Is Banning Transgender Individuals from the Military Unconstitutional?

“After consultation with my [g]enerals and military experts, please be advised that the United States Government will not accept or allow [t]ransgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender [individuals] in the military would entail. Thank you[.]” @realDonaldTrump

A little over a year ago, on June 30, 2016, Defense Secretary Ashton B. Carter announced that transgender individuals could serve openly in the armed forces. He also said “the Pentagon would cover the medical costs of those in uniform who wished to undergo gender transition, and that [the Pentagon] would begin a yearlong training program for service members on the changes.”

Yesterday, President Donald J. Trump announced through a series of tweets that the United States will be prohibiting transgender individuals from serving in the military.

According to the December 2016 Department of Defense report, there are nearly 1.3 million active-duty military members. Of that, it is estimated that somewhere between 1,320 and 15,000 of those active-duty members are transgender.

Some supporters of this policy, like U.S. Representative Vicky Hartzler, say their concerns stem from the manner in which tax dollars are spent. “I had an intern that was denied the ability to go into the military because she had a bunion on her foot, and the argument was that this may cost the military, and she might have to have surgery,” Hartzler said. “[W]hy would we allow individuals to come in, although they’re very patriotic and we appreciate their desire to serve, but who have medical problems that could be very costly? We shouldn’t make an exception in this case.”

In contrast, some opponents of this policy, such as OutServe-SLDN (a legal services organization that advocates for LGBT active-duty personnel), say this policy is discriminatory. “The readiness, effectiveness, and lethality of the Armed Services comes from the commitment of our troops,” the organization said in a statement, “not the vagaries and bigotry of exclusionary policies.”

Despite President Trump’s tweets courting both praise and criticism, however, the tweeted policy does raise some constitutional questions.

To date, “neither the Supreme Court nor the Second Circuit has held that transgender plaintiffs are members of a protected or suspect class whose equal protection claims are entitled to heightened scrutiny.” For this reason, an Equal Protection analysis of the tweeted policy must be conducted through the lens of rational basis review.

In making this assessment, a court looks at whether the purposes of the tweeted policy are rationally related to some legitimate government interest. Because President Trump’s two stated reasons for the ban are “disruption” and “tremendous medical costs,” the courts could find these reasons to be rationally related to a legitimate government interest, thereby upholding the policy.

In contrast, the bare desire to harm a particular group of people does not constitute a legitimate government interest. If the tweets are read to mean that transgender service members “erode the fighting capability” of their combat units simply because they are transgender, the courts could deem this policy as one born of animus and strike it down as unconstitutional.

This morning, General Joseph Dunford, chairman of the Joint Chiefs of Staff, stated in a letter to military service chiefs that “the policy on who is allowed to serve will not change until the White House sends the Defense Department a rules change and the secretary of defense issues new guidelines.”


Sources Cited

White v. City of N.Y., 206 F. Supp. 3d 920, 933 (S.D.N.Y. 2016).

Common Sense, Close Family, and Bona Fide Relationships: Hawaii Judge Expands Classes Exempt from Travel Ban

Photo via The Guardian

Written By Ian Ludd



Hawaii U.S. District Judge Derrick Watson ruled last Thursday that the government definition of “close family member” with respect to the Trump Administration’s Travel Ban exemption defies common sense, expanding the exemption to include grandparents, other family members, and refugees with formal assurances from a resettlement agency.


For the purposes of an exemption in the Trump Administration’s Revision Travel Ban (“EO-2”), Hawaii Judge Derrick Watson ruled that a grandparent is a “close family member,” despite the assertions to the contrary by the Government.

The Supreme Court, on June 26, in a per curiam opinion, specified that the stay on enforcement of EO-2 will remain in place for all who have a “credible claim of a bona fide relationship with a person or entity in the United States.” For a bona fide relationship with a “person” to be found, a close familial relationship is required. A relationship with an “entity” requires a formal, documented relationship formed “in the ordinary course, rather than for the purpose of evading EO-2.”

