Unmuting Immutability: How Strict Scrutiny for Transgender People is Changing the Game

On April 13th, Judge Marsha J. Pechman, a U.S. District Judge in the Western District of Washington, released the opinion in the latest saga of the Transgender military ban[1]. In keeping with the reasoning used by other judges who have ruled on this topic, she kept a previously ordered injunction in place, saying that the President’s “new” guidance on the subject was effectively the same as the old ban from 2017, and therefore was still under the effects of the prior injunction.[2]

However, Judge Pechman took her analysis a step further. In a previous opinion, the Court had stated that transgender people are “at minimum, a quasi-suspect class”.[3]  But this time around, the court concluded that transgender people are a suspect class, and therefore warrant strict scrutiny.[4] The Court takes all of the factors for a suspect class in turn, stating that transgender people meet all of the requirements[5].  This was an enormous move in the fight for LGBT equality, as courts historically have sidestepped the issue of deciding the appropriate level of scrutiny.

The most controversial of the elements required to be considered a suspect class is the argument of immutability. For the courts to consider a trait immutable, it must be “determined solely by the accident of birth and is not capable of or susceptible to change.[6] While the medical community has argued that being transgender is not something that can be changed[7], the courts have not taken a stance on the issue until Judge Pechman’s opinion. By determining that being transgender is immutable, and therefore subject to strict scrutiny, this could have far reaching effects into equal protection litigation for the transgender community.

This could reach into asylum law, particularly. While asylum in the US can be grated to those of a “particular social group”[8], there are no explicit protections for those that are being persecuted based on their sexual orientation or gender identity. The Immigration and Nationality Act does not define what a the requirement of “membership or a particular social group” means necessarily, however, case law has determined that it means a group of people, “all of whom share a common, immutable characteristic.”[9]

This definition on its own has not been enough to include transgender people seeking asylum in the past. But with the new decision, a federal court is now saying that being transgender is an immutable characteristic, one that deserves a higher level of scrutiny. This could have a ripple effect on transgender asylum seekers, and make the United States a safer harbor for those being persecuted because of their gender identity.

About the Author: Kylee Reynolds is a recent graduate from Penn State Law.


 

[1] Karnoski v. Trump, No. C17-1297-MJP, 2018 WL 1784464 (W.D. Wash. Apr. 13, 2018)

[2] Id. at 11

[3] Id. at 20

[4] Id.

[5]The Four factors are:

“(1) whether the class has been “[a]s a historical matter . . . subjected to discrimination,” Bowen v. Gilliard, 483 U.S. 587, 602 (1987)

(2) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985)

(3) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define [it] as a discrete group,” Bowen, 483 U.S. at 602

(4) whether the class is “a minority or politically powerless.” Id.; see also Windsor v. U.S., 699 F.3d 169, 181 (2d Cir. 2012), aff’d on other grounds, 570 U.S. 744 (2013)”

[6] Frontiero v. Richardson, 411 U.S. 677, 686 (1973).

[7] American Psychiatric Association, What Does Transgender Mean?  (2018) http://www.apa.org/topics/lgbt/transgender.aspx

[8] INA § 101(a)(42)(A)

[9] Matter of Acosta, A-24159781 (March 1, 1985)

 

Leave a Reply