Litigation on the Transgender Service Member Ban: An Update

A little over a year ago, on July 26, 2017, the president tweeted:

A month later, on August 25, Trump issued a presidential memorandum formalizing the exclusionary policy. Since then, four lawsuits challenging the ban on open service in the military by transgender Americans on constitutional grounds have proceeded in federal courts across the country: Doe v. Trump, Stone v. Trump, Karnoski v. Trump, and Stockman v. Trump. The lawsuits name as defendants Trump, Secretary of Defense James Mattis, and various other civilian and uniformed officials in the Department of Defense and Department of Homeland Security. Implementation of the policy is currently blocked by preliminary injunctions in each of the four cases. The effect of the preliminary injunctions is to maintain the status quo ante from the Obama administration, according to which transgender service members were allowed to enlist and serve openly beginning January 1, 2018.

This post summarizes significant litigation developments over the past few months, focusing primarily on Doe and Karnoski and only briefly addressing Stockman and Stone to avoid repetition. For previous Lawfare updates, see here, here, and here.

Doe v. Trump (U.S. District Court for the District of Columbia)

Last Monday, Judge Colleen Kollar-Kotelly issued two significant rulings in Doe. First, she granted the defense’s motion to dismiss the president as a party and to dissolve the preliminary injunction only as it applies to Trump. Second, she denied the remaining defendants’ motion to dismiss the plaintiffs’ Second Amended Complaint and motion to dissolve the preliminary injunction.

In the first ruling, Kollar-Kotelly noted that “[s]ound separation-of-power principles counsel the Court against granting [injunctive and declaratory] relief against the President directly” when not absolutely necessary to do so. In this case, because “[t]he Court can still review [the President’s] acts” without him being a named party, “and, if Plaintiffs are successful in proving that they are unconstitutional, Plaintiffs can still obtain all of the relief that they seek from the other Defendants,” Kollar-Kotelly concluded it was proper to “avoid unnecessary constitutional confrontations” by declining to grant relief against the President directly and dismissing him as a party. At the same time, the judge made clear that she was not, as the plaintiffs suggested, “announc[ing] a new rule of “absolute immunity” for the President from civil suits for equitable relief. The Court merely holds that on the particular facts of this case … there is no sound reason for risking constitutional confrontations by retaining the President as a Defendant.”

At the beginning of the second opinion denying the motion to dismiss and dissolve the preliminary injunction, Judge Kollar-Kotelly recapped the history of the Doe litigation.

Plaintiffs are current and aspiring transgender service members… All fear that the directives of the 2017 Presidential Memorandum will have devastating impacts on their careers and their families. Accordingly, they filed this lawsuit challenging those directives and moved this Court to enjoin the implementation of the 2017 Presidential Memorandum. They claimed that the President’s directives violate the fundamental guarantees of due process afforded by the Fifth Amendment to the United States Constitution.

On October 30, 2017, the Court issued a preliminary injunction in this case. As particularly relevant here, the Court found that Plaintiffs had standing and were likely to succeed on their Fifth Amendment claim. The Court concluded that, as a form of government action that classifies people based on their gender identity, and disfavors a class of historically persecuted and politically powerless individuals, the President’s directives were subject to heightened scrutiny. Plaintiffs claimed that the President’s directives could not survive such scrutiny because they were not genuinely based on legitimate concerns regarding military effectiveness or budget constraints, but were instead driven by a desire to express disapproval of transgender people generally. The Court found that a number of factors—including the breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the President’s announcement of them, the fact that the reasons given for them did not appear to be supported by any facts, and the recent rejection of those reasons by the military itself—strongly suggested that Plaintiffs’ Fifth Amendment claim was meritorious. Accordingly, the Court enjoined Defendants from enforcing the President’s directives. The effect of the Court’s preliminary injunction was to revert to the status quo ante with regard to accession and retention that existed before the issuance of the 2017 Presidential Memorandum.

Defendants appealed and moved this Court to stay the portion of its preliminary injunction that required Defendants to begin accepting transgender individuals into the military on January 1, 2018. On December 11, 2017, the Court denied Defendants’ motion to stay. Defendants then sought the same relief from the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”). On December 22, 2017, the D.C. Circuit denied Defendants’ motion to stay this Court’s preliminary injunction… After the D.C. Circuit’s opinion was issued, Defendants voluntarily dismissed their appeal of this Court’s preliminary injunction. The military began permitting openly transgender individuals to accede on January 1, 2018.

