Win for Transgender Troops & Midterm Maps

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1:55See complete disclosures at public.com slash disclosures. This is Bloomberg Law with June Grosso from Bloomberg Radio. Defense Secretary Pete Hegseth has made no secret of his disdain of transgender people serving in the military. No more pronouns, no more climate change obsession, no more emergency vaccine mandates, no more dudes in dresses. We're done with that. But now a federal appeals court has found that the administration's order banning transgender people in the military was based on unconstitutional animus and the bare desire to harm a politically unpopular group. And the D.C. Circuit Court affirmed a district court's order blocking the administration from expelling the transgender plaintiffs from the military.

2:55My guest is Shannon Mittner, the legal director of the National Center for LGBTQ Rights. He argued for the transgender troops at the D.C. Appellate Court. Shannon, will you start by explaining President Trump's executive order, which didn't specifically mention the word transgender, But I mean, explain what that order did. Almost immediately upon taking office, one of the very first things that President Trump did was once again, as he had done during his first term, ban transgender people from serving in the military. And it's an order that doesn't use the word transgender for the nefarious reason that this administration takes the view that transgender people aren't real, that they don't exist, that the belief that you're transgender is some kind of delusion or something like that.

3:40So it uses terms like people who assert a false gender identity or who have attempted to change their sex. The terminology is just reflective of this administration's animus towards transgender people. Your arguments at the court below and at the D.C. Circuit, were they based on equal protection? Tell us about your arguments. Yes, they were based upon a very longstanding, well-established equal protection doctrine, which is really simple, is that when a government policy is based on disapproval or dislike of a particular group of people, rather than some legitimate governmental interest, that violates the most basic precept of equal protection, that the law, you know, has to treat everyone equally.

4:26And obviously, a policy or a law that is premised on, well, we just don't like your kind of person, just fails that test in the most elemental way. And the administration never presented any evidence that transgender troops failed to meet military standards or perform poorly compared to other service members? I mean, was there any evidence supporting the administration's reasons for kicking out transgender troops? No, and it was really just such an extraordinary experience to be in, you know, the courtroom before the federal district judge, Judge Reyes, and have her asking the representatives for the military.

5:06So are these assertions that you're making that are made in this executive order that transgender people are just simply by definition, you know, undisciplined, selfish, lack the moral character to serve? Do you have any evidence to back that up? And, you know, the attorney had to answer honestly, again and again, no, no, this is an opinion. We don't have evidence to support it. What was their argument? They'd fall back on something called, you know, the military deference doctrine, just that the military can do whatever it likes. They are taking the very extreme position that courts don't have any role to play in scrutinizing military decisions.

5:45And I think we hear a lot of rhetoric like that from Secretary Hegseth. I mean, that's this administration's view, that the military should be, you know, above and beyond the law. The decision was two to one with an Obama appointee and a Clinton appointee in the majority, a Trump appointee in dissent. Tell us about the majority opinion. Well, the majority opinion just took a real careful look at what Judge Reyes had written and found in her decision. I mean, you know, there was extensive evidence presented below in front of her. I mean, we put on for the plaintiffs just so much evidence about their service records, which are exemplary.

6:21You know, the awards they've received, many of them been deployed in combat situations. We also put on declarations from former secretaries of the Army, Navy, Air Force, who remarkably stepped forward. You know, those folks don't really like to get involved in litigation, but I think they were so concerned by this policy. They provided us with statements that there was, to their knowledge, having been in office when transgender people were serving in the military, like no reason to discharge them, that they're meeting the same standards as everyone else. And then the government just put on effectively no evidence.

6:57So based on that, the majority opinion affirmed Judge Reyes's preliminary injunction stopping the government from kicking transgender people out of the military. So they said that Hegseth's policy was arbitrary and fueled by unconstitutional animus and the bare desire to harm a politically unpopular group. Can you point to where the court found that? Were there statements from Hegseth or was it just the general policy? Well, sadly, yeah, there's plenty of statements from Hegseth. They're painful to repeat, you know, but one of them, for example, was he was speaking to a group of service members in a public speech and said, you know, no more dudes in dresses.

