President Donald Trump’s July 26 tweet announcing that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military,” as amplified by an August 25 Memorandum, has encountered unanimous resistance from ten federal judges who have had an opportunity to vote on it by Christmas. Nine of the ten were appointed by Presidents Bill Clinton and Barack Obama. One, U.S. District Judge Marvin Garbis in Baltimore (District of Maryland), was appointed by George H. W. Bush. As of December 22, the Trump policies had provoked four nationwide preliminary injunctions, and two federal circuit courts of appeals had refuse “emergency” motions by the government to stay the injunctions in connection with a January 1 date for allowing transgender individuals to enlist.
The most recent relevant opinions are Jane Doe 1 v. Trump, 2017 U.S. App. LEXIS 26477 (D.C. Cir., Dec. 22, 2017); Stockman v. Trump, Case No. EDCV 17-1799 JGB (KKx) (C.D. Cal., Dec. 22, 2017); Stone v. Trump, No. 17-2398 (4th Cir., Dec. 21, 2017); and Karnoski v. Trump, 2017 WL 6311305, 2017 U.S. Dist. LEXIS 167232 (W.D. Wash., Dec. 11, 2017). All the major national LGBT groups are involved in at least one of these cases, and several of the nation’s major law firms are participating as cooperating attorneys.
Trump’s August 25 Memorandum set out three policies: a requirement that all transgender personnel be discharged, a ban on allowing transgender individuals to enter the military, and a ban on use of Defense Department or Homeland Security Department funds to pay for sex reassignment procedures for military members. The Memorandum assigned the Defense Department the task of figuring out how to implement these policies, and to report back in writing to the president in February, and meanwhile nobody would be discharged or denied medical treatment. But the Memorandum specified that the existing ban on enlistments would remain in effect indefinitely, contrary to a Defense Department announcement in June that it would be lifted on January 1, 2018.
The four lawsuits were filed in different federal district courts shortly after the policy was announced, with complaints alleging a violation of Equal Protection and a variety of other claims, but all seeking preliminary injunctions to stop the Trump policies from going into effect while the cases are litigated. They all specifically asked that the Pentagon adhere to the previously announced date of January 1, 2018, to lift the ban on transgender people enlisting. The Justice Department moved to dismiss all four cases, and vigorously opposed the motions for preliminary injunctions, which if granted would block the policies announced in the President’s August 25 Memorandum from going into effect while the cases are being litigated and would requirement implementation of the January 1 date for allowing transgender people to enlist.
As of December 22, when U.S. District Judge Jesus G. Bernal, sitting in Riverside (Central District of California), issued a nationwide preliminary injunction, all four district judges had issued such injunctions, beginning with D.C. District Judge Colleen Kollar-Kotelly on October 30, Judge Garbis in Maryland on November 21, and Judge District Judge Marsha J. Pechman in Seattle (Western District of Washington) on December 11. The subsequent opinions all cited to and quoted from Judge Kollar-Kotelly’s opinion, none stating any disagreement with her analysis. On December 21, the 4th Circuit Court of Appeals refused to stay Judge Garbis’s injunction, and on December 22, the D.C. Circuit refused to stay Judge Kollar-Kotelly’s injunction. As of December 22, DOJ had appealed Judge Pechman’s ruling to the 9th Circuit, and a similar appeal was likely to be filed from Judge Bernal’s ruling, but it appeared unlikely that an “emergency” stay of either of these preliminary injunctions would be ordered, or would necessarily have any effect, since the nationwide preliminary injunctions issued by Judges Garbis and Kollar-Kotelly are in effect… unless DOJ can find a U.S. Supreme Court Justice who is willing to issue a stay.
All four district judges rejected the Justice Department’s argument that the cases should be dismissed because no actions had actually yet been taken to implement Trump’s announced policies, which were being “studied” by the Defense Department under an “Interim Guidance” issued by Defense Secretary James Mattis in September. All four judges credited the plaintiffs’ arguments that the announcement of the policies and the instruction to the Defense Department to devise a method of implementation had already thrown into turmoil and uncertainty the lives of presently serving transgender individuals as well as transgender people who were anticipating signing up for military service beginning January 1, including transgender students in the nation’s military academies anticipating joining the active forces upon graduation, and they had also disrupted plans for sex reassignment surgery for several of the plaintiffs. While Judge Kollar-Kotelly found that none of the plaintiffs in the case before her had individual standing to contest the surgery restriction, so she granted the Justice Department’s motion to dismiss that part of the complaint in the case before her, the three other judges all found that some of the plaintiffs in their cases were directly affected by the surgery ban and denied the Justice Department’s motion to dismiss that part of their cases. Ultimately, all four cases are proceeding on an Equal Protection theory, with the judges finding that the plaintiffs had standing to bring these constitutional challenges, which were ripe for consideration on the merits.