…

In February 2018, as ordered by the 2017 Presidential Memorandum, Secretary of Defense Mattis presented a memorandum to the President that proposed a policy to effectively prevent transgender military service. See Defs.’ Mot. to Dissolve the Preliminary Injunction (hereinafter, the “Mattis Implementation Plan”). The Mattis Implementation Plan, unlike the President’s 2017 tweet and memorandum, purports not to be a blanket ban on all “transgender individuals.” However, the plan effectively implements such a ban by targeting proxies of transgender status, such as “gender dysphoria” and “gender transition,” and by requiring all service members to serve “in their biological sex.” … [U]nder the Mattis Implementation Plan, individuals who require or have undergone gender transition are absolutely disqualified from military service; individuals with a history or diagnosis of gender dysphoria are largely disqualified from military service; and, to the extent that there are any individuals who identify as “transgender” but do not fall under the first two categories, they may serve, but only “in their biological sex.” By definition, transgender persons do not identify or live in accord with their biological sex, which means that the result of the Mattis Implementation Plan is that transgender individuals are generally not allowed to serve openly in the military.

…

The reasoning underlying the Mattis Implementation Plan is spelled out in a second memorandum that was sent from the Department of Defense to the President in February 2018 (hereinafter, the “Panel Report”)… Generally speaking, the Panel Report concludes that individuals with gender dysphoria or who have undergone or will require gender transition undermine the military. According to the report, these service members are fundamentally incompatible with the military’s mental health standards, physical health standards, and sex-based standards. The report suggests that they are a detriment to military readiness and unit cohesion… For the most part, in lieu of affirmative evidence, the Panel Report repeatedly cites “uncertainty” in the medical field about these individuals as a reason to urge that the military “proceed with caution.”

On March 23, 2018, Defendants filed a Notice informing the Court that President Trump had issued a second memorandum on military service by transgender individuals. In the 2018 Presidential Memorandum, the President stated that he “revokes” his 2017 Presidential Memorandum, “and any other directive [he] may have made with respect to military service by transgender individuals.” The President ordered that “[t]he Secretary of Defense, and the Secretary of Homeland Security, with respect to the U.S. Coast Guard, may exercise their authority to implement any appropriate policies concerning military service by transgender individuals.” To be clear, as has just been laid out, the “appropriate policies” that the Secretaries intended to implement had already been developed and proposed to the President at the time he issued this memorandum.

…

Defendants argue that the Mattis Implementation Plan represents a “new policy” divorced and distinct from the President’s 2017 policy directives that were previously enjoined by this Court. They also contend that the Mattis Implementation Plan does not harm the Plaintiffs in this case. Accordingly, Defendants seek the dismissal of Plaintiffs’ recently filed Second Amended Complaint for lack of jurisdiction because Plaintiffs lack standing and because their claims are now moot. For largely the same reasons, Defendants also argue that the Court’s preliminary injunction should be dissolved. In sum, it is Defendants’ view that they have preempted this lawsuit by drafting and issuing the Panel Report, the Mattis Implementation Plan, and the 2018 Presidential Memorandum.”

Judge Kollar-Kotelly disagreed. In short, she concluded “that Plaintiffs have standing because they would all be harmed if the Mattis Implementation Plan were allowed to take effect” and “that the Mattis Implementation Plan has not mooted Plaintiffs’ claims because that plan is not a “new policy” that is meaningfully distinct from the President’s 2017 directives that were originally challenged in this case. Instead, at a fundamental level, the Mattis Implementation Plan is just that—a plan that implements the President’s directive that transgender people be excluded from the military. For largely the same reasons, the rationale for the Court’s preliminary injunction maintaining the status quo ante until the final resolution of this case remains intact.”

Moving through the required elements, she determined that the plaintiffs continue to have standing because “[t]he Mattis Implementation Plan clearly harms all current service members with gender dysphoria—even those who are allowed to remain in the military as a result of a narrow grandfather provision… The Mattis Implementation Plan sends a blatantly stigmatizing message to all members of the military hierarchy that has a unique and damaging effect on a narrow and identifiable set of individuals, of which Plaintiffs are members.” Prospective service members who are transgender also have standing because under the Mattis Implementation Plan, “these individuals will be barred from military service because they have undergone gender transition. Being barred from service is clearly an “injury in fact” sufficient to give these Plaintiffs standing.” Finally, current service members who have not yet disclosed their transgender identity and obtained a diagnosis of gender dysphoria have standing to sue because if the Mattis Implementation Plan went into effect, those service members would be subject “to discharge if [they] sought a diagnosis of gender dysphoria and gender transition therapy.” A service member, in this case plaintiff Jane Doe 6, “does not lack standing simply because she has the option of either remaining in the military and disavowing her identity as a transgender person, or coming out and serving as a member of an officially branded inferior class of service members.”

Judge Kollar-Kotelly also rejected the defendants’ argument that the plaintiffs’ challenge to the President’s 2017 directives is moot because the argument relied upon the unsupported premise “that the Mattis Implementation Plan is a new and different policy than the one announced by President Trump in 2017… To the contrary, the Mattis Implementation Plan appears to be just that—an implementation plan. The plan implements the President’s 2017 directives that the military not allow transgender individuals to serve in the military.”

