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Trump Administration Suffers More Setbacks in Defending Transgender Military Ban

Posted on: August 14th, 2018 by Art Leonard No Comments

Two federal district judges have issued new rulings in lawsuits challenging the Trump Administration’s ban on military service by transgender individuals, mainly adverse to the government.  [Addendum:  After this was drafted, we received a decision from a federal magistrate judge in Baltimore on discovery issues in one of the other challenged to the transgender ban.  Our summary appears at the end of this posting.]

After the San Francisco-based U.S. Court of Appeals for the 9th Circuit refused to lift Seattle U.S. District Judge Marsha Pechman’s preliminary injunction against the policy on July 18, she issued a new ruling on July 27 granting the plaintiffs’ motion to compel discovery and denying the government’s motion for a protective order that would shield President Trump from having to respond to any discovery requests.  The Justice Department immediately announced that it would appeal this ruling to the 9th Circuit Court of Appeals.  Judge Pechman had previously denied motions for summary judgment in the case, having found that there was a need for discovery before such a ruling could take place.

On August 6, D.C. District Court Judge Colleen Kollar-Kotelly, who had issued the first preliminary injunction against the policy last year, issued two decisions. In one, she rejected the government’s request to vacate her preliminary injunction as moot, finding that the plaintiffs have standing to challenge the “new” policy described by Defense Secretary James Mattis in his February 2018 memo to the President, and agreeing with Judge Pechman that the “new” policy is not essentially different from the “old” one announced by President Trump a year ago. However, Judge Kollar-Kotelly granted a motion by the government to dismiss President Trump as an individual named defendant in the case.

Two other lawsuits challenging the policy are pending in federal district courts in Riverside, California, and Baltimore, Maryland. In both cases, the judges have received motions from the parties that are awaiting decision, similar to those filed with Judges Pechman and Kollar-Kotelly.

To recap for those coming late to this story, Trump tweeted a ban on transgender military service on July 26, 2017, and issued a memorandum a month later describing the policy in slightly more detail, charging Secretary Mattis to propose a plan for implementation by late February, 2018, with the goal of implementing the policy later in March. Trump’s memo specified that Mattis’s previous directive to allow transgender applicants to join the military, which had been announced at the end of June 2017 to go into effect on January 1, 2018, was to be indefinitely delayed, as Trump’s policy would not allow transgender people to enlist.  Mattis announced that no action would be taken against now-serving transgender personnel pending the implementation of the policy in March 2018, but there were reports of transgender personnel suffering cancellations of promotions and desire assignments and of planned medical procedures after the policy was announced.

Mattis’s memo to the president in February proposed some modifications to the policy that had been announced in Trump’s August memorandum. Transgender personnel who were already serving and had transitioned and were “stable” in their preferred gender would be allowed to continue serving, based on a determination that the investment in their training outweighed whatever “risk” they posed to the readiness of the military.  Furthermore, transgender individuals who had not transitioned or been diagnosed with “gender dysphoria” would be allowed to enlist and serve, provided they refrained from transitioning and served in the sex identified at birth.  Otherwise, those diagnosed with “gender dysphoria” would be prohibited from enlisting or serving, and those who could not comply with these requirements would be discharged.  The proposal was based on a “finding” by a rigged special committee apparently dominated by committed opponents of transgendered service that allowing transgender people to serve in the military was harmful to the operational efficiency of the service – a finding based on no factual evidence and oblivious to the fact that transgender people had been serving openly without any problems since the Obama Administration lifted the prior ban at the end of June 2016.

Four lawsuits had been filed in response to the summer 2017 policy announcement, and in a matter of months the four district courts had issued preliminary injunctions, having found it likely that the plaintiffs would prevail on their argument that the policy violates the Equal Protection requirements of the 5th Amendment of the Bill of Rights. As compelled by the preliminary injunctions, the Defense Department allowed transgender people to submit applications to enlist beginning January 1, 2018, after losing a last-ditch court battle to continue the enlistment ban, but there were reports that the applications they received were getting very slow processing, and all indications are that few have been accepted for service.

Trump responded to Mattis’s February 2018 memo by “withdrawing” his prior memo and tweet, and authorizing Mattis to adopt the implementation plan he was recommending by late March. The Justice Department then filed motions in all the lawsuits seeking to lift the preliminary injunctions. Their argument was, in part, that the “new” policy was sufficiently different from the one that had been “withdrawn” as to moot the lawsuits. They further contended that the plaintiffs who were already serving and would be allowed to continue serving under the “new” policy no longer had standing to challenge the policy in court.  The Department also argued that plaintiff’s attempts to conduct discovery in the case should be put on hold until there was a definitive appellate ruling on their motion to lift the preliminary injunctions.

