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Doe v. Trump

United States District Court, District of Columbia

October 30, 2017

JANE DOE 1, et al., Plaintiffs
DONALD J. TRUMP, et al., Defendants



         On July 26, 2017, President Donald J. Trump issued a statement via Twitter announcing that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” A formal Presidential Memorandum followed on August 25, 2017. Before the Presidential Memorandum, the Department of Defense had announced that openly transgender individuals would be allowed to enlist in the military, effective January 1, 2018, and had prohibited the discharge of service members based solely on their gender identities. The Presidential Memorandum reversed these policies. First, the Memorandum indefinitely extends a prohibition against transgender individuals entering the military, a process formally referred to as “accession” (the “Accession Directive”). Second, the Memorandum requires the military to authorize, by no later than March 23, 2018, the discharge of transgender service members (the “Retention Directive”).

         The Department of Defense is required to submit a plan implementing the directives of the Presidential Memorandum by February 21, 2018. On September 14, 2017, Secretary of Defense James Mattis promulgated Interim Guidance establishing Department of Defense policy toward transgender service members until the directives of the Presidential Memorandum take effect. Pursuant to the Presidential Memorandum and the Interim Guidance, the protections afforded to transgender service members against discharge lapse early next year.

         Plaintiffs are current and aspiring service members who are transgender. Many have years of experience in the military. Some have decades. They have been deployed on active duty in Iraq and Afghanistan. They have and continue to serve with distinction. All fear that the directives of the Presidential Memorandum will have devastating impacts on their careers and their families. They have moved the Court to enjoin the directives of the Presidential Memorandum, believing that these directives violate the fundamental guarantees of due process afforded by the Fifth Amendment to the United States Constitution. Defendants have moved to dismiss this case, principally on the basis that the Court lacks jurisdiction. Although highly technical, these jurisdictional arguments reduce to a few simple points: the Presidential Memorandum has not effected a definitive change in military policy; rather, that policy is still subject to review; until that review is complete, transgender service members are protected; and any prospective injuries are too speculative to require judicial intervention.

         These arguments, while perhaps compelling in the abstract, wither away under scrutiny. The Memorandum unequivocally directs the military to prohibit indefinitely the accession of transgender individuals and to authorize their discharge. This decision has already been made. These directives must be executed by a date certain, and there is no reason to believe that they will not be executed. Plaintiffs have established that they will be injured by these directives, due both to the inherent inequality they impose, and the risk of discharge and denial of accession that they engender. Further delay would only serve to harm the Plaintiffs. Given these circumstances, the Court is in a positon to preliminarily adjudicate the propriety of these directives, and it does so here.

         The Court holds that Plaintiffs are likely to succeed on their Fifth Amendment claim. 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 are subject to a fairly searching form of scrutiny. Plaintiffs claim that the President's directives cannot survive such scrutiny because they are not genuinely based on legitimate concerns regarding military effectiveness or budget constraints, but are instead driven by a desire to express disapproval of transgender people generally. The Court finds that a number of factors- including the sheer 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 do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself-strongly suggest that Plaintiffs' Fifth Amendment claim is meritorious.

         Accordingly, following an exhaustive review of the record, the pleadings, [1] and the relevant authorities, the Court GRANTS-IN-PART and DENIES-IN-PART Plaintiffs' Motion for Preliminary Injunction. Defendants shall be preliminarily enjoined from enforcing the Accession and Retention Directives, corresponding with sections 1(b) and 2(a) of the Presidential Memorandum, until further order of the Court or until this case is resolved. The effect of the Court's Order is to revert to the status quo with regard to accession and retention that existed before the issuance of the Presidential Memorandum-that is, the retention and accession policies established in a June 30, 2016 Directive-type Memorandum and later modified by Secretary of Defense James Mattis on June 30, 2017.

