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Posts Tagged ‘President Donald J. Trump’

Trump Administration Issues New Transgender Military Policy, Attempting To Sidetrack Lawsuits

Posted on: March 26th, 2018 by Art Leonard No Comments

In a move intended to evade existing preliminary injunctions while reaffirming in its essential elements President Trump’s Twitter announcement from last July categorically prohibiting military service by transgender individuals, the Administration issued three new documents on Friday afternoon, March 23, the date that the President had designated in an August 2017 Memorandum for his announced policy to take effect.  A new Presidential Memorandum “revoked” Trump’s August Memo and authorized the Defense and Homeland Security Secretaries to “implement any appropriate policies concerning military service by transgender individuals.”  At the same time, Department of Justice (DOJ) attorneys filed with the federal court in Seattle copies of Defense Secretary James Mattis’s Memorandum to the President and a Department of Defense (DOJ) working group’s “Report and Recommendations” that had been submitted to the White House on February 23, in which Mattis recommended a version of Trump’s transgender ban that would effectively preclude military service for many, perhaps most, transgender applicants and some of those already serving, although the number affected was not immediately clear.

 

Mattis’s recommendation drew a distinction between transgender status and the “medical condition” of gender dysphoria, as defined in the psychiatric diagnostic manual (DSM) generally cited as authoritative in litigation.  Mattis is willing to let transgender people enlist unless they have been diagnosed with gender dysphoria, which the Report characterizes, based heavily on subjective assertions rather than any evidence, as a condition presenting undue risks in a military environment.  Transgender people can enlist if they do not desire to transition and are willing to conform to all military requirements consistent with their biological sex as designated at birth.  Similarly, transgender people currently serving who have not been diagnosed with gender dysphoria can serve on the same basis: that they comply with all requirements for service members of their biological sex.  However, people with a gender dysphoria diagnosis are largely excluded from enlistment or retention, with some individual exceptions, although those currently serving who were diagnosed after the Obama Administration lifted the transgender ban on June 30, 2016, are “exempted” from these exclusions and may serve while transitioning and after transitioning consistent with their gender identity.  (This is pragmatically justified by the investment the military has made in their training, and is conditioned on their meeting all military performance requirement for those in their desired gender presentation.)  Under the recommended policy, Defense Department transition-related health coverage will continue to be available for this “grandfathered” group, but for no others.

 

The March 23 document release took place just days before attorneys from Lambda Legal and the DOJ were scheduled to appear on March 27 in U.S. District Judge Marsha Pechman’s Seattle federal courtroom to present arguments on Lambda’s motion for summary judgment in Karnoski v. Trump, one of the four pending legal challenges to the policy. Lambda’s motion, filed in January, was aimed at Trump’s July tweet and August Memorandum, although it anticipated that the Administration would attempt to come up with some sort of documents to fill the fatal gap identified by four federal district judges when they issued preliminary injunctions last fall: Trump’s unilateral actions were not based on any sort of “expert military judgment,” but rather on his short-term political need to win sufficient Republican votes in the House to pass a then-pending Defense Department spending measure.

 

Based on the obvious conclusion that Trump’s policy was not based on “expert military judgment,” the courts refused to accord it the usual deference that federal courts accord to military regulations and rules when they are challenged in court. Indeed, the only in-depth military study on the subject was that carried out over a period of years by the Obama Administration before it lifted the transgender service ban formally on June 30, 2016, while delaying implementation of new accession standards for transgender enlistees for a year. (Mattis later extended that deadline an additional six months to January 1, 2018.)  With no factual backup, Trump’s across-the-board ban was highly vulnerable to constitutional challenge in light of recent federal court rulings that gender identity discrimination is a form of sex discrimination.  Policies that discriminate because of sex are treated by courts as presumptively unconstitutional, putting the government to the burden of showing that they substantially advance an important government interest, and demanding “exceedingly persuasive” proof.  The “Report and Recommendations” filed in Judge Pechman’s court were clearly devised to attempt to fill that evidentiary gap, despite their disclaimer that the group assembled to study the issues and report their recommendations to Mattis and the President were tasked with an objective policy review.