On April 13, Judge Pechman rejected the government’s motion to lift the preliminary injunction, having already ordered that discovery proceed. In his initial tweet, Trump had claimed that he had consulted with generals and other experts before adopting the policy, but the identities of these people were not revealed, and the government has stonewalled against any attempt to discover their identities or any internal executive branch documents that might have been generated on this issue, making generalized claims of executive privilege.  Similarly, the February memorandum released under Mattis’s name did not identify any of the individuals responsible for its composition, and naturally the plaintiffs are also seeking to discover who was involved in putting it together and what information they purported to rely upon.

Judge Pechman’s July 27 order to compel discovery specified the materials sought by the plaintiffs, and pointed out that under federal evidentiary rules, any claim of privilege against disclosure is subject to evaluation by the court. “The deliberative privilege is not absolute,” she wrote.  “Several courts have recognized that the privilege does not apply in cases involving claims of governmental misconduct or where the government’s intent is at issue.”

The question, under 9th Circuit precedents, is “whether plaintiffs’ need for the materials and the need for accurate fact-finding override the government’s interest in non-disclosure.  In making this determination, relevant factors 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.”  There is a formal process for invoking privilege, which requires the government to “provide precise and certain reasons for preserving the confidentiality of designated material.”

In this case, Judge Pechman had previously determined that discrimination because of gender identity involves a “suspect classification” for purposes of equal protection requirements, which means the government has the burden of proving that there is a compelling justification for the discrimination. In this case, however, the government has articulated only a generalized judgment that service by transgender individuals is too “risky” based on no facts whatsoever.  Judge Pechman concluded in granting the plaintiffs’ discovery motion that “the deliberative process privilege does not apply in this case.”

The government had moved for a protective order “precluding discovery directed at President Trump.” While conceding that Trump has “not provided substantive responses or produced a privilege log” listing specifically what information has to be protected against disclosure, the government contended that “because the requested discovery raises ‘separation of powers concerns,’ Plaintiffs must exhaust discovery ‘from sources other than the President and his immediate White House advisors and staff’ before he is required to formally invoke the privilege.”

Judge Pechman noted that so far the government has refused to provide any information about how the policy decision was made or developed, and has failed to identify the specific documents and other information for which it claims privilege. In a footnote, she commented, “The Court notes that Defendants have steadfastly refused to identify even one general or military official President Trump consulted before announcing the ban.”  Thus, she found, there was no basis for the court to evaluate “whether the privilege applies and if so, whether Plaintiffs have established a showing of need sufficient to overcome it.”  Indeed, she concluded in a prior decision, as far as the record stands, it looks as if Trump made the whole thing up himself without relying on any military expertise. Thus, she has preliminarily rejected the government’s contention that the policy would enjoy the deference normally extended to military policies adopted based on the specialized training and expertise of the military policy makers.

Judge Kollar-Kotelly’s August 6 ruling focused on an issue that Judge Pechman had previously decided: whether the plaintiffs had standing to continue challenging the policy after Mattis’s memo supplanted the “withdrawn” earlier policy announcements. She had little trouble in determining that all the plaintiffs, even those who are currently-serving transgender personnel who would be allowed to consider serving under the “new” policy, still had standing, which requires a finding that implementing the policy would cause them harm.

“The Court rejects Defendants’ argument that Plaintiffs no longer have standing because they are not harmed by the Mattis Implementation Plan,” she wrote, stating that “the effect of that plan would be that individuals who require or have undergone gender transition would be absolutely disqualified from military service, individuals with a history or diagnosis of gender dysphoria would be 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 would be allowed to serve, but only ‘in their biological sex’ (which means that openly transgender persons would generally not be allowed to serve in conformance with their identity.)” Furthermore, those who have already transitioned and are now serving would be doing so under the stigma of having been labeled as “unfit” for military service and presenting an undue risk to military readiness, and would likely suffer prejudice in terms of their assignments and their treatment by fellow military personnel, as well as emotional harm.

“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,” she wrote. They would be serving “pursuant to an exception to a policy that explicitly marks them as unfit for service.  No other service members are so afflicted.  These Plaintiffs are denied equal treatment because they will be the only service members who are allowed to serve only based on a technicality; as an exception to a policy that generally paints them as unfit.”

