11:49,880
Speaker 1: the way in which policy is being promulgated by this administration.

199
00:11:50,760 --> 00:11:53,840
Speaker 1: I want to thank Catherine Frankie, professor at Columbia Law School,

200
00:11:53,840 --> 00:11:55,920
Speaker 1: talking about the ruling this week but by a federal

201
00:11:55,960 --> 00:11:59,839
Speaker 1: judge in Washington blocking Donald Trump from banning transgender people

202
00:11:59,880 --> 00:12:02,640
Speaker 1: for serving in the U. S Military. Coming up on

203
00:12:02,679 --> 00:12:05,199
Speaker 1: Bloomberg Law. Depending on who you listen to, Donald Trump

204
00:12:05,240 --> 00:12:07,400
Speaker 1: is either rushing the stack the courts or Democrats are

205
00:12:07,440 --> 00:12:11,559
Speaker 1: obstructing qualified judicial nominees. Will dive into the war over

206
00:12:11,559 --> 00:12:15,360
Speaker 1: the judiciary, and we'll talk about the latest in the

207
00:12:15,440 --> 00:12:18,960
Speaker 1: investigation by Special Consul Robert Mueller that's coming up on

208
00:12:19,000 --> 00:12:21,439
Speaker 1: Bloomberg Law. This is Bloomberg