         The Court also GRANTS-IN-PART and DENIES-IN-PART Defendants' Motion to Dismiss. The Court has jurisdiction over and reaches the merits of Plaintiffs' Fifth Amendment claim as it pertains to the Accession and Retention Directives. Plaintiffs have also challenged the Presidential Memorandum's prohibition against the expenditure of military resources on sex reassignment surgeries. Because no Plaintiff has established a likelihood of being impacted by that prohibition, the Court lacks jurisdiction to adjudicate the propriety of this directive. Finally, Plaintiffs have also claimed relief under a theory of estoppel. At this time, that claim will be dismissed without prejudice because the Amended Complaint lacks allegations of the sort of particularized representations, reliance, or government misconduct that could justify estoppel against the government. Plaintiffs may file a further amended complaint with respect to estoppel.

         I. BACKGROUND

         A. The Military's Policy Toward Transgender Service

         1. Military Policy Prior to 2014

         Accession Prior to 2014, Department of Defense Instruction (“DODI”) 6130.03 “contain[ed] a list of disqualifying physical and mental conditions that preclude[d] applicants from joining the military . . . .” Lamb Decl., Ex. B (Palm Center Report of the Transgender Service Commission), at 7. Disqualifying conditions included “defects of the genitalia including but not limited to change of sex, ” and “[c]urrent or history of psychosexual conditions, including but not limited to transsexualism, . . . transvestism, . . . and other paraphilias.” Id.; see also Defs.' Mem. at 4 (“For decades, [disqualifying] conditions [under DODI 6130.03] have included ‘transsexualism.'”).

         DODI 6130.03 also requires that the “Secretaries of the Military Departments and Commandant of the Coast Guard shall . . . [a]uthorize the waiver of the standards in individual cases for applicable reasons and ensure uniform waiver determinations.” Lamb Decl., Ex. B, at 7. Service-specific implementing rules set forth the waiver process for each branch of the military. For example, under the applicable Army regulations, “[e]xaminees initially reported as medically unacceptable by reason of medical unfitness . . . may request a waiver of the medical fitness standards in accordance with the basic administrative directive governing the personnel action.” Army Reg. 40-501 (Standards of Medical Fitness), ¶ 1-6(b); see also Lamb Decl., Ex. B, at 7. Although Defendants contend that transgender-related conditions were and remain subject to waiver, see Defs.' Mem. at 4, evidence in the record suggests otherwise. At least under the pertinent regulations as they existed prior to 2014, “because some conditions related to transgender identity [were] grounds for discharge, and because recruiters [could not] waive a condition upon enlistment that would be disqualifying for retention, transgender individuals [could not] obtain medical waivers for entrance into the military.” Lamb Decl., Ex. B, at 8. A March 2014 report was unable to find “any instances in which transgender-related conditions have been waived for accession[, ]” id., and Defendants have adduced no evidence of waivers ever being granted for this purpose.


         Pertinent regulations prior to 2014 also appear to have provided military commanders with discretion to separate enlisted personnel for transgender-related conditions. In particular, DODI 1332.14, which “controls administrative separations for enlisted persons, ” provided that a “service member may be separated for the convenience of the government and at the discretion of a commander for ‘other designated physical or mental conditions, ' a category defined to include ‘sexual gender and identity disorders.'” Lamb Decl., Ex. B, at 8. Furthermore, DODI 1332.38, “which contains rules for retiring or separating service members because of physical disability” provided that “service members with conditions ‘not constituting a physical disability' . . . can be separated administratively from military service at a commander's discretion, without the opportunity to demonstrate medical fitness for duty or eligibility for disability compensation.” Id. This category of conditions, under prior iterations of the instruction, included “Sexual Gender and Identity Disorders, including Sexual Dysfunctions and Paraphilias.” Id.

