Ban on transgender personnel in the military will receive intermediate scrutiny; injunction against the ban is stayed.

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Here’s a complicated case, raising important issues about the rights of transgender individuals, the extent of executive branch privileges, and the amount of deference courts should grant to military decisions.

In 2017 the President issued a Memorandum barring transgender individuals from serving in the military, but a federal district court issued a preliminary injunction against enforcement of the 2017 Memorandum. In 2018 the President revoked his 2017 Memorandum and authorized the Secretary of Defense to implement the policies he proposed based on a 44-page report. Defendants then requested that the district court dissolve its preliminary injunction, but the district court struck that motion. While defendants were appealing that order, the district court denied defendants' motion for a protective order of discovery and granted plaintiffs' motion to compel production of documents that defendants withheld under a claim of two executive branch privileges. Defendants then petitioned the 9th Circuit for a writ of mandamus challenging the discovery order.

In Karnoski v. Trump (9th Cir 06/14/2019) [PDF] the 9th Circuit:

(1) vacated the district court’s order striking the Defendants’ motion to dissolve the preliminary injunction and remanded to the district court to reconsider the motion. This was on the ground that the 2018 Policy was significantly different from the 2017 Memorandum. In evaluating whether the significant change warrants dissolution of the preliminary injunction, the 9th Circuit rejected the district court's strict scrutiny approach. "[T]he district court should apply a standard of review that is more than rational basis but less than strict scrutiny." In addition, the district court "must apply appropriate military deference to its evaluation of the 2018 Policy." "In applying intermediate scrutiny on remand, the district court may not substitute its 'own evaluation of evidence for a reasonable evaluation' by the military."

(2) issued a stay of the preliminary injunction (which had previously been ordered by the US Supreme Court).

(3) vacated the district court’s discovery order and directed the district court to reconsider discovery by giving careful consideration to executive branch privileges. These include the deliberative process privilege and the presidential communications privilege.