7:41just a lot of really disparaging language about transgender people and a lot of statements that made it very clear that this is a politically motivated policy that's just openly based on dislike of transgender people and it's got nothing to do with whether these individuals can meet the same standards as everyone else which undisputedly they have been doing and can do. Justin Walker wrote a dissent. He's the Trump appointee. He said, but because the plaintiffs are service members, not civilians, and because we are judges, not generals, I respectfully dissent. He is falling back on that military deference doctrine and saying, look, I believe it's not my role as a judge to scrutinize what the military is doing.

8:28You know, and the problem with that is that you just can't reconcile that with the Supreme Court cases on this. I mean, the Supreme Court has over and over again very much scrutinized what the military does and has affirmed and reaffirmed the importance of doing that. And I'll tell you, one of the justices who's been most vocal about the need to do that is Justice Thomas. Clarence Thomas has been probably the most vehement proponent on the court of why it's so important for the court to stand up for the constitutional rights of individual service members when they are violated by military policy.

9:03And the decision is sort of a split decision. It distinguishes between transgender people who are currently serving in the military and those who want to join the military. Yes, that is true. The decision addresses what really is the primary and overwhelming injustice here, which is kicking out people who have served, in many cases, for years, who've served honorably, who've served ably, been recognized, promoted, awarded, just arbitrarily, summarily expelling those folks for no reason and with no kind of serious process or anything like that. They're just like, you're out because you're transgender.

9:46We're going to kick you out. That is the core injustice here, and that's what this appellate decision focused on. There is another issue about whether transgender people should be able to join the military and have the same opportunity to apply and join. And on that one, they sent that back. They sent that issue back to Judge Reyes with the instruction that she should do an independent analysis of the harms imposed by that part of the policy. She had kind of folded them all into just one category when she was looking at the harms. So they weren't disagreeing with her ultimate conclusion that that policy also violates the Constitution.

10:25But they're saying, hey, you need to go back and go through the process, the step of independently analyzing the harms imposed by not allowing transgender people to join the military. The government could ask the full circuit to hear the case on bank. But do you think it might skip that step, considering that Democrats outnumber Republicans on the D.C. circuit? Parties are always given that opportunity to ask the entire court to rehear a case if they wish to. You know, I don't know if the government will do that or not. I do expect they will, one way or the other, ask the U.S. Supreme Court to step in here and issue an emergency stay on its shadow docket.

11:07They've already indicated, in fact, that that's what they intend to do. I will say, though, that I am very optimistic that the Supreme Court will not do that. It would be pretty extraordinary if they did it in this situation because this ruling applies just to the 28 plaintiffs who are current transgender service members in this case. And it relies on a very well-established principle of law that a policy based on disapproval of a group of people is unconstitutional. So unlike some of the other cases where the court has stepped in and imposed an emergency stay, there really is no basis to do that here.

11:45So it only applies to the 28 service members? I mean, there are, what, about 1 ,000 estimated transgender people in the military? What about them? Yeah, maybe even a bit larger than that. Well, right now, this ruling applies only to the 28 named plaintiffs in this case. Two points about that, though. It does set a legal precedent so other transgender service members can bring their own case and rely on that precedent. And also, we are asking Judge Reyes to turn our action into a class action. And if she agrees to do that, then that will provide an opportunity for her ruling to apply to every other transgender service member.

12:26And that's pending in front of her. We have a hearing on our motion to do that. She'll be hearing that at the end of the month, June 30th. You mentioned the Supreme Court. So the Supreme Court did lift an order from a federal judge in Washington state that blocked the military from enforcing the ban. And the Supreme Court has been hostile, let's say, to transgender rights, LGBTQ rights in general. Why are you so confident that they won't reverse here? Well, you know, I would say they haven't been friendly to LGBT people lately. I will say that. Although, let's not forget, as recently as 2020, this is the court that ruled that federal sex discrimination law categorically protects transgender people from discrimination.

