Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: What Did We Learn From The Trans Ban Injunction Decision?

Date: February 2, 2019

Overview:

This episode centers on the Supreme Court’s decision to lift injunctions that had prevented the Trump administration from implementing its ban on transgender troops serving in the military. Host Dahlia Lithwick discusses the legal, historical, and human implications of this ruling with Sharon McGowan, Chief Strategy Officer and Legal Director at Lambda Legal, an organization challenging the ban in court. Later in the episode, Joyce White Vance, former U.S. Attorney, joins to break down developments in the Mueller investigation and the legal narrative surrounding recent indictments and arrests.

Key Discussion Points & Insights

1. Background and Legal History of the Transgender Troops Ban

[03:04–07:46]

• Obama Era: In-depth study (by the RAND Corporation and DOD) concluded transgender people could serve openly without negative effect on readiness or cost.
• Trump Administration: In July 2017, President Trump announced via tweet that transgender individuals would not be allowed to serve, turning back the Obama-era policy.
• Legal organizations, including Lambda Legal, immediately sought preliminary injunctions to halt the policy while litigation proceeded.
  Quote:

“We immediately moved into the mode of what’s called the preliminary injunction… and we achieved a preliminary injunction, putting the ban on hold in December of last year.”
—Sharon McGowan, [04:25]

• Administration later issued a formal memo; the court battles shifted to whether this “2.0” version was substantially different.

2. Supreme Court’s Perplexing Order

[07:46–13:56]

• Supreme Court lifted existing injunctions, allowing the ban to go into effect while cases proceed, but declined to leapfrog over the appellate court process.
• Key Point: Anyone already serving and out is “grandfathered in,” but the policy is uncertain; those wishing to enlist or come out risk their careers.
• The distinction in the new policy is framed as being about “gender dysphoria” instead of openly barring transgender service members, an attempt to make the policy appear less discriminatory.

Quote:

“…the government is trying… to repackage a policy that is blatantly discriminatory on its face… targeting trans people even if they try to use different language.”
—Sharon McGowan, [09:54]

3. Scientific and Military Justification (or Lack Thereof)

[08:38–12:23]

• RAND study and experience—including “Don’t Ask, Don’t Tell” repeal—showed no readiness or morale issues, costs deemed “infinitesimal.”
• Scientific consensus remains that transgender people are fit and capable of serving.

Quote:

“Nothing in terms of actual facts have changed… The science about the efficacy of medical care for individuals who are undertaking a gender transition has not changed… All of the major medical associations… are very clearly behind the notion that transgender men and women are able to serve.”
—Sharon McGowan, [12:23]

4. Legal Challenges and Process

[15:16–18:26]

• There are four separate lawsuits in various circuits, each with their own plaintiffs (current service, potential enlistees, etc.). This is in part because different courts/jurisdictions handle claims from affected individuals where they reside.
• Constitutional Claims:
  • Primarily Equal Protection (heightened scrutiny), but also Due Process (right to serve) and First Amendment claims (freedom to live openly).
• Frustration with government’s refusal to provide a full record under claims of executive privilege.

Quote:

“Our claims are primarily equal protection claims… this ban targets a group of people who have historically been subjected to discrimination… the government has a higher burden.”
—Sharon McGowan, [17:01]

5. What the Court’s Action Means (or Doesn’t Mean)

[21:21–24:32]

• The Supreme Court did not decide on the merits of the case. The fight was purely about the current status quo while litigation proceeds.
• The Solicitor General used urgency as a justification for Supreme Court intervention; McGowan called this “divorced from anything remotely like fact.”

Quote:

“I think that’s absolutely right… We had a one-paragraph order that in some ways was sort of screaming with all the things that it didn’t say.”
—Sharon McGowan, [23:44]

6. The Human Impact & Personal Stories

[28:01–30:18]

• McGowan shares stories of clients like Ryan Karnosky, a 24-year-old aspiring military social worker, and Staff Sergeant Katie Schmidt, a 13-year veteran currently serving in South Korea.
• Emphasizes the uncertainty, the morale blow, and the “second class citizen” message sent to transgender troops and aspiring enlistees.
• Public opinion polls show broad support for transgender military service (~70%).

