Some weeks are a bit of a struggle trying to figure out what to blog on. Law360 is a tremendous help. Also, I keep a pipeline of cases as well. However, sometimes I’m just not in the mood to blog on what is in my pipeline. So, I looked at all of my law 360 alerts and lo and behold Karnoski v. Trump came down from the Ninth Circuit. My daughter and I teach at our synagogue during the school year. Our synagogue, Congregation  Bet Haverim, was originally founded as the home for gay and lesbian Jews in Decatur Georgia. Since then, it has also become a welcoming place for the heterosexual community as well. It is a reconstructionist synagogue. Reconstructionism (think reform with a strong sense of community), is an offshoot of the conservative Jewish movement. So, while our liturgy would be very familiar to any Jewish person in the conservative movement, our synagogue is very big on social justice. That said, it is also very interested in a big tent where everyone is welcome, and the rabbi takes that very seriously. So, when I teach at the religious school during the year, I am constantly weaving in case law into my classes. Of course, considering our synagogue’s history and my own professional and personal background, we talk quite a bit about disability discrimination and LGBT as they get analyzed in the courts. We actually talked about our case of the day in my class last year (I teach the seventh grade). Our case of the day is Karnoski v. Trump, opinion can be found here, the Ninth Circuit’s recent decision of June 14, 2019, discussing the military ban on transgender individuals with gender dysphoria. As everyone knows, I follow this area closely because gender dysphoria is a disability under the ADA, and I have always been interested in just how the equal protection clause will be interpreted with respect to the LGBT community when compared to the disability community. As usual, the blog entry is divided into categories and they are: introduction; court’s reasoning equal protection; court’s reasoning executive privilege; court’s reasoning deliberative process privilege; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Introduction

The opinion is fascinating in a couple of different ways. First, it is a published decision without an author, i.e. a per curiam opinion. You don’t see a lot of published decisions without an author. Second, the decision is unanimous. Third, the decision goes 58 pages, but fully 38 pages of that decision is spent detailing the procedural history of the case. Turning to the facts, I am not going to go into 38 pages of facts. Basically, before President Obama left office, he encouraged the Secretary of Defense to study whether transgender individuals should serve in the military. The result of those efforts was a decision that they should. However, President Trump was none too pleased with that. Accordingly, he tweeted that transgender individuals were not going to serve in the military. That led to implementation of the ban and to lawsuits. The lawsuits basically said that the military didn’t do its due diligence and so therefore, the ban should be thrown out. As a result of those lawsuits, the military went through the process of studying the matter, and a report was issued talking about when transgender individuals and those with gender dysphoria could serve or not. That led to more lawsuits including discovery disputes over how the process evolved and what went into the process of coming up with the final report. The District Court did not give the administration much of a choice but to declare executive privilege and deliberative privileges with respect to the discovery disputes. Also, the District Court held that transgender individuals were in a suspect or quasi-suspect class for equal protection purposes. Accordingly, all of that gets appealed to the Ninth Circuit.

II

Court’s Reasoning: Equal Protection

1. Citing to a Supreme Court decision, the Ninth Circuit said that when it comes to equal protection classifications based on gender, the level of justification is “exceedingly persuasive.” That is, the justification has to be genuine and not hypothesized or invented in response to litigation and must not rely on overbroad generalizations about the different talents, capacity, or preferences of males and females. Also, physical differences between the sexes should not be used to denigrate either sex. In short, the Supreme Court requires something more than rational basis review but does not require strict scrutiny.
2. With respect to judicial scrutiny of a military decision based on sexual orientation, the Ninth Circuit has previously said that the government has to advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, is a less intrusive means unlikely to achieve substantially the government’s interest.
3. Citing to city of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), the heightened scrutiny must be applied to the specific circumstances rather than just generally.
4. So, while the military is entitled some deference, that doesn’t mean intermediate scrutiny goes away.
5. In applying intermediate scrutiny on remand, the District Court does not get to substitute its own evaluation of evidence for a reasonable evaluation by the military. However, that deference doesn’t mean just accepting the military’s point of view at face value. The military bears the burden of establishing that they reasonably determined the policy significantly furthers the government’s important interest, and that is not a trivial matter.