The Trump Administration, in issuing guidance to its agencies on the application and enforcement of EO-2, defined “close familial relationship” narrowly, excluding from its definition, grandparents, grandchildren, aunts, and uncles, amongst other family members. The Hawaii District Court found this definition to be the “antithesis of common sense,” contrary to the Supreme Court’s per curiam decision and other precedent.

The Government’s asserted definition of close family stemmed from a provision of the Immigration and Nationality Act (“INA”), applicable to family-based immigration visas. Nevertheless, the District Court found the use of this definition to be “cherry-picking,” ignoring other relevant immigration statutes that defined close family in a much broader sense.

The Hawaii District Court cited several Supreme Court cases evincing a preference for broad definitions of “close family.” The District Court pointed to the Supreme Court’s focus on a relationship nexus, reasoning that if the Supreme Court had intended to issue an exception only to “immediate family members,” it would have explicitly done so. Furthermore, the District Court reasoned that the definition used by the Government is inherently flawed, as it excludes “mothers-in-law,” despite the Supreme Court explicitly holding that EO-2 may not be enforced against a plaintiff’s mother-in-law and those “similarly situated.”

The District Court also found that refugees covered by a formal assurance between the Government and a United States refugee resettlement agency may not be excluded by EO-2. The Government argued that any contract in such an arrangement exists only between the State Department and the resettlement agency, not the refugee. The District Court found this argument unconvincing.

“Nothing in the Supreme Court’s decision requires a refugee to enter into a contract with a United States entity in order to demonstrate the type of formal relationship necessary to avoid the effects of EO-2. An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades. Bona fide does not get any more bona fide than that.”

The Trump Administration, bypassing the Ninth Circuit, asked the Supreme Court directly to clarify its per curiam ruling and to block the ruling by the Hawaii District Court. On July 19, 2017, the Supreme Court denied the Government’s motion for clarification in a brief unsigned order. The Court further stated that “[t]he District Court order modifying the preliminary injunction with respect to refugees covered by a formal assurance is stayed pending resolution of the Government’s appeal to the Court of Appeals for the Ninth Circuit.”

The Supreme Court is set to definitively rule on the Revised Travel Ban this October.


Sources Cited

Trump v. Int’l Refugee Assistance Project, Nos. 16-1436 (16A1190) and 16-1540 (16A1191), slip op. (U.S. June 26, 2017).

Hawaii, et al. v. Trump, et al., Civil No. 17-00050 DKW-KSC (D. Haw. July 13, 2017) (order granting in part and denying in part plaintiffs’ motion to enforce, or in the alternative, to modify preliminary injunction).

Barbara Campbell, et al., U.S. Challenges Hawaii Judge’s Expansion of Relatives Exempt From Travel Ban, NPR (July 14, 2017).

Joel Rose & Bill Chappell, Supreme Court Revives Parts Of Trump’s Travel Ban As It Agrees To Hear Case, NPR (June 26, 2017).

Julia Edwards Ainsley, et al., Supreme Court gives Hawaii until Tuesday to answer Trump travel ban motion, REUTERS (July 15, 2017).

Adam Liptak, Trump Refugee Restrictions Allowed for Now; Ban on Grandparents Is Rejected, N.Y. Times (July 19, 2017).

Supreme Court Finds Arkansas Statute Unconstitutional; Holds Both Same-Sex Parents’ Names Should Be On Child’s Birth Certificate

Photo via Arkansas Online

Written by Joseph Railey


In a brief per curium opinion, the Supreme Court found Arkansas’ birth certificate statute to be unconstitutional because it treated same-sex couples differently. The Court stated that the statute “denied married same-sex couples access to the ‘constellation of benefits that the stat[e] ha[s] linked to marriage.’”


The case began when two, married, same-sex couples in Arkansas decided to have a child through artificial insemination. Upon the birth of the children, each of the couples wrote in two mothers’ names on the birth certificate paperwork. However, when the couples received the birth certificates back, the State had listed only the mother who carried and gave birth to the child.