 

The White House document dump ignited a host of questions. There was no clarity about when the “new” policies recommended by Mattis were intended to go into effect (their implementation would require rewriting and formal adoption in the form of regulations), and there were many questions about how transgender people currently serving would be affected.  Defense Department spokespersons said that the Pentagon would abide by federal law, which at present consists of the preliminary injunctions against the policies announced by Trump last summer, which were supposed to go into effect on March 23, 2018, if they had not been blocked by the courts.

 

Since the preliminary injunctions were all aimed at last summer’s tweets and August Memorandum, were they rendered moot by Trump’s revocation of those policy announcements? Or would the courts see the proposed new policy as essentially a continuation of what Trump had initiated, and thus covered by the preliminary injunctions?  The district judges had all denied requests by the government to stay these injunctions, and two courts of appeals had refused to stay those issued by the judges in Baltimore and Washington, D.C., leading DOJ to desist from seeking a stay of the Seattle and Riverside, California, injunctions.  Complying with those injunctions, the Pentagon allowed transgender people to begin applying to enlist in January, and announced that at least one transgender applicant had completed the enlistment process by February.  Arguably, the preliminary injunctions would apply to any policy of excluding transgender people from military service pending a final resolution of these cases, giving them a broad reading consistent with their analysis of the underlying issues.

 

In a signal of what was coming, DOJ attorneys stoutly combatted the plaintiffs’ demand in the Seattle case for disclosure of the identity of “generals and military experts” with whom Trump claimed in his July tweets to have consulted before announcing his categorical ban, arguing that after Mattis made his recommendation in February, DOJ would not be defending the policy announced in the summer but rather whatever new policy the President decided to announce, relying upon Mattis’ “expert military judgment” and whatever documentation was provided to support it. That led to a series of confrontations over the discovery demand, producing two written opinions by Judge Pechman ordering DOJ to come up with the requested information, and at last provoking a questionable claim of Executive Privilege protecting the identity of those consulted by Trump.  This waited to be resolved at the March 27 hearing as well.

 

The Administration’s strategic moves on March 23 appeared intended to change the field of battle in the pending lawsuits. When they were originally filed, they had a big fat target in Trump’s unilateral, unsupported actions.  By revoking his August Memorandum and “any other directive I may have made” (that is, the tweets from July), Trump sought to remove that target and replace it with a new, possibly more defensible one: a policy recommended and eventually adopted as “appropriate” by Mattis based on his “expert military judgment” in response to the recommendation of his study.  Clearly, the Administration was aiming to be able to rely on judicial deference to avoid having to defend the newly-announced policy on its constitutional merits.

 

The big lingering question is whether the courts will let them get away with this. The policy itself suffers from many of the same constitutional flaws as the one it replaces, but the “Report and Recommendations” – cobbled together in heavy reliance on the work of dedicated opponents to transgender military service – has at least the veneer and trappings of a serious policy review.  The plaintiffs in the existing lawsuit will now need to discredit it in the eyes of the courts, painting it as the litigation advocacy document that it obviously is.

 

Mark Joseph Stern, in a detailed dissection published in “Slate ” shortly after the document release, credited Administration sources with revealing that the process of producing the report had been taken over by Vice President Pence and Heritage Foundation personnel who have been producing articles opposing transgender rights in a variety of contexts. According to Stern’s report, Mattis was opposed to reinstating the transgender ban, but was overruled by the White House and is reacting as a soldier to the dictates of his Commander in Chief, unwilling to spend political capital on this issue.  Tellingly, the Report itself does not provide the names of any of those responsible for its actual composition, setting up a new discovery confrontation between the plaintiffs and DOJ.

 

Some are predicting that the new policy will never go into effect. If the courts refuse to be bamboozled by the façade of reasoned policy-making now presented by the Administration, those predictions may be correct.