13:11It's the court that did recently uphold Tennessee's ban on medical care for transgender young people, but I will also note that the way the majority decision talked about those young people was very respectful. The Schilling decision is the one you're talking about where the court stepped in and did on its shadow docket issue an emergency stay of a similar preliminary injunction coming out of a federal district court in the state of Washington. There are two important differences, though. That emergency stay was issued just days before the court issued a very important decision disapproving of so-called nationwide injunctions.

13:46And the injunction in that case was a nationwide injunction. One of the judges on the panel that just decided the Talbot opinion that we're discussing today, Judge Rogers, voiced her opinion that that is why the Supreme Court issued that stay in Schilling is because it was a nationwide injunction. It also rested on a different equal protection theory that is more novel and has not yet been addressed by the U.S. Supreme Court, which is the level of scrutiny that should apply to discrimination against transgender people. The decision here, it's not a nationwide injunction, and it doesn't rest on any open question of equal protection law.

14:24It rests on a very settled principle, again, that the government can't just do something because it doesn't like a group of people. Coming up, we'll talk about the other cases challenging the transgender military ban and the Trump administration's attempt to get the medical records of transgender kids. I'm June Grosso, and you're listening to Bloomberg. Support for the show comes from Public. Lately, it feels like there are two types of investing platforms. Some are traditional brokerages that haven't changed much in decades, and others feel less like investing and more like a game. Public is positioned differently.

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17:28And the D.C. Circuit Court affirmed a district court's order blocking the administration from expelling the transgender plaintiffs from the military. I've been talking to Shannon Mittner, the legal director of the National Center for LGBTQ rights. He argued for the transgender plaintiffs at the D.C. appellate court. Shannon, were there any questions that you were asked during the arguments that stumped you? No, nothing that stumped me. But one thing that was very frustrating at the time is one of our key arguments is that the government sometimes says, oh, this is about transgender people. This is about people with a particular medical condition.

18:08But one of our key points is that that cannot possibly be the case because for every single other medical condition if somebody who's already in the military has a particular medical condition there is not one single other medical condition that results in automatic discharge in every single other case the military will go through an individualized assessment to see if that person can still do the job that's just the ordinary process so if this is really about transgender people having a medical condition and why not follow that same process here? But at the argument, the attorney for the military kept trying to assert that that wasn't true, that there are other conditions that result in automatic discharge.

18:49And we were like, no, your honors, there are not. And that really became quite a heated debate at that oral argument. It was so frustrating because the record on this is crystal clear. So I was so gratified to see that in the opinion, the judges obviously confirmed that, did their own research and confirmed that what we were saying was 100 % correct. And that is one of the primary foundations of the decision, that you can see this is based on bias and prejudice, because the military doesn't treat any other medical condition this way. What was the reaction of your clients when you told them about this victory?

19:28You know, of course, they feel very vindicated. They have already suffered so much harm. They and their families have suffered so much harm. This has been humiliating, incredibly stressful ordeal. I mean, these are folks who have devoted their entire professional lives to military service, and it's more than just a job. It's an entire way of life. Many of them come from military families. Having their ability to serve just cut off in the way that it has been has been excruciating for them. And it has also, of course, left them in just, you know, incredibly financially precarious situation. I mean, they feel very vindicated.

20:11And I think they know at this point, it's going to be very difficult to undo the practical and financial harm that they have suffered. But the principle here is very, very important to them. And it means a lot to have a federal appellate court, say to the world, what's happened to these people is extremely unfair. I mean, this is just a very important change in the status quo. We've been in kind of limbo for a year and a half now after winning the victory in the district court, then having it stayed. So to have this decision come down and really change that status quo and once again tell the government you cannot enforce this ban against these plaintiffs who have served so courageously.