She concluded that “because their stigmatic injury derives from this unequal treatment, it is sufficient to confer standing.” She pointed out that beyond stigmatization, the Implementation Plan “creates a substantial risk that Plaintiffs will suffer concrete harms to their careers in the near future.  There is a substantial risk that the plan will harm Plaintiffs’ career development in the form of reduced opportunities for assignments, promotion, training, and deployment.  These harms are an additional basis for Plaintiffs’ standing.”  She rejected the government’s contention that these harms were only “speculative.”

Furthermore, she rejected the claim that Trump’s “withdrawal” of his August 2017 memorandum and the substitution of the Mattis Implementation Plan made the existing lawsuits moot, agreeing with Judge Pechman that the “new” plan was merely a method of “implementing” the previously announced policy. She found that the Implementation Plan “prevents service by transgender individuals,” just as Trump had directed in August 2017, and the minor deviations from the complete categorical ban were not significant enough to make it substantially different.

Thus she refused to dissolve the preliminary injunction. She refrained from ruling on motions for summary judgment on the merits of the equal protection claim, because there are sharply contested facts in this case and no discovery has taken place, so it can’t be decided purely as a matter of law. The facts count here in court, even if they don’t seem to count in the White House or the Defense Department.

However, Judge Kollar-Kotelly granted the government’s motion to partially dissolve the injunction as it applies personally to Trump, and granted the motion to “dismiss the President himself as a party to this case. Throughout this lawsuit,” she wrote, “Plaintiffs ask this Court to enjoin a policy that represents an official, non-ministerial act of the President, and declare that policy unlawful.  Sound separation-of-power principles counsel the Court against granting these forms of relief against the President directly.”  Thus, she concluded, there was no reason to retain Trump as a defendant.  If the Plaintiffs prevail on the merits, an injunction aimed at the Defense Department’s leadership preventing the policy from taking effect will provide complete relief.

The Plaintiffs complained that removing Trump from the case as a defendant would undermine their attempt to discover the information necessary to make their case, since individuals who are parties to litigation are particularly susceptible to discovery requests. The judge wrote that “it would not be appropriate to retain the President as a party to this case simply because it will be more complicated to seek discovery from him if he is dismissed.  To the extent that there exists relevant and appropriate discovery related to the President, Plaintiffs will still be able to obtain that discovery despite the President not being a party to the case.”  And, she concluded, “Plaintiffs will be able to enforce their legal rights and obtain all relief sought in this case without the President as a party.”

The judge treated as moot the Defendants’ motion for a protective order shielding Trump from having to respond to discovery requests. “However,” she wrote, “the Court reiterates that dismissing the President as a party to this case does not mean that Plaintiffs are prevented from pursuing discovery related to the President.  The court understands that the parties dispute whether discovery related to the President which has been sought by Plaintiffs is precluded by the deliberative process or presidential communication privileges, and the Court makes no ruling on those disputes at this point. The Court will be issuing further opinions addressing other dispositive motions that have been filed in this case.  After all of those opinions have been issued, if necessary, the Court will give the parties further guidance on the resolution of the discovery requests in this case.”  In a footnote, Judge Kollar-Kotelly noted Judge Pechman’s July 27 discovery order, and that defendants were appealing it to the 9th Circuit.  The judge emphasized that the preliminary injunction remains in effect for all of the remaining defendants in the case, so the policy may not be implemented while the case continues.

The possibility that Trump will be ordered to submit to questioning under oath in at least one of these cases remains a reality, but any attempt by the Plaintiffs to do so would undoubtedly arouse spirited opposition from the Defense Department, officially based on claims of privilege, but realistically due to the likelihood that Trump would perjure himself under such questioning. Recall the historical precedent:  The House of Representatives voted to impeach President Clinton based, in part, on the charge that he committed perjury during questioning before a grand jury by the Special Counsel investigating his affair with Monica Lewinski.  Thus, at least in that case, the House considered presidential perjury to be an impeachable offense.

Plaintiffs in the Seattle case, Karnoski v. Trump (in which the president remains a defendant), are represented by Lambda Legal and pro bono attorneys from Kirkland & Ellis. Plaintiffs in the D.C. case, Jane Doe 2 v. Trump, are represented by the National Center for Lesbian Rights, GLBTQ Legal Advocates & Defenders (GLAD), and pro bono attorneys from Wilmer Cutler Pickering Hale & Dorr LLP and Foley Hoag LLP.