At the time, Arkansas’ birth certificate statute provided that “the mother is deemed to be the woman who gives birth to the child” and that, “[i]f the mother was married at the time of either conception or birth, . . . the name of [her] husband shall be entered on the certificate as the father of the child.” One exception to this rule is when the child is born via artificial insemination, where Arkansas allows for only the mother’s name to be listed, unless the father consents to his name being listed as well.

The trial court held that the statute conflicted with Obergefell v. Hodges, 135 S. Ct. 2071 (2015), as it “categorically prohibited every same-sex married couple . . . from enjoying the same spousal benefits which are available to every opposite-sex married couple.” The Arkansas Supreme Court, however, disagreed and held that the statute focused on the relationship between the biological mother, father, and child rather than on the “marital relationship of husband and wife.” As such, it held that the statute did not conflict with Obergefell and was, therefore, constitutional. Thereafter, the United States Supreme Court granted certiorari and reversed the Arkansas Supreme Court’s decision, remanding the case.

In its opinion, the United States Supreme Court noted the disparate treatment.

As already explained, when a married woman in Arkansas conceives a child by means of artificial insemination, the State will—indeed, must—list the name of her male spouse on the child’s birth certificate. And yet state law, as interpreted by the court below, allows Arkansas officials in those very same circumstances to omit a married woman’s female spouse from her child’s birth certificate. As a result, same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school.

In Obergefell, the Court specifically addressed this issue. Where some of the petitioners in Obergefell sued to be listed as parents on their child’s birth certificates, the Obergefell Court expressly identified birth certificates as part of the “terms and conditions” of marriage.

Justices Gorsuch, Thomas, and Alito dissented, noting that summary reversal should not have been applied in this case and that the state’s arguments for only listing biological parents on a birth certificate were permissible. The justices also opined that, as the petitioners only sought relief under the state’s birth certificate registration statute (§ 20-18-401), and not the statute relating to artificial insemination (§ 90-10-201), the Court impermissibly applied that provision.


Sources Cited

Pavan v. Smith, 198 L.Ed.2d 636 (2017).

Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

Ark.  Code Ann. § 20-18-401 (West 2017).

Ark. Code Ann. § 9-10-201(a) (West 2017).

July 2017: Marguerette N. Hosbach (’80)

The word “resurrect” comes from the Latin word resurger, meaning “to rise again.” To resurrect is to both acknowledge defeat and to declare hope. And while resurrecting what has fallen is no simple task, Syracuse Law alumnus Marguerette N. Hosbach (’80) has dedicated her legal career to just that.

           Marguerette N. Hosbach
Executive Director and Associate General Counsel at Ernst & Young 

Twenty-five years ago, Marg started at Ernst & Young in New York City.  She was a young litigation associate and a graduate of the College of Law, where she served as a Syracuse Law Review Notes & Comments Editor.  But her path to EY was certainly not a straight line . . .

Marg graduated from Vassar College in Poughkeepsie, New York, in 1973, where she majored in literature.  At the time, she said there were two options for women with that major.  “Back then, you either worked in advertising or publishing, or you went right to graduate school.”

Marg wanted the practical experience first, so she ventured out into the Big Apple and landed a media research analyst position in a large advertising agency.  Much of her time revolved around supporting the media buyers.  And, while Marg enjoyed the work, she wanted to broaden her knowledge of business, in general, and marketing, in particular.  So, in 1974, she entered Columbia’s MBA program, where she paired academic rigor with participation in internships at cultural and business institutions.

Upon graduating from the MBA program, Marg returned to the advertising agency to take on a new role as an assistant account executive.  In that capacity, Marg assisted in developing and implementing television and print advertising campaigns for large consumer companies such as Procter & Gamble (i.e., Crest toothpaste).  Throughout this time, Marg also became familiar with “the law” as it applied to advertising.  Specifically, Marg worked closely with the legal departments at the major networks, vetting advertising copies.  The more Marg dealt with the legal departments, the more interested she became in the “legal side” of advertising and marketing.  So, after a few years with the agency, Marg decided to take on a new challenge:  law school.

She entered Syracuse University College of Law in the fall of 1977, finding herself among a wonderful group of peers.  “The common denominators I saw in all of those people who wanted to become attorneys were their competence, their varied interests, and their drive.”