Two Federal Judges Deal Setbacks to Trump’s Transgender Military Ban

Posted on: December 11th, 2017 by Art Leonard No Comments

Federal district judges on opposite coasts dealt setbacks to President Donald J. Trump’s anti-transgender military policy on December 11.  U.S. District Judge Colleen Kollar-Kotelly of the District Court in Washington, D.C., rejected a motion by the Justice Department in Doe v. Trump to stay her preliminary injunction that requires the Defense Department to allow transgender people to apply to join the service beginning January 1, 2018.  And U.S. District Judge Marsha J. Pechman refused to dismiss the complaint in Karnoski v. Trump, a lawsuit challenging the anti-transgender service ban, while granting the plaintiffs’ motion for a preliminary injunction against implementation of the policy.  Also on December 11, U.S. District Judge Jesus G. Bernal in Los Angeles heard arguments in support of a motion for preliminary injunction in Stockman v. Trump, a fourth lawsuit challenging the ban.

Judge Kollar-Kotelly’s decision was predictable, given her October 30 ruling granting the preliminary injunction and a more recent ruling “clarifying,” at the request of the Justice Department, that she really intended to require the Defense Department to allow transgender individuals to begin enlisting on January 1.  The Justice Department incredibly claimed that this January 1 deadline created an emergency situation, but their argument was significantly undercut by reports last week that the Pentagon had, in response to the judge’s earlier Order, put into motion the steps necessary to comply.

In support of its motion for a stay, DOJ presented a “declaration” from Acting Deputy Assistant Secretary of Defense for Military Personnel Policy Lernes J. Hebert, who claimed that implementing the court’s order on January 1 would “impose extraordinary burdens on the Department and the military services” and that “notwithstanding the implementation efforts made to date, the Department still would not be adequately and properly prepared to begin processing transgender applicants for military service by January 1, 2018.”

The judge found this unconvincing, pointing out that DoD has had almost a year and a half to prepare for this eventuality, dating back to former Secretary of Defense Ashton Carter’s June 2016 Directive pointing to a July 1, 2016, implementation date for allowing transgender people to enlist, which was extended for six months by Secretary James Mattis at the end of June 2017.  “Moreover,” she wrote, “the Court issued the preliminary injunction in this case approximately six weeks ago, and since then Defendants have been on notice that they would be required to implement the previously established policy of beginning to accept transgender individuals on January 1, 2018.  In other words, with only a brief hiatus, Defendants have had the opportunity to prepare for the accession of transgender individuals into the military for nearly one and a half years.”

In opposition to the motion, the plaintiffs had submitted a declaration by Dr. George Richard Brown, who has trained “approximately 250 medical personnel working in Military Entrance Processing Stations (MEPS) throughout the military” in anticipation of implementing the accessions policy, and a declaration by former Secretary of the Navy Ray Mabus, Jr., who stated that “the Services had already completed almost all of the necessary preparation for lifting the accession ban” as long as a year ago.

As to the so-called emergency nature of this motion, Judge Kollar-Kotelly wrote, “As a final point, the Court notes that Defendants’ portrayal of their situation as an emergency is belied by their litigation tactics. The Court issued its preliminary injunction requiring Defendants to comply with the January 1, 2018 deadline on October 30, 2017.  Defendants did not file an appeal of that decision until November 21, 2017, and did not file the current motion for a stay of that deadline until December 6, 2017, requesting a decision by noon today, December 11, 2017.  There is also no indication that Defendants have sought any sort of expedited review of their appeal, the first deadlines in which are not until January, 2018.  If complying with the military’s previously established January 1, 2018 deadline to begin accession was as unmanageable as Defendants now suggest, one would have expected Defendants to act with more alacrity.”