Under the Mattis Implementation Plan, those transgender persons who are not summarily banned are only allowed in the military if they serve in their biological sex. But by definition—at least the definition relevant to Plaintiffs’ claims in this lawsuit—transgender persons do not identify or live in accord with their biological sex. Accordingly, the Mattis Implementation Plan effectively translates into a ban on transgender persons in the military. Tolerating a person with a certain characteristic only on the condition that they renounce that characteristic is the same as not tolerating them at all. As Plaintiffs correctly argue, “[j]ust as a policy allowing Muslims to serve in the military if they renounce their Muslim faith would be a ban of military service by Muslims, a policy requiring transgender individuals to serve in their birth sex is a ban on transgender service."

Turning to the motion to dissolve the preliminary injunction, the judge similarly rejected defendants’ arguments, finding that, “[o]n the merits, the Mattis Implementation Plan still accomplishes an extremely broad prohibition on military service by transgender individuals that appears to be divorced from any transgender individual’s actual ability to serve.” She accordingly concluded that “the need remains intact for the Court’s preliminary injunction maintaining the status quo ante until the final resolution of this case on the merits.”

In closing, Judge Kollar-Kotelly observed that “[i]t should not be forgotten that the United States military remains engaged in numerous armed conflicts throughout the world, and service members are still being injured and killed in those conflicts. The public interest and equities lie with allowing young men and women who are qualified and willing to serve our Nation to do so.”

Karnoski v. Trump (U.S. District Court for the Western District of Washington)

On December 11, 2017, Judge Marsha Pechman granted the plaintiffs’ motion for a preliminary injunction, preventing implementation of the August 25 presidential memorandum. On March 29, 2018, the defendants moved to dissolve the preliminary injunction, claiming the March 23, 2018 presidential memorandum and the Mattis Implementation Plan reflected a sufficient change from the original policy to moot the case. On April 13, Judge Pechman denied the motion, concluding, as had Judge Kollar-Kotelly, that the “new” policy was substantially the same as the initial ban and that the analysis supporting the preliminary injunction accordingly remained valid. Unlike Judge Kollar-Kotelly, Judge Pechman declined to dismiss Trump as a defendant and allowed claims for declaratory relief to go forward against him.

Each of the claims raised by Plaintiffs and [intervenor the state of Washington] remains viable. The Court also rules that, because transgender people have long been subjected to systemic oppression and forced to live in silence, they are a protected class. Therefore, any attempt to exclude them from military service will be looked at with the highest level of care, and will be subject to the Court’s “strict scrutiny.” This means that before Defendants can implement the Ban, they must show that it was sincerely motivated by compelling interests, rather than by prejudice or stereotype, and that it is narrowly tailored to achieve those interests.

The case continues forward on the issue of whether the Ban is well-supported by evidence and entitled to deference, or whether it fails as an impermissible violation of constitutional rights.

The defendants filed an appeal of the decision with the U.S. Court of Appeals for the Ninth Circuit, and submitted requests for a stay of the preliminary injunction pending resolution of the appeal to both Judge Pechman and the Ninth Circuit. The stay, if granted, would have allowed the March 23 memorandum and Mattis Implementation Plan to go into effect. Judge Pechman denied the request on June 15. On July 19, a panel of the Ninth Circuit likewise declined to order a stay, stating that a “stay pending appeal is an intrusion into the ordinary processes of administration and judicial review” (internal quotation marks omitted). Such an intrusion was not proper under the circumstances, the court held, because the stay “would upend, rather than preserve, the status quo,” in which transgender service members are able “to serve in the military in their preferred gender and receive transition-related care.” The appeal is set to be argued in October 2018.

Meanwhile, proceedings continue in the district court. On July 27 Judge Pechman granted the plaintiffs’ motion to compel the defendants to turn over discovery previously withheld on grounds of “deliberative process privilege,” and denied the defendants’ motion for a protective order. Beginning the discussion, the judge briefly addressed the defendants’ supplemental authority filing claiming that the strongly deferential position adopted by the Supreme Court in Trump v. Hawaii should be mirrored in this case and should preclude discovery directed to the president. (The defendants submitted Hawaii v. Trump as a supplemental, relevant authority in each of the four cases after the release of the Supreme Court’s opinion.) Judge Pechman rejected the analogy on the grounds that “Hawaii involved an entirely different standard of scrutiny,” “the majority in Hawaii repeatedly emphasized that the exclusion policy was formulated following a “worldwide, multi-agency review,” and “Hawaii does not purport to address the scope of discovery or the application of any privilege.”