As to the preliminary injunction motions, all four judges agreed that the high standards for enjoining the implementation of government policies were easily met in these cases. They all agreed that policies treating people adversely because of their gender identity should be reviewed by the same standard as policies that discriminate because of sex, which is called “intermediate scrutiny.” Under this standard, the government bears the burden of showing that it has a justification for the policy that is “exceedingly persuasive,” “genuine,” “not hypothesized,” and “not invented post hoc in response to litigation,” and “must not rely on overbroad generalizations,” wrote Judge Bernal in his December 22 opinion, picking up quotes from prior cases.
“Defendants’ justifications do not pass muster,” Bernal wrote. “Their reliance on cost is unavailing, as precedent shows the ease of cost and administration do not survive intermediate scrutiny even if it is significant. Moreover, all the evidence in the record suggests the ban’s cost savings to the government is miniscule. Furthermore, Defendants’ unsupported allegation that allowing transgender individuals to be in the military would adversely affect unit cohesion is similarly unsupported by the proffered evidence. These justifications fall far short of exceedingly persuasive.” Bernal concluded, as had the other three district judges, that plaintiffs were likely to succeed on the merits of their Equal Protection claim, so it was unnecessary to analyze the other constitutional theories they offered.
He also rejected DOJ’s argument that the court should follow the normal practice of according “a highly deferential level of review” to executive branch decisions about military policy. Quoting a Supreme Court ruling from 1981, which such that such deferential review is most appropriate when the “military acts with measure, and not ‘unthinkingly or reflexively,’” he observed, “Here, the only serious study and evaluation concerning the effect of transgender people in the armed forces led the military leaders to resoundingly conclude there was no justification for the ban.” He agreed with Judge Kollar-Kotelly that “the reasons offered for categorically excluding transgender individuals were not supported and were in fact contradicted by the only military judgment available at the time.”
Bernal also easily concluded that blocking implementation of the policy and ending the enlistment ban on January 1 were necessary to prevent irreparable harm to the plaintiffs. This was basically a determination that allowing the Trump policies to go into effect would cause injuries to transgender individuals that could not be completely remedied by monetary damages awarded after the fact. The Justice Department argued that “separation from the military would not constitute irreparable harm because it is within the Court’s equitable powers to remedy the injury,” but Bernal countered, “These arguments fail to address the negative stigma the ban forces upon Plaintiffs,” including the “damaging public message that transgender people are not fit to serve in the military. There is nothing any court can do to remedy a government-sent message that some citizens are not worthy of the military uniform simply because of their gender. A few strokes of the legal quill may easily alter the law, but the stigma of being seen as less-than is not so easily erased.” Furthermore, federal courts have frequently held that “deprivation of constitutional rights unquestionably constitutes irreparable injury.”
As to the “balance of equities” and “public interest” factors that courts are supposed to weigh in deciding whether to enjoin government action, Bernal found that these weighed in favor of granting the injunction. Invoking “national defense” and “unit cohesion” were not persuasive in light of the extended study by the Defense Department that led to its decision in June 2016 to end the ban and to set in motion a change in recruitment polices to take place July 1, 2017 (which was extended by Secretary Mattis to January 1, 2018).
Judge Bernal quoted from Judge Kollar-Kotelly’s opinion: “There is absolutely no support for the claim that the ongoing service of transgender people would have any negative effect on the military at all. In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects.” Judge Bernal saw no reason to depart from the analysis by Judges Garbis and Kollar-Kotelly in their decisions to issue preliminary injunctions.
Judge Bernal issued a two-part order. The first part enjoins the defendants “from categorically excluding individuals … from military service on the basis that they are transgender.” The second part provides that “no current service member … may be separated, denied reenlistment, demoted, denied promotion, denied medically necessary treatment on a timely basis, or otherwise subjected to adverse treatment or differential terms of service on the basis that they are transgender.”
The Justice Department sought to have the preliminary injunctions stayed, but so far the district judges have not been receptive, so DOJ took the next step of filing appeals in the D.C., 4th and 9th Circuits, and, claiming an “emergency” as January 1 drew near, sought particularly to stay the part of the injunctions that would require lifting the enlistment ban as of that date.
