A federal judge has ruled against the Trump administration in litigation challenging the transgender military ban, ordering the Defense Department to turn over documents it had previously on the policy withheld on the basis they were predecisional and deliberative before the restriction went into effect.
U.S. District Judge Marsha Pechman in Washington State, a Clinton appointee, issued an order Friday requiring the Trump administration to hand over documents requested as part of the discovery process for the lawsuit by October 5.
“This matter comes before the court upon defendants’ recent submission of documents for in camera review, filed in response to the court’s recent orders on defendants’ assertion of the deliberative process privilege,” Pechman writes. “After careful examination of each document submitted for in camera review, the court finds that the documents do not fall within the proper scope of the deliberative process privilege and orders defendants to produce the documents by October 5.”
The lawsuit, Karnowski v. Trump, was filed in 2017 by the LGBTQ group Lambda Legal and the group now known as the Modern Military Association of America on behalf of various plaintiffs, including transgender military service members and the Human Rights Campaign, against the ban.
Peter Perkowski, legal and policy director for the Modern Military Association of America, said via email to the Washington Blade the order is a victory in the ongoing lawsuit.
“The Trump-Pence administration has once again lost to legal scrutiny and can no longer hide critical documents related to Trump’s unconstitutional transgender military ban,” Perkowski said. “From the moment Trump recklessly tweeted his ban to the day the Department of Defense implemented it, it has always been crystal clear that this transgender military ban is based on nothing more than blatant discrimination.”
The lawsuit before Pechman in Washington State was filed after President Trump tweeted in 2017 he’d ban transgender people from the military “in any capacity,” but before the Pentagon under former Defense Secretary James Mattis completed his six-month policy and implemented restrictions based on his recommendations.
The case has been percolating through the Ninth Circuit for years. Although Pechman initially issued a preliminary injunction barring enforcement of the transgender military ban, the U.S. Supreme Court overturned that order, allowing the policy to go into effect as litigation proceeds.
At issue in the order Pechman granted Friday are documents related to the discovery process in the lawsuit, which compels the U.S. government to produce material relevant to the transgender military ban. Those documents are expected to demonstrate whether the Defense Department implemented policy against transgender people as result of Trump’s tweet, or whether the military determined it needed to exclude them as result of an independent review former Defense Secretary James Mattis was conducting at the time.