III

Court’s Reasoning: Executive Privilege

1. The presidential communication privilege is a presumptive privilege for presidential communications that preserves the president’s ability to obtain candid informed opinion from his advisors and to make decisions confidentially. Accordingly, that privilege protects communication directly involving and documents actually viewed by the president as well as documents solicited and received by the president or his immediate White House advisors with broad and significant responsibility for investigating and formulating advice given to the president. That privilege covers documents reflecting presidential decision-making and deliberations regardless of whether the documents are predecisional or not and it covers the documents in their entirety.
2. The deliberative process privilege is something else entirely. That privilege protects document reflecting advisory opinions, recommendations, and deliberation comprising part of the process by which governmental decisions and policies are formulated. For that privilege to apply, material has to be predecisional and deliberative. That privilege also does not protect documents in their entirety. If the government can segregate and disclose nonprivileged factual information within a document, it has to do so.
3. Since the plaintiff’s have a meritorious argument that the 2018 policy did not independently analyze the impact of transgender individuals serving in the armed services, but rather implemented the 2017 memorandum, both forms of executive privilege are at issue here.
4. Executive privilege is an extraordinary assertion of power that should not be lightly invoked because it sets up an immediate confrontation between two branches of government. Accordingly, when dealing with a dispute over whether subpoenas are unnecessarily broad, that conflict should be avoided whenever possible. In that situation, courts are urged to explore other avenues short of forcing the executive to invoke the privilege.
5. A president does not have to assert the presidential communication privilege to specific documents covered by discovery requests before lodging a separation of powers objection.
6. On remand, while the District Court should give due deference to the presidential communication privilege, the District Court also needs to realize that that deference is not absolute.
7. In an executive privilege situation, plaintiffs have to make a preliminary showing of demonstrating that the evidence sought is directly relevant to issues expected to be central to the trial and is not available with due diligence elsewhere. If the plaintiff shows that the discovery requests are narrowly tailored to seek evidence directly relevant to the central issues in the litigation and that evidence is not available with due diligence elsewhere, plaintiffs meet their preliminary burden. Once that burden is met, then the president gets the opportunity to formally invoke the privilege and make very specific objection to show that the interest in secrecy or nondisclosure outweighs the need for responsive materials. Then, it is up to the District Court to conduct an in camera review before any materials are turned over to the plaintiff’s so that nonrelevant material can be taken out and so that presidential confidentiality is not unnecessarily breached.

IV

Court’s Reasoning: Deliberative Process Privilege

1. A plaintiff can obtain deliberative materials upon a showing of a need for the materials and that the need for accurate fact-finding overrides the government’s interest in nondisclosure. Whether the exception applies involves looking at: 1) the relevance of the evidence; 2) the availability of other evidence; 3) the government’s role in the litigation; and 4) the extent to which disclosure hinders frank and independent discussion regarding contemplative policies and decisions.
2. The record is not adequate to evaluate the relevance of all the requested information in terms of balancing production of materials against the military’s confidentiality interest. Also, the District Court needs to carefully consider the military’s interest in full and frank communications about policymaking. One way to deal with all of this is for the District Court to conduct discovery in stages. After all, documents involving the most senior executive branch officials may require greater deference than other kinds of documents, though of course, those documents may be the most relevant as well.

V

Thoughts and Takeaways

1. I feel sorry for the District Court when it comes to dealing with this case on remand. What the District Court is supposed to do is far from clear. We do know the Ninth Circuit believes transgender individuals are not in the rational basis class, but what class are they in? The Ninth Circuit opinion is really confusing because it specifically refers to “intermediate scrutiny,” but it also cite to the Cleburne decision. The two aren’t the same. Intermediate scrutiny is what we think of with respect to what Justice Ruth Bader Ginsburg established in her advocacy before the Supreme Court when she was a practicing attorney. Cleburne is another animal entirely. Ostensibly, Cleburne was a rational basis case. However, Justice Marshall in that decision noted that it would be more accurate to call Cleburne a rational basis plus decision. To my mind, rational basis plus is a step below intermediate scrutiny. Being the former professor that I am, I would analogize it to rational basis scrutiny being a C, rational basis plus being a C+/B-, intermediate scrutiny being a B, and suspect class being an A. I don’t see how you can say that Cleburne and the intermediate scrutiny cases are the same equal protection classification.
2. While the military gets deference, that deference is not absolute. However, as with the equal protection classification, it is very unclear just where the deference ends and judicial checks begin.
3. The court makes it clear that the District Court is supposed to do everything in its power to prevent claims of executive privilege and deliberative process privileges.
4. If those claims cannot be prevented, then executive and deliberative process privileges need to be respected but that respect is also not absolute. Again, unclear.
5. It is revolutionary that transgender individuals are being put in a class higher than rational basis (the LGBT Supreme Court decisions all stayed away from equal protection classifications in their decision. Instead they focused on other concepts, such as liberty and due process). It will be interesting to see whether this holds. If it holds that transgender individuals are in a class higher than rational basis, that decision could have broad ramifications beyond just the question of whether a transgender individual has a right to serve. It also means that transgender individuals will in at least some cases, be in a higher equal protection class than individuals with disabilities (under Tennessee v. Lane, the equal protection class for people with disability varies depending upon the circumstances of the case).
6. The Ninth Circuit is essentially holding that discrimination against a transgender individual is sex discrimination, a point the Supreme Court has never considered but will do so next year. One wonders how that also will impact on this.
7. For those trying to keep track of all the privilege claim that President Trump is currently making, this case is a nice introduction to the executive and deliberative process privileges.