However, the judge’s denial of the stay may prove more symbolic than effective in terms of allowing transgender people to actually enlist, since she noted that the policy that will go into effect on January 1 presents significant barriers to enlistment on medical grounds.  The Pentagon is planning to require that transgender applicants show, generally speaking, that for at least 18 months prior to their applications they have been “stable” with regard to their gender identity.  Nobody can enlist, for example, if they have undergone gender confirmation surgery within the past 18 months, since the medical standard will require that they have been “stable” for at least 18 months after the last surgical treatment.  Similarly, anybody first diagnosed as having gender dysphoria within the previous 18 months cannot enlist, since they will have to have certified by a licensed medical provider that they have been “stable without clinically significant distress or impairment” for at least 18 months since their diagnosis.  And those under treatment, for example taking hormone therapy, will have to show they have been stable for at least 18 months since commencing therapy.  In addition, of course, applicants will have to meet all medical requirements applicable to everybody regardless of gender identity, and it is well-known that a substantial percentage of potential enlistees are disqualified on physical/medical grounds.

As to the government’s “extraordinary burden” argument, Judge Kollar-Kotelly noted, “There is no evidence in the record that would suggest that the number of transgender individuals who might seek to accede on January 1, 2018, would be overwhelmingly large.  To the contrary, although the Court understands that there may be some dispute as to the amount of transgender individuals in the general population and in the military, the record thus far suggests that the number is fairly small.”

Plaintiffs in Doe v. Trump are represented by National Center for Lesbian Rights and GLAD.

The plaintiffs in Karnoski v. Trump, pending in the district court in Seattle, are represented by Lambda Legal and Outserve/SLDN.  They alleged four theories for challenging the policy: equal protection, substantive due process (deprivation of liberty), procedural due process, and freedom of speech.  Judge Pechman found that three out of these four theories were sufficiently supported by the complaint to deny the Justice Department’s motion to dismiss the case, although she granted the motion as to the procedural due process claim.  She efficiently disposed of various procedural objections to the lawsuit, finding that all of the plaintiffs have standing to proceed, including the organizational plaintiffs and the State of Washington, whose motion to intervene as a plaintiff had previously been granted, and that the dispute is ripe for judicial resolution because of the imminent implementation of Trump’s policy directives.

As had two district judges before her, Judge Pechman cut and pasted screen captures of the president’s July 26 tweet announcing the policy into her opinion, and used particularly cutting language to reject DOJ’s argument that the president’s policy decision was entitled to the kind of judicial deference usually accorded to military policy decisions. “Defendants rely on Rostker v. Goldberg (1981). In Rostker, the Supreme Court considered whether the Military Selective Service Act (MSSA), which compelled draft registration for men only, was unconstitutional.  Finding that the MSSA was enacted after extensive review of legislative testimony, floor debates, and committee reports, the Supreme Court held that Congress was entitled to deference when, in ‘exercising the congressional authority to raise and support armies and make rules for their governance,’ it does not act ‘unthinkingly’ or ‘reflexively and not for any considered reason.’  In contrast, the prohibition on military service by transgender individuals was announced by President Trump on Twitter, abruptly and without any evidence of considered reason or deliberation.  The policy is therefore not entitled to Rostker deference.  Because Defendants have failed to demonstrate that the policy prohibiting transgender individuals from serving openly is substantially related to important government interests, it does not survive intermediate scrutiny.”  In a footnote, the judge added, “For the same reasons, the policy is also unlikely to survive rational basis review.”

The court concluded that all the tests for preliminary injunctive relief established by the 9th Circuit Court of Appeals (Washington State is within the 9th Circuit) had easily been satisfied.  Her Order “enjoins Defendants and their officers, agents, servants, employees, and attorneys, and any other person or entity subject to their control or acting directly or indirectly in concert or participation with Defendants from taking any action relative to transgender individuals that is inconsistent with the status quo that existed prior to President Trump’s July 26, 2017 announcement.  This Preliminary Injunction shall take effect immediately and shall remain in effect pending resolution of this action on the merits or further order of this Court.”