         2. August 2014 Regulation and July 28, 2015 Memorandum

         At least with respect to retention, changes to this regulatory scheme were first enacted in August 2014, when “the Department of Defense issued a new regulation, DODI 1332.18, Disability Evaluation System (DES).” Fanning Decl. ¶ 12. According to Former Secretary of the Army Eric K. Fanning and Former Secretary of the Air Force Deborah Lee James, the new regulation

eliminated 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. This new regulation instructed each branch of the Armed Forces to reassess whether disqualification based on these conditions, including the ban on service by transgender persons, was justified. As of August 2014, there was no longer a DoD-wide position on whether transgender persons should be disqualified for retention.

Id. (emphasis added); James Decl. ¶ 8.

         Subsequently, on July 28, 2015, then-Secretary of Defense Ash Carter issued a memorandum to the secretaries of the military departments directing that “[e]ffective as of July 13, 2015, no Service member shall be involuntarily separated or denied reenlistment or continuation of active or reserve service on the basis of their gender identity, without the personal approval of the Under Secretary of Defense for Personnel and Readiness.” Carson Decl., Ex. A. The memorandum further ordered the Undersecretary of Defense for Personnel and Readiness to “chair a working group composed of senior representatives from each of the Military Departments, Joint Staff, and relevant components from the Office of the Secretary of Defense to formulate policy options for the DoD regarding the military service of transgender Service members.” Id.

         3. The Working Group and the RAND Report

         The working group convened by the Undersecretary (“the Working Group”) consisted of senior uniformed officers and senior civilian officers from each department of the military. Carson Decl. ¶ 9. The Working Group sought to identify any possible issues related to open military service of transgender individuals. Id. ¶ 22. It considered a broad range of information provided by senior military personnel, various types of experts, health insurance companies, civilian employers, transgender service members themselves, and representatives from the militaries of other nations who allow open service by transgender people. Id. ¶ 10. Finally, the Working Group commissioned the RAND Corporation's National Defense Research Institute to conduct a study on the impact of permitting transgender service members to serve openly. Id. ¶ 11. RAND is a nonprofit research institution that provides research and analysis to the Armed Services. Id.

         The RAND Corporation subsequently issued a 91-page report entitled “Assessing the Implications of Allowing Transgender Personnel to Serve Openly.” Carson Decl., Ex. B (“RAND Report”). The RAND Report found no evidence that allowing transgender individuals to serve would have any effect on “unit cohesion, ” and concluded that any related costs or impacts on readiness would be “exceedingly small, ” “marginal” or “negligible.” Id. at xi-xii, 39-47, 69-70. The RAND Report also found that “[i]n no case” where foreign militaries have allowed transgender individuals to serve “was there any evidence of an effect on the operational effectiveness, operational readiness, or cohesion of the force.” Id. at xiii.

         Based on all of the information it collected, the Working Group unanimously concluded that transgender people should be allowed to serve openly in the military. Not only did the group conclude that allowing transgender people to serve would not significantly affect military readiness or costs, it found that prohibiting transgender people from serving undermines military effectiveness and readiness because it excludes qualified individuals on a basis that has no relevance to one's fitness to serve, and creates unexpected vacancies requiring expensive and time-consuming recruitment and training of replacements.[2]

         The Working Group communicated its conclusion to the Secretary of Defense, along with detailed recommendations for policies and procedures for open transgender service.

         4. June 30, 2016 Directive-Type Memorandum 16-005

         On June 30, 2016, the Secretary of Defense Ash Carter issued a Directive-type Memorandum (“DTM”) establishing a policy, assigning responsibilities, and prescribing procedures for “the retention, accession, separation, in-service transition and medical coverage for transgender personnel serving in the Military Services.” James Decl., Ex. B, at 1. The DTM took effect immediately. Id. In the DTM, the Secretary of Defense stated his conclusion that open service by transgender Americans was “consistent with military readiness and with strength through diversity.” Id. at 2. Accordingly, the DTM stated that it was the policy of the Department of Defense that “service in the United States military should be open to all who can meet the rigorous standards for military service and readiness” and that, “consistent with the policies and procedures set forth in [the DTM], transgender individuals shall be allowed to serve in the military.” Id.


