Executive Power

Summary: D.C. District Court Ruling on Transgender Military Service Order

By Sarah Grant
Tuesday, October 31, 2017, 1:30 PM

On Monday, Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia issued a memorandum opinion and order in the case of Jane Doe 1, et al., v. Donald J. Trump, et al., partially enjoining a presidential memorandum issued on Aug. 25. The memorandum extended a prohibition against transgender individuals entering the military (“accession directive”) and required the military to authorize, no later than March 23, 2018, the discharge of transgender service members (“retention directive”). Kollar-Kotelly:

  1. granted a preliminary injunction against the accession and retention directives;
  2. dismissed for lack of standing the plaintiffs’ challenge to the presidential memorandum’s prohibition against the expenditure of military resources on sex reassignment surgery; and
  3. dismissed without prejudice the plaintiffs’ claim of relief under a theory of estoppel against the government.

The effect of the court’s order is to revert to the retention and accession policies established in a June 30, 2016 directive-type memorandum (DTM) issued by then-Defense Secretary Ash Carter and later modified by Defense Secretary Jim Mattis one year later, which permitted open service by and government-funded medical care for transgender service members.

Previously, on Lawfare, Russell Spivak covered the presidential memorandum, Helen Klein Murillo summarized the service members’ claim, and Michel Paradis discussed the merits of possible arguments. Below is a summary of Monday’s opinion.

 

Background

Kollar-Kotelly first summarizes the evolution in the Department of Defense’s (DoD) policy towards transgender service. Prior to 2014, transgender individuals were generally banned from entering the military, with a possible exception for those who receive a medical waiver for accession. If already serving, they could be separated at the discretion of military commands “for the convenience of the government.” In August 2014, DoD issued a new regulation eliminating a “DoD-wide list of conditions that would disqualify persons from retention in military service, including the categorical ban on open service by transgender persons.” Subsequently, in July 2015, then-Secretary Carter issued a memorandum prohibiting the service secretaries from involuntarily separating transgender service members or denying them reenlistment or continuation of active or reserve service on the basis of their gender identity. The memo also ordered the formation of a DoD working group to formulate policy options regarding service by transgender individuals. Based upon the information it collected and the results of a RAND study it commissioned, the working group concluded that transgender individuals should be allowed to serve openly in the military. Following that recommendation, Carter issued the DTM stating that open service by transgender Americans was “consistent with military readiness” and establishing policy and procedures for “the retention, accession, separation, in-service transition and medical coverage for transgender personnel serving in the Military Services,” to take full effect no later than July 1, 2017. DoD promulgated a policy-implementation handbook in Sept. 2016, and the individual services issued their own implementing memoranda later in the fall.

The Trump administration reversed course. On June 30, 2017, Mattis deferred acceding transgender applicants into the military until Jan. 1, 2018 and called for further review of accession plans and possible impacts to military readiness. On July 26, President Donald Trump wrote in a series of tweets:

President Trump issued a “Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security” on Aug. 25, directing the military to return to a policy that “generally prohibited openly transgender individuals from accession into the United States military and authorized the discharge of such individuals,” effective March 23, 2018. Specifically, the memorandum:

  1. Indefinitely extends a prohibition on new accessions beyond the prior Jan. 1, 2018 end date
  2. halts government funding for sex reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of the individual; and
  3. orders the production of an implementation plan by no later than Feb. 21, 2018 that details how DoD and DHS will “address transgender individuals currently serving in the United States military.”

On Aug. 29, Mattis announced that DoD would develop a study and implementation plan to carry out the president’s policy direction. On Sept. 14, Mattis issued interim guidance, effective immediately, that generally prohibits new accessions; permits medical treatment for diagnosed gender dysphoria but prohibits new sex-reassignment surgeries; allows re-enlistment by otherwise qualified transgender service members at their request; and bars involuntary separation or discharge of otherwise qualified service members solely on the basis of gender identity or transgender status. The interim guidance will remain in effect until Mattis presents a final implementation plan for the president’s approval, by no later than Feb. 21, 2018.

 

Plaintiffs

The plaintiffs are current and aspiring service members who are transgender:

  1. Jane Doe 1 has served in the Coast Guard since 2003 and receives medical treatment for gender dysphoria at her own expense.
  2. Jane Doe 2 joined the Army National Guard in 2003, and has been receiving transition treatment, including hormone treatment, from military healthcare providers since obtaining a formal gender dysphoria diagnosis following the June 2016 DTM.
  3. Jane Doe 3 serves in the Army, has received a gender dysphoria diagnosis from an Army therapist and developed a transition plan in coordination with medical professionals but has not begun any treatment steps.
  4. Jane Doe 4 currently serves in the Army National Guard and reenlisted effective Aug. 24, 2017, extending her commitment until Feb. 2020.
  5. Jane Doe 5 has been on active duty in the Air Force for nearly 20 years and has notified her superiors that she is transgender.
  6. John Doe 1 serves in the Army and, until recently, was preparing to deploy to the Middle East with his unit in mid-2018. He has received an approved treatment plan, which includes a transition-related surgery, on Jan. 4, 2018.
  7. Regan Kibby is a Naval Academy midshipman currently on a year-long medical leave of absence to undergo his medical transition. He plans to return to the academy for his third year in the fall of 2018.
  8. Dylan Kohere is a member of Army ROTC at the University of New Haven and has started to work with medical professional to begin a treatment plan for his transition.