She also denied the applicability of the deliberative process privilege to the materials withheld by the defendants. The privilege protects “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. For the privilege to apply, a document must be (1) predecisional, meaning that it was generated before the adoption of an agency’s policy or decision, and (2) deliberative, meaning that it contains opinions, recommendations, or advice about agency policies.” (Internal citations and quotation marks omitted). Furthermore, the privilege is not absolute and may be overridden in the interest of permitting accurate fact-finding. Relevant factors in that analysis include “(1) the relevance of the evidence; (2) the availability of other evidence; (3) the government’s role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.” All of those factors, Judge Pechman assessed, weigh in favor of disclosure. Consequently, “the deliberative process privilege deliberative process privilege does not apply in this case” and the defendants must turn over the requested documents.

Last, Judge Pechman denied the defendants’ motion for a protective order precluding discovery directed at Trump specifically. She acknowledged that “[t]he Supreme Court has recognized that discovery directed at the President involves special considerations, and that his constitutional responsibilities and status are factors counseling judicial deference and restraint in the conduct of litigation against him,” but stressed that, “[n]evertheless, the President is not immune from civil discovery.” Presidential privilege “is qualified, not absolute, and can be overcome by an adequate showing of need”; “[i]f the Court finds that an adequate showing has been demonstrated… it may then proceed to review the documents in camera to excise non-relevant material.” Despite being previously instructed by the district court to do so, “[t]o date, President Trump and his advisors have failed to invoke the presidential communications privilege, to respond to a single discovery request, or to produce a privilege log identifying the documents, communications, and other materials they have withheld.” Consequently, Judge Pechman found that the president had failed to carry his burden by “demonstrate[ing] that he need not invoke the presidential communications privilege,” and was not entitled to a protective order.

On July 31, the defendants filed a motion to stay Judge Pechman’s July 27 order, informing the court that they planned to appeal the decision. A stay pending resolution of their petition for a writ of mandamus was necessary, the government argued, because “the Court’s Order will require the Sitting President of the United States and DoD to disclose tens of thousands of privileged documents and revised privilege logs containing thousands of entries in 10 days. In addition, the Court should not allow discovery against the sitting President to continue while issues that may redefine the scope of litigation are currently on appeal.”

The plaintiffs responded on Aug. 8, requesting that Judge Pechman deny the stay and claiming that “Defendants eschewed alternative avenues of relief, such as asking for an extension of the Court’s ten day compliance deadline … [because] Defendants again hope to grind this case to a halt as they re-litigate meritless arguments on appeal.” They also argued that the defendants do not qualify for a stay because they are unlikely to succeed in obtaining mandamus, there was no clear error in Judge Pechman’s ruling, and they will not suffer irreparable harm by complying with the July 27 order. Nevertheless, the plaintiffs proposed extending the compliance deadline until Oct. 10, when the Ninth Circuit will hear the defendants’ appeal, so long as the government uses the extra time to attempt in good faith to comply with Pechman’s order by preparing updated logs and gathering the currently-withheld documents for production depending on the outcome of the appeal.

In their Aug. 10 reply, the defendants reiterated their position that the discovery order should be stayed until the Ninth Circuit resolves the appeal. While the plaintiffs “in fact will suffer no harm at all” from a stay, the government argued, complying with the order would impose “heavy burdens on both the President and DoD resulting from the revision of voluminous privilege logs and the production of thousands of deliberative documents concerning military policies—the exact type of burdens that the executive privilege and military deference doctrines are intended to avoid.”

Judge Pechman is due to issue a ruling on the motion soon.

Stockman v. Trump (U.S. District Court for the Central District of California)

On July 30, Judge Jesus Bernal heard oral argument on the defendants’ motion to dissolve the preliminary injunction. He has not yet issued a ruling. The hearing doubled as a scheduling conference, during which Judge Bernal set the trial schedule for the case:

• November 5, 2018: Amended pleadings due.
• February 25, 2019: Initial expert disclosure due.
• March 11, 2019: Rebuttal expert disclosure due.
• March 25, 2019: Discovery cut-off.
• April 22, 2019: Last date to conduct a settlement conference.
• June 3, 2019: Motions due.
• July 15, 2019: Final pretrial conference.
• July 20, 2019: Jury trial begins.

In the interim, the case has been referred to Magistrate Judge Kenly Kiya Kato for any settlement-related proceedings.

Stone v. Trump (U.S. District Court for the District of Maryland)

On July 10, Judge George Russell replaced Judge Marvin Garbis on the case. Currently pending before the court in Stone are defense motions to dismiss for failure to state a claim and for lack of jurisdiction and a motion for summary judgment, as well as the plaintiffs’ cross-motion for summary judgment and opposition to the defendants’ motions. The arguments on both sides largely mirror those discussed earlier in this post.