>>> THE SUPREME COURT ON
TUESDAY VOTED 5-4 IN FAVOR TO
ALLOW THE TRUMP ADMINISTRATION'S
TRANSGENDER MILITARY BAN TO GO
INTO EFFECT.
MEANWHILE, THE LOWER COURTS
CONTINUE TO DELIBERATE THE
LEGALITY OF THE BAN.
JENNIFER LEVI, A LAW PROFESSOR
AT WESTERN NEW ENGLAND
UNIVERSITY, IS INVOLVED IN THE
LEGAL CHALLENGE OF THE TRUMP
ADMINISTRATION OVER THIS ISSUE.
I ASKED LEVI FOR REACTION TO THE
DECISION.
>> WHAT WE KNOW IS THAT THE
COURT IS NOT GOING TO HEAR THE
CASE THIS TERM AND WE THINK
THAT'S A VERY GOOD THING BECAUSE
THIS IS A CASE THAT REALLY
REQUIRES A FULLER DEVELOPMENT OF
BOTH THE LEGAL AND FACTUAL
ISSUES BECAUSE WE FEEL VERY
CONFIDENT THAT A BAN AGAINST
TRANSGENDER PEOPLE WHO MEET
MILITARY CRITERIA CAN'T STAND,
IT SENT THE CASES BACK DOWN FOR
A FULLER CONSIDERATION.
UNFORTUNATELY, THE COURT ALSO
GREEN LIGHTED THE BAN TO BE PUT
INTO EFFECT IF THE GOVERNMENT
DECIDES TO DO SO WHILE THE
CHALLENGES TO IT ARE GOING
FORWARD.
>> AND SO I THINK THERE'S A LOT
OF CONFUSION FOR PEOPLE IN THE
GENERAL POPULATION AND I IMAGINE
ALSO FOR CURRENT MILITARY
MEMBERS FROM THE TRANSGENDER
COMMUNITY WHO ARE CURRENTLY
SERVING THIS COUNTRY.
LET'S START THERE.
HAVE YOU HEARD FROM ANY OF THOSE
FOLKS ABOUT HOW THEY'RE GOING
FORWARD RIGHT NOW?
>> YEAH, YEAH.
THERE IS UNDERSTANDABLE
CONFUSION BECAUSE OF HOW MANY
DIFFERENT THINGS ARE GOING
FORWARD AT THE SAME TIME.
BUT WE'VE DEFINITELY HEARD FROM
TRANSGENDER PEOPLE WHO ARE IN
ACTIVE SERVICE WHO ARE VERY
CONCERNED ABOUT THE FACT THAT
THIS BAN PUTS A TARGET ON THEIR
BACKS AND SO EVEN THOUGH THE
GOVERNMENT HAS SAID THAT THOSE
WHO HAVE RELIED ON THE OPEN
SERVICE POLICY ARE GOING TO BE
ALLOWED TO CONTINUE TO REMAIN IN
SERVICE, IT PUTS THEM IN HARM'S
WAY BECAUSE THEY'RE SERVING
UNDER A POLICY THAT SENDS A
MESSAGE TO OTHERS THAT THEY ARE
UNFIT TO SERVE AND IT'S NOT
TRUE.
I MEAN, THEY'VE BEEN DOING
TREMENDOUS JOBS PUTTING THEIR
LIVES ON THE LINE EVERY DAY.
>> THEY HAVE TO MEET ALL THE
SAME CRITERIA AS EVERYONE ELSE
WHO THEY'RE SERVING ALONGSIDE
WITH?
>> RIGHT.
>> SO DIFFERENT RULES.
>> NO DIFFERENT RULES AT ALL.
THEY HAVE SERVED MANY OF THEM
FOR DECADES, GONE ON ACTIVE
TOURS OF DUTY, AND I THINK THIS
COUNTRY REALLY OWES THEM OUR
GRATITUDE AND NOT THE SLAP IN
THE FACE THAT THIS
ADMINISTRATION HAS GIVEN THEM.
>> AND WHEN YOU SAY OPEN SERVICE
POLICY, YOU'RE REFERRING TO THE
DECISION THAT WAS MADE UNDER THE
OBAMA ADMINISTRATION IN 2016
THAT SAID IF YOU ARE CURRENTLY
TRANSGENDER AND SERVING IN THE
MILITARY, YOU MAY NOW DO SO
OPENLY, AND THEN IT ALSO SET UP
THE FRAMEWORK SAYING THAT COMING
IN 2017, IF YOU ARE A
TRANSGENDER PERSON WHO WANTS TO
ACTIVELY ENROLL IN THE MILITARY,
BUT YOU HAVEN'T DONE SO, YOU
WILL NOW BE ABLE TO DO THAT?
>> THAT'S RIGHT, AND BEFORE
PRESIDENT TRUMP REVERSED THAT
POLICY, WHICH IS WHAT I'M
REFERRING TO AS THE OPEN SERVICE
POLICY, TRANSGENDER PEOPLE WERE
ALLOWED TO ENLIST AND CURRENTLY
THAT IS STILL TRUE, BUT THAT'S
WHAT THIS ADMINISTRATION IS
TRYING TO TURN BACK THE CLOCK
ON.