 

Motions Under Consideration

The court considered two motions:

  1. The government filed a motion to dismiss, citing both a lack of jurisdiction of the court to adjudicate the case and the plaintiffs’ failure to state a claim upon which relief can be granted.
  2. Plaintiffs filed a motion for a preliminary injunction, which can only be granted if the plaintiffs establish that they are likely to succeed on the merits of their claim, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favors, and that an injunction is in the public interest.

 

Jurisdiction

Kollar-Kotelly determines that the court has proper jurisdiction to adjudicate the propriety of the accession and retention directives in the presidential memorandum but not the prohibition on use of military resources to fund sex reassignment surgical procedures. She first addresses standing, which requires, in essence, that plaintiffs have “a personal stake in the outcome of the controversy.” That is, there must be: (1) a concrete and particularized, and actual or imminent, “injury in fact” to the plaintiffs; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision.

She dismisses the government’s arguments (1) that the presidential memorandum is not set in stone and that the policy it may produce is unknown, and (2) that the plaintiffs and other potential service members are, in the meantime, protected by Mattis’ interim guidance. She finds that the memorandum is a sufficiently definite directive to adjudicate and that by its terms, “there is a substantial likelihood that transgender individuals will be indefinitely prevented from acceding to the military as of January 1, 2018, and that the military shall authorize the discharge of current service members who are transgender as of March 23, 2018.”

She then assesses plaintiffs’ claim that the accession and retention directives in the memorandum violate the Fifth Amendment due process clause’s guarantee of equal protection, finding in favor of the plaintiffs. She concludes that the accession and retention directives “impose a competitive barrier that the Named and Pseudonym Plaintiffs are substantially likely to encounter, and…that this barrier constitutes an injury in fact sufficient to imbue the Named and Pseudonym Plaintiffs with standing to challenge the propriety” of the directives. Plaintiffs do not, however, have standing to challenge the sex reassignment surgery directive because none of the plaintiffs have demonstrated a relevant injury-in-fact.

Finally, the case is ripe for judicial review because the directives are concrete, the court would not benefit from delay, and any further delay would impose a burden upon plaintiffs, whom the judge says

must continue to service or strive toward service, expending resources and declining other opportunities, while faced with the prospect of discharge and preclusion of military service, and the stigma that the Presidential Memorandum attaches to service by transgender individuals.

Ultimately, Kollar-Kotelly concludes that plaintiffs have carried their burden of establishing the jurisdiction of the court to adjudicate the alleged Fifth Amendment violations imposed by the accession and retention directives.

 

Plaintiffs’ Claims

Plaintiffs assert two distinct claims: The first is that the memorandum violates due process guarantees, and the second is a claim for estoppel against the government. Kollar-Kotelly determines that plaintiffs are likely to succeed on the merits of the due process claim and can therefore proceed on that ground but finds insufficient basis on the facts alleged for the estoppel claim and dismisses that piece without prejudice.

 

Motion for Preliminary Injunction

Echoing much of what was covered in the jurisdictional section, Kollar-Kotelly:

finds (1) that Plaintiffs have a likelihood of succeeding on their claim that the Accession and Retention Directives violate the Fifth Amendment, (2) that Plaintiffs would suffer irreparable injury in the absence of an injunction, and (3) that the balance of equities and the public interest favor granting injunctive relief.

The judge arrives at that finding by first determining that the court should apply intermediate scrutiny, as transgender individuals appear to satisfy the criteria of at least a quasi-suspect classification and intermediate scrutiny is the standard to which forms of discrimination on the basis of gender are subject. Next, she applies intermediate scrutiny to the accession and retention directives and concludes that they likely do not succeed for a variety of reasons:

  1. “[T]he reasons given for the decision to exclude transgender service members appear to be hypothetical and extremely overbroad.”
  2. “The breadth of the Accession and Retention Directives is also discontinuous with the purported concern about costs…”
  3. “Defendants provide practically no explanation at all, let alone support, for their suggestion that the presence of transgender individuals may be harmful to ‘unit cohesion.’”
  4. “[A]ll of the reasons proffered by the President for excluding transgender individuals from the military in this case were not merely unsupported, but were actually contradicted by the studies, conclusions and judgment of the military itself.” (emphasis in original)
  5. “[T]he [prior] Secretary of Defense concluded that the needs of the military were best served by allowing transgender individuals to openly serve.”
  6. The abrupt announcement via Twitter and other surrounding “circumstances provide additional support for the Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficiency.”

Together, these factors “are highly suggestive of a constitutional violation.” Furthermore, Kollar-Kotelly points out that the accession and retention directives took away from transgender people rights they had previously been given in the June 2016 MTD—that is, to serve openly, to be allowed to accede by a date certain in early 2018, and to receive proper medical care. “The targeted revocation of rights from a particular class of people…is a fundamentally different act than not giving those rights in the first place,” and the government has the burden of showing that the revocation itself is substantially related to important government objectives. At this stage, the government has not effectively done so.

She then describes the irreparable harms the plaintiffs will likely face without injunctive relief, including stigma, reduced statute among peers and officers, stunted career growth, and professional derailment. In addition to the practical consequences, the loss of constitutional freedoms, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Finally, she finds that the public interest and balance of hardships weigh in favor of granting the plaintiffs injunctive relief.

 

Conclusion

Kollar-Kotelly granted the government’s motion to dismiss the claims based on the sex reassignment surgery directive, as well as the estoppel claim, but denied the motion to dismiss in all other respects. She granted the plaintiff’s motion for a preliminary injunction as to the accession and retention directives, returning to force the June 2016 DTM, as modified by Mattis in June 2017, allowing open service by transgender individuals.

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