U.S. District Judge Colleen Kollar-Kotelly, ruling in the first of four pending lawsuits challenging the current version of the military policy on transgender service, issued a wide-ranging ruling on September 13 attempting to settle some of the remaining problems in deciding what information the plaintiffs are entitled to obtain through discovery as the case continues. The case, renamed since President Trump was removed as a defendant and James Mattis quit as Defense Secretary, is now called Jane Doe 2 v. Mark T. Esper, 2019 WL 4394842, 2019 U.S. Dist. LEXIS 156803 (D.D.C., September 13, 2019)
The decision makes clear that the court has rejected the government’s argument that the so-called “Mattis Plan,” implemented in April 2019 after the Supreme Court voted to stay the preliminary injunctions that had been issued by the district courts, is entitled to virtually total deference from the court, thus precluding any discovery into how the Mattis Plan was put together, allegedly by a task force of experts convened by Defense Secretary James Mattis in response to the president’s request for a plan to implement the total ban on transgender service that he announced by tweet in July 2017.
When Trump came into office, transgender people were serving openly in the military as a result of a policy announced at the end of June 2016 by President Obama’s Defense Secretary, Ashton Carter. The Carter policy lifted the existing ban on open transgender military service, but delayed lifting the ban on enlistment of transgender people for one year. The first move by the Trump Administration concerning this policy was an announcement by Secretary Mattis at the end of June 2017 that he would not lift the enlistment ban until January 2018 in order to make sure that all necessary policies were in place to evaluate transgender applicants for enlistment.
A few weeks later, catching just about everybody by surprise, President Trump tweeted his announcement of a total ban on transgender people serving. This was followedby a White House memorandum in August 2017, delaying enlistment of transgender people indefinitely, but allowing those already in the military to continue serving until March 2018 while Secretary Mattis came up with an implementation plan to recommend to the president.
Starting in August 2017 and continuing into the fall, four law suits were filed in federal district courts around the country challenging the constitutionality of the ban as announced by the President. Federal district judges issued preliminary injunctions in all four lawsuits while denying the government’s motion to dismiss them, setting the stage for discovery to begin. Discovery is the phase of a lawsuit during which the parties can request information, testimony and documents from each other in order to build a factual record for the decision of the case, and under federal discovery rules, anything that may be relevant to decide the case may be discoverable, subject to privileges that parties may assert.
In February 2018, Secretary Mattis released a report, purportedly compiled by a task force of senior military personnel and experts whom Mattis did not identify, discussing transgender military service and recommending a policy that differed in many respects from the absolute ban Trump had announced. Under this proposed policy, the enlistment ban would be relaxed for transgender people who have not been diagnosed with gender dysphoria and are willing to serve in their gender as identified at birth. The policy would allow transgender people who were serving to continue doing so. Those who were transitioning as of the date the policy was implemented would be allowed to complete their transition and serve in their desired gender. Otherwise, transgender personnel would have to serve in their gender as identified at birth, and would be separated from the service if they were diagnosed with gender dysphoria. Nobody would be allowed to initiate transition while in the military once this policy was implemented. There was no guarantee that transgender personnel would be allowed re-enlist at the end of their term of enlistment unless they met the same standards as a new applicant. In short, the proposed policy would allow some transgender people to serve, but not all who were otherwise qualified, and would place certain restrictions on those who were allowed to continue serving.
Trump’s response to the recommendation was to revoke his prior policy announcements and to authorize Mattis to implement what became known as the Mattis Plan. However, all the preliminary injunctions were still in place, so the government concentrated on getting the injunctions dissolved or withdrawn and getting the district judges to dismiss the cases on the ground that the policy they were attacking no longer existed. The district judges resisted this move, some appeals were taken to the courts of appeals, and ultimately the Mattis Plan was implemented more than a year after it was proposed to the president, when the Supreme Court cut through the procedural difficulties and ruled, without a written opinion, that the Mattis Plan could go into effect while the lawsuits continued.
The focus of the lawsuits now switched to challenge the constitutionality of the Mattis Plan, and the parties went back to battling about discovery after it was clear that the district courts would not dismiss these lawsuits merely because one plan had been substituted for another. Although some transgender people can serve under the Mattis Plan, the Plan still discriminates both against transgender people who have been diagnosed with gender dysphoria and against those who have not by requiring them to forego obtaining a diagnosis and transitioning if they want to serve.
One of the issues for Judge Kollar-Kotelly was deciding whether the government was correct to argue that because the Mattis Plan resulted from a Task Force study and recommendation process, it was entitled to standard military deference, under which courts disclaim the power to second-guess the personnel policies the military adopts. The government focused particularly on a concurring opinion in the D.C. Circuit panel opinion that had quashed the preliminary injunction in this case, which arguably supported the view that plaintiffs were not entitled to discovery of documents and testimony related to the “deliberative process” by which the Mattis Plan was devised.