Beyond the students, however, were the professors who positively impacted her – an impact, she says, they likely do not know.  One professor she recalls was Professor Gary Kelder, a criminal law expert who still teaches at the College of Law today.  “He was so excited about teaching that he’d be jumping up and down!  That enthusiasm is contagious.  His class really impacted me in terms of deciding to take the position I did upon graduation.”

And what was that position?  Assistant District Attorney for the Manhattan District Attorney’s Office – the job where she would not only develop her skillset and foundation for a legal career to come, but also where she would meet her husband, Gerry Conroy.

When she arrived at the DA’s Office, Marg was placed in the Appeals Bureau. There, she had the opportunity to participate in the preparation of senior attorneys in connection with two United States Supreme Court cases. She credits this assignment to her time on Syracuse Law Review.  “Certainly, Law Review helped me get a job right out of law school.  I think that that is underscored by the fact that my first assignment out of law school was to the Appeals Bureau of the Manhattan DA’s Office.”

After two and a half years in the Appeals Bureau, Marg joined one of the Trial Bureaus to develop her litigation skills.  She tried about 17 cases, until her next exciting opportunity came along just a few years later: the private sector.

“I started working at Cahill Gordon & Reindel LLP in 1985.  Having been on Law Review is one of, I think, the very important reasons why they hired me, especially since they told me that they had never hired anyone out of the public sector before.”  At Cahill, Marg was involved with litigation on behalf of investment banks and large accounting firms.  There, she got exposure to litigation in both civil and regulatory areas.  And after nearly five years of practice at Cahill, a new venture presented itself in the form of Ernst & Young—and Marg grabbed at the opportunity.

During Marg’s first years at EY, she handled accounting malpractice litigation.  However, after a few years with EY, the Enron scandal hit, and there was a surge in the number of large companies filing bankruptcy and hoping to emerge as healthier companies.  Some of those large companies were clients of EY.

Marg started hearing from the restructuring professionals at EY—you have an MBA, you are a litigator—and before she knew it, Marg was asked to develop a practice whereby she could support EY professionals who were providing services to distressed clients.  “I’ve now been advising EY partners who provide services to distressed companies for the past 20 years, and throughout, I’ve seen many waves of industry sectors using bankruptcy to rebuild and emerge with healthier financial structures.  For me, it began with a few questions re the Maidenform bankruptcy and questions over the next few years in connection with numerous retail clients. Enron filed in 2001, then a few years later the bursting of the tech bubble, more recently coal, oil, and energy, and now a new wave of retail filings.”  From industry to industry, Marg has played a role in helping companies restructure and emerge, and she’s done it all through the power of the law.

One of her favorite cases of all?  The City of Detroit.  EY was a financial restructuring advisor to the City of Detroit during its Chapter 9 proceeding (municipalities file Chapter 9, rather than Chapter 11), and Marg helped support the EY team in the provision of EY services.  “I only made a tiny contribution, but Detroit’s restructuring was—without question—crucial to the City thriving.  It was so great stepping back and seeing attorneys making this kind of positive difference for a great American city.  I still have a cover from the NY Times re Detroit posted to my office bulletin board.”

She said the sort of work where a company goes into bankruptcy—broken and defeated—and then can emerge healthy and ready to contribute positively to the American economy is the kind of work that makes her proud.  “That kind of work saves jobs, helps industries thrive, and adds positively to the economy, and I’m proud to be a part of that team.”

Marg’s resume runs the gamut of legal practice, and she wouldn’t have had it any other way.  “My parents used to tell me, ‘You really want to make certain you enjoy what you do because you’ll spend so much time doing it.’ I searched for what was interesting to me at the time, what would be of interest to me in the future, and what would also allow me the opportunity to feel like I was doing something substantive and meaningful.”

I think we all can agree that, from criminal prosecution to corporate insolvency, Marg has done just that.

This story was written by Legal Pulse Editor Samantha Pallini and is the first installment of Syracuse Law Review’s new monthly feature, “Alum of the Month.” Stay tuned for next month’s feature on another noteworthy Syracuse Law Review alumnus.