On December 21, a 4th Circuit three-judge panel rejected the motion for stay without comment. The next day, however, a three-judge panel of the D.C. Circuit issued an opinion explaining its refusal to grant the requested stay. Wrote the D.C. panel, “Appellants have not shown a strong likelihood that they will succeed on the merits of their challenge to the district court’s order. As the district court explained, ‘the sheer breadth of the exclusion ordered by the [Memorandum], the unusual’ and abrupt ‘circumstances surround the President’s announcement of [the exclusion], the fact that the reasons given for [it] do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself,’ taken together, ‘strongly suggest that Plaintiffs’ Fifth Amendment claim is meritorious.’”
The court noted in particular the adverse effect that staying the injunction would have on transgender individuals who have been attending the service academies and anticipating graduating and being accepted into the active service as officers. Indeed, the court suggested, federal law actually treats students in the service academies as members of the military, so letting the discharge policy go into effect posed an immediate threat to them.
In seeking “emergency” relief, DOJ contended that the Defense Department was not ready to being enlisting transgender people. In an order that Judge Kollar-Kotelly had issued on December 11, denying an emergency stay motion, she pointed out that DOJ was relying on “sweeping and conclusory statements” without “explaining what precisely needs to be completed by January 1, 2018, in order for Appellants to be prepared to begin transgender accessions.”
Totally undermining this emergency motion was the Defense Department’s own action. “With respect to implementation of transgender accession into the military,” wrote the D.C. panel, “Appellants did not even inform this court of a Defense Department memorandum issued December 8, 2017, that provides detailed directions and guidance governing ‘processing transgender applicants for military service,’ directions that the Secretary of Defense’s Department commanded ‘shall remain in effect until expressly revoked.’ That open-ended directive documenting concrete plans already in place to govern accession was issued before the district court ruled on the motion for a stay pending appeal.” Thus, the government is tripping over itself in the urgency of DOJ to satisfy the President’s demand that his whims be obeyed. And the court was totally unconvinced by DOJ’s argument that, in the absence of the preliminary injunction, Mattis had any discretion to alter the terms set out in Trump’s Memorandum.
The court noted that “the enjoined accession ban would directly impair and injure the ongoing educational and professional plans of transgender individuals and would deprive the military of skilled and talented troops,” so “allowing it to take effect would be counter to the public interest.”
“Finally,” wrote the court, “in the balancing of equities, it must be remembered that all Plaintiffs seek during this litigation is to serve their Nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the Nation, the people of the United States, and the Constitution against all who would attack them.”
In addition to denying the stay, the D.C. panel set out an expedited calendar for addressing DOJ’s appeal of the District Court’s decision to issue the injunction, directing that oral argument be scheduled for January 27, 2018. Furthermore, apparently reacting to the maze of unfamiliar acronyms strewn through the papers filed with the court, making them difficult for the judges to process efficiently, “the parties are urged to limit the use of abbreviations, including acronyms. While acronyms may be used for entities and statues with widely recognized initials, briefs should not contain acronyms that are not widely known.
Perhaps federal judges are too polite to say so, but the clear import of their opinions in this litigation is that President Trump lied in his original tweet when he said that his decision was made “after consultation with my Generals and military experts.” To date, neither the president nor anybody speaking for him has actually identified any “military experts” or “Generals” who were consulted before the president decided to take this action. The Defense Department, confronted with the allegations in the complaints about the extended studies that preceded the June 2016 policy announcement by Secretary Carter, has not cited any studies to counter them. Secretary Mattis, who was on vacation when the president issued his tweet, was informed that it was happening the night before, according to press reports, but is not said to have been consulted about whether this policy change should be made. Thus, the reference in the court opinions to the lack of “facts” backing up this policy, and the unanimous agreement that the usual judicial deference to military expertise is inappropriate in these cases.Tags: Defense Secretary Ashton Carter, Defense Secretary James Mattis, Donald J. Trump, equal protection of the law, gender identity and military service, gender identity discrimination, Jane Doe 1 v. Trump, judicial deference to military policy, Karnoski v. Trump, preliminary injunction against transgender ban, Stockman v. Trump, Stone v. Trump, transgender military service, Trump's transgender military ban, Trump's transgender military Memorandum, Trump's transgender military tweet, U.S. District Judge Colleen Kollar-Kotelly, U.S. District Judge Jesus G. Bernal, U.S. District Judge Marsha J. Pechman, U.S. District Judge Marvin Garbis