>> SO I WANT TO GIVE PEOPLE THE
FRAMEWORK THAT ONE OF THE
ORGANIZATIONS THAT YOU'RE
CONNECTED TO, THE GLBTQ LEGAL
ADVOCATES AND DEFENDERS WAS
AMONG THE GROUPS THAT SUED WHEN
PRESIDENT TRUMP TWEETED THIS NEW
POLICY.
>> THAT'S RIGHT.
WE REPRESENT PLAINTIFFS BOTH IN
ACTIVE SERVICE AND THOSE WHO
SEEK TO ENLIST AND INDIVIDUALS
IN ROTC AND SERVICE ACADEMIES
WHO ARE CHALLENGING WHICH BAN IN
TWO SEPARATE CASES IN FEDERAL
DISTRICT COURTS.
>> HAVE YOU HEARD FROM PEOPLE
WHO WERE CONSIDERING ENLISTING
IN THE MILITARY WHO HAVE NOW
SAID NO THANKS.
>> YEAH, WE ABSOLUTELY HAVE AND
IT'S UNFORTUNATE BECAUSE THEY
ARE READY TO SERVE THEIR COUNTRY
AND WE ALL DESERVE THE MILITARY
THAT IS INCLUSIVE OF EVERYBODY
WHO MEETS THOSE CRITERION, AND
IT'S REALLY UNFORTUNATE THAT
THERE ARE PEOPLE SAYING I'M
GOING TO STEP AWAY BECAUSE I'M
CONCERNED THAT MY FUTURE WOULD
BE NEGATIVELY IMPACTED IF AND
WHEN THIS BAN GOES FULLY INTO
EFFECT.
>> YOU'RE THINKING OF THIS AS A
NEW JOB OPPORTUNITY, YOU GO
THROUGH THE RIGORS OF WHATEVER
IT WOULD BE TO SERVE IN THE
BRANCH THAT YOU'RE IN, AND THEN
POSSIBLY IT COULD BE MONTHS,
YEARS DOWN THE ROAD, I DON'T
KNOW DEPENDING ON THE TIME TABLE
THIS GETS ADJUDICATED, YOU COULD
POSSIBLY BE KICKED OUT, IS THAT
A POSSIBILITY HERE?
>> IT IS A POSSIBILITY.
IT IS A POSSIBILITY.
AND ALSO PEOPLE MOVE ACROSS THE
COUNTRY, THEY MAKE ARRANGEMENTS
FOR THEIR FAMILIES.
THEY DEPEND ON THEIR, YOU KNOW,
FUTURE CAREERS IN THE MILITARY
AND SO YOU KNOW, IF THE RUG GETS
PULLED OUT FROM UNDER THEM IT
REALLY UPENDS PEOPLE'S LIVES AND
THAT'S ABSOLUTELY A POSSIBILITY.
THAT'S WHAT THE TRUMP
ADMINISTRATION IS PROPOSING TO
DO HERE.
>> AND I WANT TO SAY FOR THE
DEPARTMENT OF JUSTICE PART THERE
WAS A SPOKESWOMAN THAT CAME OUT
THIS WEEK AFTER THE DECISION
CAME DOWN FROM THE COURT AND SHE
SAID THAT THE STATE DEPARTMENT
WAS PLEASED WITH THE COURT'S
DECISION AND IN PART THAT THE
LOWER COURT REGULATION HAD
FORCED THE MILITARY TO QUOTE
"MAINTAIN A PRIOR POLICY THAT
POSES A RISK TO MILITARY
EFFECTIVENESS."
WHAT'S YOUR REACTION?
>> IT MAKES NO SENSE.
AS WE JUST SAID TRANSGENDER
PEOPLE HAVE TO MEET EVERY
STANDARD FOR SERVICE THAT ANYONE
ELSE HAS TO MEET AND SO ALL THE
BAN SERVES TO DO IS TO EXCLUDE
PEOPLE WHO CAN MEET THOSE
CRITERIA.
THERE'S ABSOLUTELY NO
CORRELATION BETWEEN BEING
TRANSGENDER AND A LACK OF
FITNESS TO SERVE.
IT'S JUST THE CONTRARY AND THE
PLAINTIFFS IN THIS CASE HAVE
DEMONSTRATED THAT BY THEIR
DECADES OF SERVICE.
>> ANY THOUGHTS ON YOUR PART
ABOUT WHY THE COURT DIDN'T
DECIDE TO FULLY DELIBERATE THIS
AT THIS POINT AND MAKE THE
DECISION IT MADE IN THE WAY THAT
IT DID?
>> IT'S PREMATURE.
