Spc. Mitchell Eidsvold (left), Spc. Michael Hons (center), and Sgt. Scott Jenson (right) of the 191st Military Police Company race towards the finish line of the Fallen Soldiers Memorial 12K run, while wearing full combat equipment and carrying the American Flag. The run took place in Devils Lake, N.D. on June 23, 2012. (U.S. Army National Guard photo by Sgt. Brett Miller, 116th Public Affairs Detachment) (Released)

As a three-judge appellate panel prepares to hear oral arguments tomorrow challenging the transgender military ban, the government tipped its hand weeks ago that it expects to lose.

In requesting expedited argument before the U.S. Court of Appeals for the Ninth Circuit, Justice Department lawyers explained that they wanted to hurry along the decision so as “to allow the Supreme Court of the United States the opportunity to consider these issues next term.”

Which is probably not a request you'd make if you felt confident you were going to win this round.  

Indeed, you couldn't blame the DOJ team led by Brinton Lucas and Mark Freeman if they feel like they're walking into the lion's den when they enter the second-floor courtroom in the Pioneer Courthouse in Portland, Oregon at 9:30 on October 10.

They're defending an unpopular policy that the military didn't ask for, and that was originally announced in a tweet by President Donald Trump on July 26, 2017. “The United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military,” Trump decreed. The administration later allowed for certain limited exceptions to the policy.

It's not a particularly auspicious panel for the government lawyers (not that any Ninth Circuit panel was likely to be).

They're appearing before Senior Judge Richard Clifton, who was part of a panel that ruled against the Trump administration in the travel ban, and Senior Judge Raymond Fisher, who was ranked No. 9 on a list of the most liberal circuit court judges in the country in a 2016 American Law and Economics Review article. The third panel member is Consuelo María Callahan, a George W. Bush appointee with a reputation as a moderate conservative.

The government is appealing a preliminary injunction against the Department of Defense's 2018 policy regarding military service by transgender individuals, as well as challenging discovery orders issued by the district court.

The DOJ team will face off against Steve Patton of Kirkland & Ellis, who is working pro bono with Lambda Legal. Patton will handle the bulk of oral argument, advocating on behalf of Ryan Karnoski, a transgender man who wants to serve in the military, as well as two others who seek to enlist, six currently serving members of the armed services; the Human Rights Campaign; Gender Justice League; and the American Military Partner Association.

La Rond Baker is also arguing on behalf of the State of Washington.

Patton, who declined comment, is likely to be a formidable opponent.

He rejoined Kirkland in 2017 after serving as the City of Chicago's corporation counsel and Mayor Rahm Emanuel's senior legal advisor. He's also an appellate veteran. Per his law firm bio, in one two-year period alone, he argued 20 appeals before the highest courts of Connecticut, Delaware, Maine, Massachusetts, Nebraska, Nevada, New Hampshire, New York, North Dakota, Oklahoma, Vermont and West Virginia, and appellate courts in Kentucky, Louisiana, Maryland, Michigan, New York, North Carolina and Ohio. 

He was also the lead counsel for the tobacco industry in hammering out the $206 billion master settlement agreement.

By contrast, Brinton Lucas, who is counsel to the assistant attorney general, has been practicing law for seven years. He graduated from the University of Virginia's School of Law in 2011 and clerked for Justice Clarence Thomas during the 2014-15 term.

Mark Freeman, the director of DOJ's civil appellate staff, graduated from Harvard Law School in 2003 and joined the department as an honors attorney in 2004 after clerking for Judge Sandra Lynch on the First Circuit.

The pair will split argument for the government, with Freeman handling the discovery dispute and Lucas arguing to lift the injunction.

The case has attracted significant amici interest—all in opposition to the government's position. Among the submissions: Gibson, Dunn & Crutcher's Stuart Delery on behalf of the Trevor Project, an LGBTQ youth crisis intervention and suicide prevention organization. (“Excluding transgender people from the military denies them the opportunity to answer the noble call to serve their country, and this act of discrimination deprives them of full membership in society.”)

Also Susan Baker Manning of Morgan, Lewis & Bockius for health care professionals who served as the highest-ranking medical officer of their respective military branches. (“[T]he DoD Report fails to show that banning transgender people from military service is rationally, much less substantially, related to the government's asserted interests in military readiness, unit cohesion, or cost savings.”)

And Scott Wilkens of Jenner & Block for 11 leading medical, nursing, mental health and other health care organizations. (“There is no legitimate medical reason why transgender individuals should be excluded from the military or denied transition-related health care. Being transgender does not diminish a person's ability to serve in the military.”)

And Abha Khanna of Perkins Coie for the Constitutional Accountability Center. (“The Constitution's guarantee of equal protection implicit in the Fifth Amendment requires that the federal government respect fundamental rights central to individual dignity and autonomy for all persons, including transgender persons.”)

And Yale Law School's Harold Hongju Koh, the former top lawyer at the State Department, on behalf of retired military officers and former national security professionals. (“Excluding transgender individuals from patriotic service that they are trained and qualified to give based on group characteristics, rather than individual fitness to serve, undermines rather than promotes the national security interests of the United States.”)

There are more, but you get the idea.

So what does the DOJ team have in its arsenal?

“Both historically and today, the military has not permitted individuals to serve if they have medical conditions that may excessively limit their deployability, pose an increased risk of injury to themselves or others, or otherwise require measures that threaten to impair the effectiveness of their unit,” the DOJ lawyers wrote in their opening brief. “In the department's professional military judgment, these criteria are met for the medical condition of gender dysphoria—a lengthy and marked incongruence between one's biological sex and gender identity.”

They stress that the revised policy doesn't actually bar transgender people—just those with gender dysphoria. And that transgender people can serve in the military provided they “neither need nor have undergone gender transition” and “are willing and able to adhere to the standards associated with their biological sex.”

Which sounds a lot like “Don't ask, don't tell,” version 2.0.

Good luck with that before the Ninth Circuit.

But of course, the Ninth Circuit is only an intermediate step. The end game is the Supreme Court, where the absence of Anthony Kennedy may well make all the difference. No wonder the DOJ lawyers want to get the Ninth Circuit case over with as quickly as they can.

 

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