MILITARY
Pentagon Disclosure Ordered in Trans Military Case
US District Judge Marsha J. Pechman advances discovery for those challenging ban
BY ARTHUR S. LEONARD
Although the Supreme Court gave the
green light for the military to impose
its transgender service ban in April
while lawsuits challenging the policy
continued, those lawsuits have continued.
Attempts by those challenging the policy to
obtain the information necessary to prove their
constitutional claims have been frustrating, as
the Trump administration has treated discovery
in the four pending cases just like it treated
the House of Representative’s impeachment
investigation. From the beginning, the Justice
Department has argued that almost all the information
sought by the plaintiffs is covered by
some sort of privilege, either “executive” or “deliberative,”
that shields it from disclosure.
But on December 18, US District Judge Marsha
J. Pechman in Seattle issued the latest of
several rulings concerning the government’s
assertion of “deliberate process privilege” over
about 35,000 documents that have been identifi
ed by the plaintiffs.
The main focus of discovery at this point is
the plaintiffs’ attempt to get behind the veil of
secrecy drawn by the government over how the
policy was adopted. First announced as a total
ban by President Donald Trump in his infamous
July 2017 tweets, the policy implemented
in April 2019 refl ected changes from that approach.
Some of those changes clearly came in
response to the lawsuits quickly fi led against
the policy and undoubtedly refl ected the Justice
Department’s reaction to preliminary injunctions
issued in all four cases against the
original ban Trump announced.
The policy adopted this past April was based
on a plan that then-Defense Secretary James
Mattis proposed in February 2018 developed
by a “panel of experts.” The report issued by
that panel did not identify its members and its
sources of data were referred to only in general
terms — and it read very much like articles in
conservative journals written in opposition to
transgender rights. The report’s conclusions
were that service by trans individuals “would
impede readiness, limit deployability, and burden
the military with additional costs.”
In order to sustain their challenge, the plaintiffs
must prove that the report’s conclusions are
not supported by any serious study or sound
military judgment, but rather are the result of
politics and ideology. To do so, of course, they
must have access to details on how the panel
reached its determination and be able to depose
the experts. Here is where the government’s
privilege arguments come into play.
Courts generally recognize that the president
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Judge Marsha J. Pechman has ordered the US government to begin
producing documents sought in a constitutional challenge to the
transgender military ban before her in Seattle federal district court.
is entitled to confer in confi dence with Executive
Branch offi cers and others in order to develop
policy, but those rights are not absolute.
The most famous example of a court-ordered
breach of this confi dentiality came during the
impeachment investigations into Richard Nixon
in the mid-1970s, when the Supreme Court
unanimously ordered him to surrender tape recordings
of conversations with his advisors in
the Oval Offi ce. Still, courts have also recognized
a similar “deliberative process privilege”
to policymakers in the Executive Branch generally
to allow for free and wide-ranging discussion
prior to adopting formal policies.
In the four pending transgender service
cases, several of the district judges, including
Pechman — drawing on precedents holding
that privilege must give way when the central
issue in a serious constitutional case depends
on proof of policymakers’ motivations — have
concluded that the plaintiffs have discovery
rights.
When the government appealed Pechman’s
earlier discovery orders, the Ninth Circuit Court
of Appeals agreed with her both that heightened
scrutiny of the government’s policy is appropriate
on equal protection grounds and that some
government privilege claims may have to fall if
appropriate discovery needs warrant that. The
Ninth Circuit, however, did not approve a broad
discovery order, instead requiring specifi c analysis
of narrowly defi ned groups of documents —
what it called a “more granular” approach.
Following a December 10 meeting between
attorneys for the plaintiffs and the government
on fi ve specifi c discovery requests, Pechman issued
her December 18 ruling. The government
must turn over most of the information requested,
identify members of the Pentagon’s expert
panel as well as those who provided it with information,
and turn over successive drafts of
the policy eventually approved by Mattis and
forwarded to Trump.
This doesn’t mean that the information is
necessarily going to become public right away.
“To mitigate any potential chilling effect upon
the future deliberations of government actors,”
Pechman wrote, “these documents shall be
produced for attorneys’ eyes only.”
By December 20, the government had already
begun to work on complying with Pechman’s
order. And both parties will meet with the judge
again on February 3 to assess a second round
of documents requested by the plaintiffs.
The team of lawyers representing the plaintiffs
is led by attorneys from Lambda Legal and
cooperating law fi rms that volunteered to assist
in the lawsuit.
Similar discovery battles and orders are playing
out in the three other cases. It seems possible
that by sometime in 2020, the litigation
will have advanced to the stage where courts
will either consider motions for summary judgment
or begin hearings where witnesses will be
examined.
Still, it’s possible that a fi nal ruling on the
merits will never occur in any of these cases.
If Trump is not re-elected, a new Democratic
president is likely to restore the open service
policy adopted late in the Obama administration.
And, if the president is re-elected, it is entirely
possible he might be amenable to a negotiated
settlement if he concludes he no longer
has to curry favor with the parts of his base he
has been pandering to with this policy.
Meanwhile, the Supreme Court’s eventual
ruling this winter or spring in the pending Harris
Funeral Homes case, concerning whether
discrimination based on gender identity is a
form of sex discrimination, may affect the government’s
willingness to compromise its position
in the transgender military cases.
January 2 - January 15, 2 4 020 | GayCityNews.com
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