Laura Starecheski
Appearances
This American Life
857: Museum of Now
One labeled, indirect shots. Whoa. Was he keeping score? Tracking how many points the judge landed and how many Lynch did? There were percentages. How long had he been following this case? There were layers of sophistication to observing a hearing like this that I couldn't have imagined. I asked the guy later on a break. He told me he's retired. Court watching is his hobby.
This American Life
857: Museum of Now
Comes here to the federal court building four or five times a week just for fun. On the notepad, he was gaming out scenarios while he listened to the judge. For his other hobby, backgammon. When an executive order gets challenged in court, there's this legal concept that gets applied, a basic test that has to pass.
This American Life
857: Museum of Now
It's usually easy, like a limbo bar 10 feet in the air that you can just walk under. Does the order pass rational basis scrutiny? Meaning, is the government singling out this group for a legitimate reason? Is this order justified? But with this executive order, it was hard to find a justification, because none was offered. No military officials in uniform stepped up to testify.
This American Life
857: Museum of Now
In fact, there were no complaints at all submitted to the court from anyone in the military that trans people disrupt unit cohesion or harm troop readiness, as the order claims. No real evidence, just the naked assertion that trans people are unfit to serve.
This American Life
857: Museum of Now
So without convincing evidence, Judge Reyes was left with the words in the order itself and Jason Lynch standing in front of her to answer a very basic question. Is this order just demeaning and discriminatory in a common-sense way?
This American Life
857: Museum of Now
I don't have an answer. I don't have a view to express. I can't say. There were silver clock hands mounted up on the wood-paneled wall above Lynch's side of the courtroom. They were stuck just after 9 a.m. They never moved. And he repeated the same answers over and over and over. Would you consider being called dishonest demeaning?
This American Life
857: Museum of Now
Animus, here a legal term, meaning roughly hostility towards a specific group. Even if, say, a president doesn't like a certain category of people, the Constitution says the government can't treat them differently or worse than others without a sufficient reason.
This American Life
857: Museum of Now
And if there is no sufficient reason, or any discernible reason, for the executive order, the judge can conclude that it's simply discriminatory, and therefore unconstitutional.
This American Life
857: Museum of Now
Lynch seemed to be in the awkward position of not having a counter-argument, and also having no way to answer her questions without saying something that could hurt his case. Does that express animus?
This American Life
857: Museum of Now
I almost felt bad for Lynch, but he stayed the course, kept stonewalling, which is either the perfect joke for this spot or the worst. Reyes paused, thought, tried a different tack.
This American Life
857: Museum of Now
Lynch actually did go sit down. He left the microphone, awkwardly circumnavigated a large table on the government side, and sat with the other two lawyers. An invisible but collective cringe rippled across the courtroom.
This American Life
857: Museum of Now
Lynch made his way around the table again and went back up to the microphone.
This American Life
857: Museum of Now
This was as close as Lynch came, as far as I could tell, to conceding a point. It's fair for Judge Reyes to ask the question, to ask the government for one legitimate reason for banning transgender people from the military. Trump's Justice Department filed a complaint about Judge Reyes for this forced thought exercise about UVA Law School.
This American Life
857: Museum of Now
They asked for an investigation, said she had tried to embarrass Jason Lynch. Judge Reyes was open to hearing a reason why trans people should not serve in the military. Indeed, she asked for one, practically pleaded.
This American Life
857: Museum of Now
I couldn't count the times over the course of this hearing and the ones that followed that Judge Reyes asked the government lawyers to offer any evidence, any testimony, any studies, any data that would support their case for the executive order. She gave them time. She asked for research and written briefs. Anything. Or anyone.
This American Life
857: Museum of Now
The government never produced any witnesses. No military person took the stand to argue for the executive order. Judge Reyes took a few weeks to rule. Meanwhile, an official policy came down from the Department of Defense. The policy instructed the military to identify trans people within 30 days and required them to either leave on their own or be forced out.
This American Life
857: Museum of Now
So across the military, trans people started to get singled out by their commanders. First slowly, in dribs and drabs, and then faster, as more and more got scooped up and sidelined in different ways. One plaintiff told me she had been yanked from her unit as a medic in a combat zone in the Middle East and put on a plane back to the U.S. so the Army could start the process of discharging her.
This American Life
857: Museum of Now
Another, a congressional fellow in the Air Force serving at the Pentagon, was put on administrative leave and told to prepare to be separated. That's the military term for kicked out. A petty officer showed up for surgery at a Navy medical center in Virginia. He was pulled off a gurney after being given anesthesia, but before the surgeon began the procedure, and told to leave the hospital.
This American Life
857: Museum of Now
When Judge Reyes finally ruled, she wrote that she was blocking the military policy. She found that the policy and the executive order that it was based on violated equal protection rights in the Constitution. She wrote, "...the military ban is soaked in animus and dripping with pretext. Its language is unabashedly demeaning.
This American Life
857: Museum of Now
Its policy stigmatizes transgender persons as inherently unfit, and its conclusions bear no relation to fact." Her ruling said the military could not discharge transgender people just for being trans, and they have to bring anyone who's been put on leave back to active duty. This week, the Trump administration appealed the case to a higher court.
This American Life
857: Museum of Now
As I finish this story, it's unclear whether the military will be allowed to discharge transgender service members or whether Judge Reyes's ruling will stand. If you'll permit me one small digression at this late stage. Back in the courtroom, during the hearings, there was one other court watcher. An even older man, with jeans drooping off his skinny butt.
This American Life
857: Museum of Now
Dedicated, clearly irregular, not always coherent. At one point, apropos of nothing, he called out into the courtroom referencing Brer Rabbit. They threw me into that briar patch, he said. Nothing worse than being thrown into a briar patch on a nice, warm, spring-like day.
This American Life
857: Museum of Now
I think it's fair to say that Trump's executive order, with its almost absurdly strong and cruel language, threw a lot of people into the briar patch. Plaintiffs first and foremost. Their families. Other trans service members. Lawyers. Judges. Me. It started a chain of events, and we might still be at the beginning. This case could take a while to wind its way through the courts.
This American Life
857: Museum of Now
Months, maybe years, making this the kind of situation that's apparently a little too easy to get into and very, very difficult to get out of.