Thus, Judge Pechman issued the third preliminary injunction against Trump’s anti-transgender policy, after those issued by Judge Kollar-Kotelly on October 30 and U.S. District Judge Marvin J. Garbis in Stone v. Trump on November 21 in the District Court in Maryland. All three preliminary injunctions block the discharge of transgender service members while the case is pending and require the Pentagon to allow transgender people to begin enlisting on January 1.  The injunctions by Judge Garbis and Judge Pechman also block the administration from refusing to fund transition-related health care (including surgery).  In the face of this united front from the three judges, it seems likely that Judge Bernal will eventually issue a similar order, so attention will turn to the Courts of Appeals to which DOJ has appealed the first ruling and presumably will soon appeal the others.

A Second US District Judge Blocks Trump’s Ban on Transgender Military Service

Posted on: November 21st, 2017 by Art Leonard No Comments

A second federal district judge has issued a preliminary injunction against implementation of President Donald Trump’s August 25 Memorandum implementing his July 26 tweet announcing a ban on all military service by transgender individuals. Stone v. Trump, Civil Action No. MJG-17-2459 (D. Md.). The November 21 action by District Judge Marvin J. Garbis of the District of Maryland came just three weeks after a federal district judge in the District of Columbia, Colleen Kollar-Kotelly, had issued a preliminary injunction against two directives in Trump’s three-directive memo.  (See Doe v. Trump, 2017 U.S. Dist. LEXIS 178892, 2017 WL 4873042 (D.D.C. Oct. 30, 2017).  Judge Garbis took the next step, enjoining implementation of all three directives, finding that the plaintiff group represented by the American Civil Liberties Union (ACLU) in this case includes at least two individuals who had standing to challenge the directive against the military providing sex reassignment procedures for military personnel.

In his August 25 Memorandum, Trump directed that all transgender service members be discharged, beginning no later than March 23, 2018, and that the existing ban on accession of transgender members, scheduled to end on January 1, 2018, be extended indefinitely. His third directive provided that after March 23 the Defense Department cease providing sex reassignment surgery for transgender personnel, with a possible individual exception in cases where procedures were already under way and failure to complete them would endanger the health of the individual.  (Of course, those individuals, being identified as transgender, would be subject to discharge under the first directive in any event.)

On September 24, Secretary of Defense James Mattis issued a memorandum establishing an “interim policy,” announcing that he would meet the President’s deadline of submitting a “plan to implement the policy and directives in the Presidential Memorandum” by February 21, but until then, there would be no immediate effect on individual service members.

The ACLU filed this lawsuit in the U.S. District Court in Maryland on August 8. Three other lawsuits challenging the transgender ban are pending.  One filed on August 9 in the District of Columbia District Court has already resulted in the preliminary injunction issued by Judge Kollar-Kotelly.  The others are pending in the District Courts in Seattle and Los Angeles, where the plaintiffs are also seeking preliminary injunctions.

Judge Garbis leaned heavily on Judge Kollar-Kotelly’s October 30 ruling for much of his analysis, agreeing with her that heightened scrutiny applies to the plaintiffs’ equal protection claim and that the usual judicial deference to military policy decisions by the Executive Branch was not appropriate in this case. The judge took particular note of an amicus brief filed by retired military officers and former national security officials, who had written that “this is not a case where deference is warranted, in light of the absence of any considered military policymaking process, and the sharp departure from decades of precedent on the approach of the U.S. military to major personnel policy changes.”

Continued Garbis, “President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the D.C. Court that there is sufficient support for Plaintiffs’ claims that ‘the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.’”

Indeed, Garbis concluded that heightened scrutiny was not even necessary to rule for the Plaintiffs on this motion. “The lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest,” he wrote, so it would fail the minimally demanding rationality test applied to all government policies.