         The DTM set forth procedures for the retention and accession of transgender military service members. It stated that “[e]ffective immediately, no otherwise qualified Service member may be involuntarily separated, discharged or denied reenlistment or continuation of service, solely on the basis of their gender identity, ” or on their “expressed intent to transition genders.” James Decl., Ex. B, Attach. (Procedures), at 1. The DTM stated that “Transgender Service members will be subject to the same standards as any other Service member of the same gender; they may be separated, discharged, or denied reenlistment or continuation of service under existing processes and basis, but not due solely to their gender identity or an expressed intent to transition genders.” Id.


         With respect to accession procedures, the DTM stated that by no later than July 1, 2017, DODI 6130.03 would be updated to allow for the accession of (i) individuals with gender dysphoria, (ii) individuals that have received medical treatment for gender transition, and (iii) individuals that have undergone sex reassignment surgeries. Id. at 1-2. The policies and procedures generally provided that these conditions would be disqualifying unless the acceding service member was medically stable in their chosen gender for at least 18 months. Id. The DTM also provided that, effective October 1, 2016, the Department of Defense would “implement a construct by which transgender Service members may transition gender while serving.” Id. at 2.

         Equal Opportunity

         Finally, the DTM stated that it is “the Department's position, consistent with the U.S. Attorney General's opinion, that discrimination based on gender identity is a form of sex discrimination.” Id. at 2.

         5. June 30, 2016 Remarks by Secretary of Defense Ash Carter

         On June 30, 2016, then-Secretary of Defense Ash Carter announced from the Pentagon briefing room that “we are ending the ban on transgender Americans in the United States military.” Lamb Decl., Ex. F. He stated that “[e]ffective immediately, transgender Americans may serve openly, and they can no longer be discharged or otherwise separated from the military just for being transgender.” Id. Secretary Carter also announced that he had “directed that the gender identity of an otherwise qualified individual will not bar them from military service, or from any accession program.” Id. The Secretary stated that on June 30, 2017, after a year-long implementation period, “the military services will begin acceding transgender individuals who meet all standards-holding them to the same physical and mental fitness standards as everyone else who wants to join the military.” Id.

         Secretary Carter gave three reasons for the Department's decision. First, he stated that “the Defense Department and the military need to avail ourselves of all talent possible in order to remain what we are now-the finest fighting force the world has ever known.” Id. He added that “[w]e invest hundreds of thousands of dollars to train and develop each individual, and we want to take the opportunity to retain people whose talent we've invested in and who have proven themselves.” Id. Second, he stated that “the reality is that we have transgender service members serving in uniform today, ” and they and their commanders need “clearer and more consistent guidance than is provided by current policies.” Id. And third, he stated that, as a matter of principle, “Americans who want to serve and can meet our standards should be afforded the opportunity to come to do so.” Id.

         6. September 30, 2016 Publication of “Transgender Service in the U.S. Military: An Implementation Handbook” and Military Department Policies

         Consistent with the directives of Secretary Carter in his July 2015 memorandum and June 2016 memorandum and policy announcement, Acting Undersecretary of Defense for Personnel and Readiness Peter Levine published an “implementation handbook” entitled “Transgender Service in the U.S. Military.” Mabus Decl., Ex. F; see also James Decl., Ex. D. The document was “the product of broad collaboration among the Services” and was intended to serve as a “practical day-to-day guide” to assist Service members and commanders to understand and implement the policy of open transgender military service. James Decl., ¶ 34. The handbook is a lengthy, exhaustive document, providing an explanation of the basics of what it means to be transgender and to undergo gender transition; guidance on how transgender service members can request an in-service transition and communicate with their leadership about their transition process; and guidance for commanders interacting with transgender service members. It also includes extensive question-and-answer and hypothetical scenario sections, as well as a “roadmap” for gender transition for military personnel.