The judge responded that this was the central issue of the case: whether the Mattis Plan is entitled to standard military deference. She found that the concurring judge, Stephen Williams, was alone in his view, as the other two members of the D.C. Circuit panel, faithful to Supreme Court precedents, had not opposed discovery, find that the deference question turned on whether the Mattis Plan is “the result of reasoned decision-making” that relates to military readiness concerns. If, as the plaintiffs suspect and have argued all along, Trump’s motivation in banning transgender military service was motivated by politics, not by any evidence that the Ashton Carter policy had harmed the military by allowing unqualified people to serve, it would not be the result of “reasoned decision-making “and thus not entitled to deference.
Agreeing with the plaintiffs, Judge Kollar-Kotelly wrote that she could not decide the appropriate level of deference (or non-deference) without access to information about how the Mattis Plan was devised. Thus discovery should continue ,focused on that. However, she rejected the plaintiffs’ argument that they should be allowed to conduct discovery on Mattis’s initial decision to delay enlistments for six months, or on the process by which Trump formulated the July 2017 total ban announced in his tweet and elaborated in the White House’s August 2017 memorandum. Those, she found, are no longer relevant when the focus of the lawsuit has shifted to the constitutionality of the Mattis Plan.
As to that, however, the judge ruled that the government’s attempt to shield access to relevant information under the “deliberative process privilege” was not applicable to this case. Just as the current state of the record is inadequate to determine the level of deference, discovery of the deliberative process by which the Mattis Plan was devised is necessary to determine whether it is the “result of reasoned decision-making.”
The judge reviewed a checklist of factors created by the D.C. Circuit Court of Appeals in earlier cases to determine whether the deliberative process privilege should be set aside in a particular case, and found that the plaintiffs’ requests checked all the necessary boxes. The information is essential to decide the case, it is not available elsewhere than from the government, and the court can use various procedures to ensure that information that needs to be kept confidential can be protected from general exposure through limitations on who can see it, known as protective orders. Furthermore, the parties can apply to the court for determination of whether any particular document need not be disclosed in discovery on grounds of relevance.
The government was particularly reluctant to comply with the plaintiffs’ request for “raw data and personnel files.” The plaintiffs sought this in order to determine whether the factual claims made in the Task Force Report are based on documented facts, especially the claims in the Report that allowing persons who have been diagnosed with gender dysphoria to serve will be harmful to military readiness because of limitations on deployment during transitioning and geographical limitations on deployment due to ongoing medical issues after transition. Critics have pointed out that the Report seems to be based more on the kind of propaganda emanating from anti-transgender groups than on a realistic appraisal of the experience in the military since Secretary Carter lifted the former ban effective July 1, 2016. Since transgender people in various stages of transition have been serving openly for a few years, there are medical and performance records that could be examined to provide such information, but the government has been refusing to disclose it, claiming both that it raises privacy concerns and that disclosure is unnecessary because the Mattis Plan is entitled to deference as a military policy.
The judge found that it should be possible for these records to be discovered by redacting individually identifying information and imposing limitations on who can see the information and how it can be used. Thus, the privacy concerns raised by the government should not be an impediment. And this information, once again, is very relevant to the question whether the statements about the service qualifications of transgender people are based on biased opinions rather than facts, thus discrediting the claim that the policy is the result of reasoned decision-making.
The Trump Administration’s strategy in this, as in many other ongoing lawsuits concerning controversial policy decisions, has been to fight against discovery at every stage and to appeal every ruling adverse to them, including trying to “jump over” the courts of appeals to get the Supreme Court to intervene on the government’s behalf, now that Trump has succeeded in fortifying the conservative majority on the Court with the additions of Justices Gorsuch and Kavanaugh. It would not be surprising if the government seeks to appeal Judge Kollar-Kotelly’s ruling to the D.C. Circuit once again to put off (perhaps permanently) the day when they will have to give up the identities of the Mattis Task Force members and open the books on how this policy – obviously political in its conception and implementation – was conceived.
Of course, if the White House changes hands in January 2021, a Democrat president could reverse the ban in any of its forms with a quick Executive Order restoring Secretary Carter’s policy from 2016. As the four lawsuits continue to be bogged down in discovery disputes, that may be the way this story eventually ends. If Trump is re-elected, the story continues to drag out while the Mattis Plan stays in place.
The plaintiffs are represented by a growing army of volunteer big firm attorneys and public interest lawyers from GLAD (GLBTQ Legal Advocates & Defenders) and the National Center for Lesbian Rights.