Garbis closely followed the D.C. Court’s analysis of the grounds for jurisdiction in this case, rejecting the government’s argument that nobody had been harmed yet so nobody had standing to bring the case, and that it was not yet ripe for judicial resolution when Mattis had not yet made his implementation recommendations to the President. The adoption of a policy that violates equal protection is deemed a harm even before it is implemented, and the stigmatic harm of the government officially deeming all transgender people as unfit to serve the country is immediate.  The court found that Trump’s directive that Mattis study how to implement the president’s orders was not, in effect, a mandate to recommend exceptions or abandonment of the ban, thus undercutting the government’s argument that it is merely hypothetical or speculative that the ban would go into effect unless enjoined by the courts.

Garbis went further than Kollar-Kotelly to enjoin the sex reassignment directive because the ACLU’s plaintiff group included at least two individuals whose transition procedures have already been disrupted and will be further disrupted if the ban goes into effect. The D.C. Court had accepted the government’s argument that appropriate adjustments had vitiated any negative effect on the plaintiffs in that case who were seeking transition procedures, but Garbis found that the timing of the transition procedures for the plaintiffs before him would be disrupted if the ban goes into effect, so the harm was not merely hypothetical.

The court based the preliminary injunction on its finding that plaintiffs were likely to prevail in their equal protection argument, and did not address the due process argument in that context. However, in rejecting the government’s motion to dismiss the due process claim, Garbis accepted the plaintiffs’ argument that “it is egregiously offensive to actively encourage transgender service members to reveal their status and serve openly, only to use the revelation to destroy those service members’ careers.”

In perhaps the strongest statement in his opinion, Garbis wrote: “An unexpected announcement by the President and Commander in Chief of the United States via Twitter that ‘the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military’ can be considered shocking under the circumstances. According to news reports provided by Plaintiffs, the Secretary of Defense and other military officials were surprised by the announcement.  The announcement also drew swift criticism from retired generals and admirals, senators, and more than 100 Members of Congress.  A capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes.”

The only setback suffered by the plaintiffs was dismissal, without prejudice, of their claim that the policy violates 10 U.S.C. sec. 1074(a)(1), a statute the entitles active duty and reserve military members to medical care in military treatment facilities. The plaintiffs claimed that the sex reassignment directive exceeded the President’s authority by attempting to override a statute by “denying necessary medical care to a group of service member he happens to disfavor,” and that doing so through a unilateral White House memorandum rather than a regulation adopted pursuant to the Administrative Procedure Act was unlawful.  Garbis characterized the plaintiffs’ factual allegations in support of this claim as “conclusory” and thus not sufficient to meet the civil pleading requirement.  However, he wrote, “Perhaps Plaintiffs could assert an adequate and plausible statutory claim,” so he dismissed without prejudice, allowing the plaintiffs to seek permission to file an amendment that “adequately asserts such a claim if they can do so.”  This dismissal does not really affect the substance of the relief granted by the preliminary injunction or sought in the ongoing case, because Judge Garbis granted the preliminary injunction on constitutional grounds against implementation of Trump’s sex reassignment surgery, exactly the part of the Trump memorandum targeted by the statutory claim.

The Justice Department will likely seek to appeal this ruling to the 4th Circuit Court of Appeals, just as it had announced that it would appeal Judge Kollar-Kotelly’s ruling to the D.C. Circuit Court of Appeals.  By the time an appeal is considered, however, it is likely that preliminary injunctions will also have been issued by the district courts in Seattle and Los Angeles.  Maybe a united front of judicial rejections of the transgender ban will convince Trump and Attorney General Jeff Sessions, whose department is defending the ban, that it is time to withdraw the August 25 Memorandum and disavow the July 26 tweet.

Since the Administration takes the position that Presidential tweets are official policy statements of the President, a disavowal of the tweets would be necessary to render the policy fully withdrawn, one presumes, although this is unexplored territory. Interestingly, Judge Garbis followed Judge Kollar-Kotelly’s example by including a cut and paste version of the Trump tweet sequence in the background section of his opinion, and specifically identified policy announcement by tweet as a departure from normal procedure that contributes to the constitutional analysis.

Judge Garbis, a Senior U.S. District Judge, was appointed by President George H.W. Bush.