         Individual implementing memoranda were subsequently issued by the branches of the Armed Forces. On November 4, 2016, the Secretary of the Navy issued SECNAV Instruction 1000.11, the stated purpose of which was to “establish Department of Navy . . . policy for the accession and service of transgender Sailors and Marines, to include the process for transgender Service Members to transition gender in-service.” Mabus Decl., Ex. D, at 1. The memorandum stated that “transgender individual shall be allowed to serve openly in the [Department of the Navy].” Id. at 2.

         The Air Force issued a Policy Memorandum on October 6, 2016, which stated that “[i]t is Air Force policy that service in the United States Air Force should be open to all who can meet the rigorous standards for military service and readiness. Consistent with the policies set forth in this memorandum, transgender individuals shall be allowed to serve in the Air Force.” James Decl., Ex. C.

         The Army issued Directive 2016-30 (Army Policy on Military Service of Transgender Soldiers) on July 1, 2016. Fanning Decl., Ex. D. The Directive stated that

it is Army policy to allow open service by transgender Soldiers. The Army is open to all who can meet the standards for military service and remains committed to treating all Soldiers with dignity and respect while ensuring good order and discipline. Transgender Soldiers will be subject to the same standards as any other Soldier of the same gender. An otherwise qualified Soldier shall not be involuntarily separated, discharged, or denied reenlistment or continuation of service solely on the basis of gender identity.

Id. at 1.

         Army Directive 2016-35 was promulgated on October 7, 2016. Fanning Decl., Ex. E. It stated that “The Army allows transgender Soldiers to serve openly.” Id. at 1.

         7. June 30, 2017 Press Release by Secretary James Mattis

         On June 30, 2017, Secretary of Defense James Mattis deferred acceding transgender applicants into the military until January 1, 2018, stating that the “services will review their accession plans and provide input on the impact to the readiness and lethality of our forces.” Lamb Decl., Ex. C.

         8. July 26, 2017 Statement by President Donald J. Trump

         On July 26, 2017, President Donald J. Trump issued a statement via Twitter, in which he announced that[3]

         (Image Omitted)

         9. August 25, 2017 Presidential Memorandum

         On August 25, 2017, President Trump issued a memorandum entitled “Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security.” Lamb Decl., Ex. A (the “Presidential Memorandum”). The memorandum begins by stating that until “June 2016, the Department of Defense (DoD) and the Department of Homeland Security (DHS) (collectively, the Departments) generally prohibited openly transgender individuals from accession into the United States military and authorized the discharge of such individuals.” Presidential Memorandum § 1(a). According to the memorandum, “[s]hortly before President Obama left office, . . . his Administration dismantled the Departments' established framework by permitting transgender individuals to serve openly in the military, authorizing the use of the Departments' resources to fund sex-reassignment surgical procedures, and permitting accession of such individuals after July 1, 2017.” Id. The President stated that “the previous Administration failed to identify a sufficient basis to conclude that terminating the Departments' longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year's policy change would not have those negative effects.” Id.

         The memorandum has two operative sections, one general, and the other more specific. Section 1(b) directs “the Secretary of Defense, and the Secretary of Homeland Security with respect to the U.S. Coast Guard, to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above.” Id. § 1(b). As already stated, the memorandum defines the pre-June 2016 policy as one under which the military “generally prohibited openly transgender individuals from accession into the United States military and authorized the discharge of such individuals.” Id. § 1(a). The directive set forth in section 1(b) takes effect on March 23, 2018. Id. § 3. The memorandum provides that the “Secretary of Defense, after consulting with the Secretary of Homeland Security, may advise [the President] at any time, in writing, that a change to this policy is warranted.” Id. § 1(b).

         Section 2 contains two specific directives to the Secretary of Defense and the Secretary of Homeland Security. First, section 2(a) directs the Secretaries to “maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018, until such time as the Secretary of Defense, after consulting with the Secretary of Homeland Security, provides a recommendation to the contrary that [the President finds] convincing . . . .” Id. § 2(a). This section takes effect on January 1, 2018. Id.

         Second, section 2(b) directs the Secretaries to “halt all use of DoD or DHS resources to fund sex reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.” Id. § 2(b). This section, like section 1(b), takes effect on March 23, 2018. Id. § 3.