20:56That means a lot. It's a very big turn of events with this litigation. And I was somewhat following these cases on transgender people in the military, but I wasn't clear on whether or not they were actually thrown out of the military while the case was pending. They are still in the military, yes. I think it's been confusing for a lot of people because of those early victories. And then, you know, the news was, hey, you know, these courts have held this ban as unconstitutional. constitutional, but then, of course, the Supreme Court stepped in and stayed it, issued the stay, and then we had a stay in our case as well.

21:29So, yeah, we've been in limbo, and the military has been able to move forward, but they have been so disorganized. This whole process has been so chaotic. It's been very unclear what is going to be the process for kicking these people out. They've just sort of held them in this torturous state of uncertainty, and they are just now, I I mean, here's the irony. They're just now starting to take very active steps to initiate separation proceedings. So this decision came at a very timely moment to put a stop to that, at least right now for these 28 plaintiffs and hopefully soon for other transgender service members as well.

22:04There are other challenges by transgender service members now that this decision is on the books. Are those cases unnecessary? necessary? No, I mean, really, right now, the only two that are still going are the one in Washington State, and that one is proceeding to trial. There's discovery happening there, and the plaintiffs in that case are seeking a permanent injunction. Their preliminary injunction has stayed. There's the Talbot case proceeding in Washington, D.C. Those are the only two cases. There was another case in New Jersey that was dismissed, and then there's another case challenging the denial of retirement benefits to some of these transgender service members.

22:42That is a separate case. It's actually a separate legal issue, but it's just another indication of how much hostility the government is directing at these folks. I mean, there's a group of transgender service members who were awarded retirement benefits because they earned them. They earned them. And then in just a completely inexplicable, punitive act, the military took those away for no reason. They can't even offer a reason. So there's a separate case that is challenging that denial of retirement benefits. And, Shannon, I wanted to ask you about a different issue. And that is the Trump administration's demands for confidential information about minors that have gotten gender-affirming care.

23:27And they're asking hospitals to hand over patient records, including birth dates, social security numbers and addresses. And the Justice Department has argued that the information is being sought to investigate possible fraud or unlawful off-label promotion of drugs. And last month, a federal judge quashed the Trump administration's subpoenas for confidential patient information from Rhode Island's largest hospital that provides gender-affirming care to minors. And they were looking for birthdates, Social Security numbers, and addresses of every patient who received transgender care over the past five years.

24:11one thing that's happening there that is just so outrageous and I don't think people realize it is that to my knowledge the federal government has never before I mean in the entire history of our country tried to use the criminal subpoena process to get people's private medical records and that is what they are now doing they got shut down they were using civil subpoenas and like we had eight different federal district courts say no you have no legitimate reason to be going after these private medical records. You cannot do that. They're like, fine, we'll drop the civil subpoenas. And then they popped up with criminal subpoenas and they secured in Texas and, you know, went to a very conservative district in the state of Texas, blatant form shopping to get criminal subpoenas against hospitals that have no connection with Texas whatsoever.

25:06Everything about it is so outrageous that it's obviously running around those eight court decisions, that they're going to Texas when that has no connection with any of these hospitals, and that they're using criminal, criminal subpoenas. And I mean, part of that is those are completely shrouded in secrecy. That's the grand jury process. It is notoriously super secret. These families don't even have a way to know that their children's medical records are being seized by the federal government. And then there's no limits on what the federal government can do with that information once it gets it.

25:41I mean, it's really a big deal. Why do you think they're looking for the medical records? I mean, to get the doctors who perform these procedures? They want to scare the hell out of people. They know there's no criminal law that's being violated here. They know that. This is like mafia-like tactics. I mean, this is just an attempt to scare the hell out of people, scare hospitals away from providing the care, scare doctors away from providing the care, and scare parents away from, you know, protecting their own children and supporting their own children. They want to make all of those groups, including parents, feel like they are in serious threat of being criminally prosecuted if they do anything to support a transgender child.