If We Want To Protect Trans Troops, We Need to Protect Our Courts

The federal court system is a key battleground for defending the rights of transgender servicemembers and all transgender people

By Harper Jean Tobin

Last Tuesday, the US Supreme Court said it would let the Trump Administration temporarily implement its notorious transgender ban while legal challenges to it continue. While the 5–4 order was temporary and doesn’t set legal precedent, it was a chilling sign for service members and for all trans people and their loved ones. Even a brief period of banning and purging trans service members would have damaging ripple effects throughout and well beyond the military.

Coming just 108 days after the bruising, narrow confirmation of Justice Kavanaugh, the high court’s action makes clear just how much judges and courts matter. Imagine what a different world trans people would be in now if moderate nominee Merrick Garland had gotten a hearing and vote to be on the high court in 2016, rather than being stonewalled and supplanted by now-Justice Gorsuch. Or if just two more Senators had taken a principled stand against Kavanaugh based on his extreme partisanship, dishonesty before the Senate, and credible allegations of sexual assault.

In a few days, senators will vote to advance dozens of judicial nominees — including Matthew Kascmaryk, who calls being trans a “delusion.” They’ll also vote on Attorney General nominee William Barr who would has long opposed protections for trans or any LGBTQ people and called HIV the “cost” of “immorality.”

The federal court system is trusted with great power to shape the civil rights laws of our country. Given a lifetime appointment, it’s especially critical that judges, no matter who appoints them, be fair-minded and committed to core principles of equality and dignity. Unfortunately, many Trump nominees fail to meet this basic standard.

In the lower courts — where the vast majority of cases are decided and where trans people have been winning victories for decades — President Trump has confirmed 85 judges, including 30 on the powerful appeals courts. These include narrowly-confirmed judges who have said being transgender is a “delusion” (Kyle Duncan), led the defense of Trump’s military ban (Gregory Katsas), and championed numerous bills with the aim at erasing trans and queer people (Mark Norris).

Several Trump nominees have gone down in flames, including Ryan Bounds for writings using racist and anti-LGBTQ language, and Jeff Mateer for calling transgender kids part of “Satan’s plan.” Another nominee known for vitriolic anti-LGBTQ writings, Gordon Giampietro, was quietly pulled this week.

But Trump is pushing ahead with dozens of other nominees, including the legal architect of Trump’s effort to overturn the Affordable Care Act (Chad Readler), an anti-LGBTQ lawyer closely tied to the nation’s biggest anti-trans group (Allison Jones Rushing), and one who tried to have a judge removed from a case because he was gay (Howard Nielson). Worst of all is Matthew Kacsmaryk, a career anti-trans crusader who denies transgender people exists, calls being trans a “delusion,” and has doggedly opposed any form of trans protections. No wonder over 300 parents of transgender children wrote a letter to Senators opposing Kacsmaryk’s nomination.

But unless a few more principled Senators stand up against Kacsmaryk — as they did with Mateer and Bounds — he will rule on civil rights cases for decades to come.

According to Senate Majority Leader Mitch McConnell, confirming as many judges — and justices — as possible is his greatest accomplishment and biggest priority. It was McConnell, after all, who broke centuries of precedent to block the nomination of Merrick Garland. While support for equality in Congress, state legislatures, and the American public has grown, rulings by the Supreme Court on the military and potentially upcoming rulings on bias against trans workers and students could have huge consequences, for good or ill. If courts matter to you — and they should — call your Senators.