         By February 21, 2018, the Secretaries must submit a plan to the President “for implementing both the general policy set forth in section 1(b) of this memorandum and the specific directives set forth in section 2 of this memorandum.” Id. § 3. This implementation plan must “determine how to address transgender individuals currently serving in the United States military.” Id. Until that determination is made-and it must be made as part of the implementation plan, which must be submitted by February 21, 2018-“no action may be taken against such individuals under the policy set forth in section 1(b) of this memorandum.” Id.

         That is, only after February 21, 2018, may the Secretaries take actions toward reverting to the pre-June 2016 policy, which by the terms of the memorandum is a policy under which the military “generally prohibited openly transgender individuals from accession into the United States military and authorized the discharge of such individuals.” Id. § 1(a).

         Retention Directive

         In sum, by March 23, 2018, the Secretaries are required by the plain text of the President's directive to revert to a policy under which the military “authorized the discharge of [transgender] individuals.” Id. §§ 1(a), 1(b), 3. The protections of the memorandum with respect to discharge and other adverse action expire on February 21, 2018. Id. § 3.

         Accession Directive

         With respect to accession, the memorandum indefinitely delays the implementation of the accession policy of the June 2016 DTM, which was previously set for implementation on January 1, 2018, and by March 23, 2018, requires the Secretaries to revert to a policy by which the military “generally prohibit[s] openly transgender individuals from accession . . . .” Id. §§ 1(a), 1(b), 2(a), 3.

         10. August 29, 2017 Statement by Secretary Mattis

         On August 29, 2017, Secretary Mattis issued a statement concerning the Presidential Memorandum. Lamb Decl., Ex. D. He wrote that “[t]he [Department of Defense] will carry out the president's policy direction, in consultation with the Department of Homeland Security, ” and that “[a]s directed, ” the Department of Defense will “develop a study and implementation plan, which will contain the steps that will promote military readiness, lethality, and unit cohesion, with due regard to budgetary constraints and consistent with applicable law.” Id. The plan, Secretary Mattis wrote, “will address accessions of transgender individuals and transgender individuals currently serving in the United States military.” Id. Secretary Mattis stated that he would “establish a panel of experts serving within the Departments of Defense and Homeland Security to provide advice and recommendations on the implementation of the president's direction.” Id. After the “panel reports its recommendations and following . . . consultation with the secretary of Homeland Security, ” Secretary Mattis “will provide [his] advice to the president concerning implementation of his policy direction.” Id. In the interim, “current policy with respect to currently serving members will remain in place.” Id.

         11. September 14, 2017 Interim Guidance

         On September 14, 2017, Secretary Mattis issued interim guidance that took “effect immediately and will remain in effect until [he] promulgate[s] DoD's final policy in this matter.” Defs.' Mem., ECF No. 45, Ex. 1 (“Interim Guidance”). The Interim Guidance states that “[n]ot later than February 21, 2018, [Secretary Mattis] will present the President with a plan to implement the policy and directives in the Presidential Memorandum.” Id. at 1. The “implementation plan will establish the policy, standards and procedures for transgender individuals serving in the military.” Id.


         With respect to accession, the Interim Guidance provides that the procedures previously set forth in a 2010 policy instruction, “which generally prohibit the accession of transgender individuals into the Military Services, remain in effect . . . .” Id. at 2.

         Medical Care and Treatment

         With respect to medical care and treatment, the Interim Guidance provides that “[s]ervice members who receive a gender dysphoria diagnosis from a military medical provider will be provided treatment for the diagnosed medical condition, ” but that “no new sex reassignment surgical procedures for military personnel will be permitted after March 22, 2018, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.” Id.


         With respect to the separation or retention of transgender service members, the Interim Guidance provides that “[a]n otherwise qualified transgender Service member whose term of service expires while this Interim Guidance remains in effect, may, at the Service member's request, be ...

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