I THINK THIS COURT FELT THAT THE
GOVERNMENT WAS SEEKING TO
LEAPFROG THE ORDINARY APPELLATE
PROCESS AND THAT'S IN PLACE TO
REALLY BRING OUT FULLY THE LEGAL
ARGUMENTS, THE FACTS THAT ARE
RELEVANT TO THE CASE AND IT
WOULD HAVE BEEN HIGHLY UNUSUAL
FOR THE SUPREME COURT TO RESOLVE
A CASE THAT WAS IN SUCH
PRELIMINARY CASES.
>> WHAT HAPPENS WITH THOSE LOWER
COURTS THAT STILL ARE LOOKING AT
THIS ISSUE?
>> THOSE CASES WILL CONTINUE ON
THE MERITS, THE DECISION THIS
WEEK FROM THE SUPREME COURT DID
NOT SAY ANYTHING ABOUT THE
CHALLENGE TO THE BAN ON ITS
MERITS.
AND SO WE ARE LOOKING FORWARD TO
REALLY FULLY DEVELOPING THE
FACTS THAT WE THINK WILL
DEMONSTRATE TO THE COURTS THAT
THERE'S ABSOLUTELY NO
JUSTIFICATION FOR EXCLUDING
TRANSGENDER PEOPLE ON THE BASIS
OF THEIR INABILITY TO SERVE,
PARTICULARLY WHERE THEY HAVE TO
MEET ALL OF THE CRITERIA THAT
EVERYONE ELSE DOES.
>> HOW ABOUT A TIME TABLE FOR
THE FACT THAT THESE ARE
HAPPENING AT THAT LOWER COURT
LEVEL?
>> VERY DIFFICULT TO PREDICT.
YOU KNOW, THERE ARE FURTHER
PROCEEDINGS THAT WILL BE IN
PLACE TO BOTH DRAW OUT THE FACTS
THAT THE GOVERNMENT SAYS IT'S
RELYING ON.
THERE WILL BE A CHANCE FOR THE
PLAINTIFFS TO PUT FORWARD THEIR
EXPERTS AND THEIR DEMONSTRATION
OF THE FACTS AND IT'S VERY
DIFFICULTY TO PREDICT THE TIMING
OF THAT, BUT YOU'LL SEE SOME
PRETTY SIGNIFICANT DEVELOPMENTS
OVER THE NEXT FOUR TO SIX
MONTHS.
>> AND SO OVER THE NEXT FOUR TO
SIX MONTHS AS YOU SAY WHILE THAT
PLAYS OUT, IF IT WERE TO MOVE
FORWARD AND GO BACK TO THE SJC
GIVEN THAT IT WAS A 5-4 RULING
WITH FIVE OF THE MORE
CONSERVATIVE MEMBERS RULING IN
FAVOR OF LETTING THE BAN GO
FORWARD, AND FOUR SAYING NO,
DOES THAT SORT OF TIP THE HAND
IN FAVOR OF THE FACT THAT
EVENTUALLY, THIS BAN MIGHT GO
FORWARD?
>> I DON'T READ THAT INTO THE
NARROW DECISION THAT WAS ISSUED
THIS WEEK AT ALL.
THERE WAS NOTHING IN THAT
DECISION THAT SUGGESTED THAT THE
COURT THINKS THE GOVERNMENT'S
JUSTIFICATIONS FOR BANNING
TRANSGENDER PEOPLE WILL STAND,
BUT WHAT WE DO KNOW IS THAT THE
COURT IS NOT GOING TO HEAR THE
CASE THIS TERM.
AND SO THAT MEANS, YOU KNOW,
IT'S UNLIKELY THAT THERE WOULD
BE CONSIDERATION BY THE NINTH
DISTRICT SUPREME COURT IN THE
NEAR FUTURE.
>> GREAT.
MORE TIME FOR YOU TO GET YOUR
CASE IN ORDER I IMAGINE ALSO?
>> ABSOLUTELY, BUT I DO WANT TO
HIGHLIGHT THE FACT THAT IT DOES
MEAN THAT THE GOVERNMENT COULD
DECIDE RIGHT NOW TO EXCLUDE
TRANSGENDER PEOPLE FROM
ENLISTING AND THAT IS A BAD
THING, IT'S A BAD THING --
>> EVEN WHILE THE LOWER COURT
CASES ARE GOING ON?
>> THAT'S RIGHT, THAT'S RIGHT,
THAT'S WHAT THE SUPREME COURT
DECISION THIS WEEK SAID THAT IN
THE INTERIM WHILE THE CASE IS
BEING CONSIDERED THAT THE BAN
MAY BE PUT INTO EFFECT BY THE
GOVERNMENT.
AND WHAT'S REALLY BAD HERE IS
THAT MILITARY POLICY IS BEING
SHIFTED DRAMATICALLY
BACK-AND-FORTH OVER A SHORT
PERIOD OF TIME AND THAT'S NOT
GOOD FOR ANY OF US, IT'S NOT
GOOD FOR THE COUNTRY, AND IT'S
BAD ULTIMATELY FOR NATIONAL
SECURITY.