Quote:

“There are just such incredible stories. And I find myself… thinking about how hard they are fighting to serve a country that, to be clear, is overwhelmingly behind them.”
—Sharon McGowan, [28:15]

7. Political and Social Context

[33:15–36:24]

• The trans military ban is part of a broader series of Trump administration actions rescinding rights for LGBT people—rescinding protections for trans kids in schools, narrowing workplace rights, attempts to narrowly define gender, etc.

Quote:

“Literally from day one, we saw Attorney General Jeff Sessions sort of turn the Justice Department into a weapon aimed at the heart of LGBT people, but transgender people in particular…”
—Sharon McGowan, [33:57]

Timestamps for Key Segments

• 00:10–03:00: Episode opening & Supreme Court news overview
• 03:04–15:16: Sharon McGowan on history and legal status of transgender service ban
• 15:16–21:21: Why multiple lawsuits; constitutional claims
• 21:21–26:26: What the SCOTUS order does/not mean, procedural posture
• 26:26–30:18: State of play for service members and telling individual stories
• 33:15–36:24: The trans ban as part of a larger political effort against LGBT rights

Notable Quotes

• "This policy has no legitimate government justification and in fact is only intended to render trans men and women second class citizens."
  —Sharon McGowan, [00:10] & [17:01]

• "The government is trying… to repackage a policy that is blatantly discriminatory on its face."
  —Sharon McGowan, [09:54]

• "We are now facing, you know, sort of a difficult challenge… But when it comes to telling the story, there is no finer group of men and women that we would be happy to represent."
  —Sharon McGowan, [32:10]

Brief Mueller Probe Segment Summary

[38:25–55:43] with Joyce White Vance

• Roger Stone Arrest:

  • The FBI acted appropriately; “raid” narrative is political theater (B, [39:24]).
  • Stone initially praised the FBI for politeness, later shifted to victimhood narrative (B, [40:57]).

• Indictment Details:

  • Mueller likely withholding the full breadth of evidence to preserve investigative integrity (B, [42:53]).
  • Ongoing question about when and if the Mueller investigation will wrap up; skepticism of an imminent report (B, [46:46]).

• Integrity of Justice Institutions:

  • Public confidence in Mueller remains critical (B, [52:08]).
  • Lying to investigators (process crimes) should not be minimized, especially regarding Russia (B, [52:08]).

• Bill Barr as Attorney General:

  • Barr’s DOJ supervision is less concerning for Mueller specifically than for broader civil rights and policy priorities (B, [54:27]).

Memorable Moments

• Sharon McGowan on the “Grandfather Clause”:
  "It really does sort of cast a pall over their career and their professional advancement. And frankly, we don't even know necessarily whether that grandfather clause will stay in effect." ([05:45])

• Human Toll:
  "The talent that we would lose if these men and women were not allowed to serve is significant." ([27:29])

• Dahlia Lithwick’s Framing:
  “This is a show about the law and the nine Supreme Court justices who interpret it for the rest of America. Want more Amicus?” ([00:35])

Conclusion

This episode offers a thorough, compassionate, and critical analysis of the Supreme Court’s action regarding the trans military ban injunctions, laying bare the legal chicanery, the hollow justifications, and, above all, the human consequences of shifting legal landscapes. Sharon McGowan stresses that the legal battle is ongoing and that sustained advocacy—both inside and outside courtrooms—is essential as the cases move forward.

The latter half, with Joyce White Vance, pivots to the Mueller probe, unpacking complicated legal maneuvers, the importance of faith in institutions, and the need for vigilance against political spin. Both segments reinforce the centrality of law as a live, contested terrain in American life.