Addendum:

On August 14, U.S. Magistrate Judge A. David Copperthite, to whom Baltimore U.S. District Judge Marvin J. Garbis had referred discovery matters in Stone v. Trump, another one of the pending cases, issued a ruling granting in part the plaintiffs’ motion to compel discovery of deliberative materials regarding Trump’s July 2017 tweet, August 2017 memorandum, the “activities of the DoD’s so-called panel of experts and its working groups” who put together the memorandum ultimately submitted by Mattis to the President in February 2018, and deliberative materials regarding that Implementation Plan and the President’s March memorandum, “including any participation or interference in that process by anti-transgender activists and lobbyists.” However, noting that a motion is pending before Judge Garbis to dismiss Trump as a defendant in the case, Judge Copperthite declined to rule on the government’s request for a protective order that would shield Trump from having to respond to discovery requests directed to him, “pending the resolution of the motion to dismiss President Trump as a party.”  Cooperthite wrote that “no interrogatories or document requests will be directed to President Trump as a party, but may be directed to other parties pursuant to this Memorandum Opinion.  If the Motion to Dismiss is denied, the Court will revisit the issue of the protective order as to President Trump.”

Cooperthite faced a practical dilemma in dealing with the government’s requests to shield Trump from discovery. “On July 27, 2017, President Trump tweeted transgender persons would no longer be able to serve in the military and as for any deliberative process, simply stated this policy occurred after consulting with ‘my Generals and military experts.’  There is no evidence to support the concept that ‘my Generals and military experts’ would have the information Plaintiffs request.  There is no evidence provided to this Court that ‘my Generals and military experts’ are identified, in fact do exist, or that they would be included in document requests and interrogatories propounded to the Executive Branch, excluding the President.  By tweeting his decisions to the world, the President has, in fact narrowed the focus of Plaintiffs’ inquiries to the President himself.  The Presidential tweets put the President front and enter as the potential discriminating official.”  So there is a real question whether discovery that doesn’t include President Trump is at all meaningful, since the ultimate legal question in the litigation is the intent of the government in adopting the ban which is, at bottom, Trump’s intent.  On the other hand, discovery directed at President Trump raises serious questions about separation of powers and the traditional respect for the confidentiality of internal White House policy deliberations.

“So many factors are unknown at this juncture in the litigation,” wrote Copperthite. “It is unknown whether Plaintiffs can obtain the information necessary from the non-Presidential discovery to define the ‘intent’ of the government with respect to the transgender ban.  Defendants offer as an alternative, a stay of discovery with respect to the President, until the Motion to Dismiss the President as a party is decided.  If the President, as the discriminating official, tweeted his transgender ban sua sponte as alleged, this Court sees no alternative to obtaining the intent of the government other than denying the protective order with respect to President Trump.”  However, he wrote, precedents “instruct this Court to give deference to the executive branch because ‘occasions for constitutional confrontation between the two branches should be avoided whenever possible.’”  Thus, Copperthite decided to put off deciding the protective order issue until after Judge Garbis decides whether to dismiss Trump as a party, but for now will order the defendants only to comply with discovery requests directed to defendants other than Trump, Secretary Mattis and the Secretaries of the various military branches.

Justice Department’s New Request to Implement Transgender Policy Denied by Seattle District Court

Posted on: June 19th, 2018 by Art Leonard No Comments

U.S. Senior District Judge Marsha J. Pechman issued an opinion on June 15, rejecting another attempt by the Trump Administration to get her to lift her preliminary injunction in Karnoski v. Trump and allow the latest version of President Trump’s ban on military service by transgender individuals to go into effect while they appeal her earlier rulings to the 9th Circuit Court of Appeals.  Hope springs eternal at the Justice Department, as their new motion does not really make any arguments that Judge Pechman did not reject in her earlier opinions.  The new opinion in Karnoski v. Trump, 2018 U.S. Dist. LEXIS 100789 (W.D. Wash.), rejects the same arguments emphatically.

Last July, the President tweeted his declaration that transgender people would not be allowed to serve in the U.S. military in any capacity, purporting to reverse a policy on transgender service adopted by the Obama Administration and in effect since July 1, 2016. A month later the White House issued a memorandum setting out the President’s new policy in greater detail, including an implementation date in March 2018 and a permanent postponement of the January 1, 2018, date that had been set by Defense Secretary James Mattis last June for allowing transgender individuals to apply to join the service.  Four lawsuits were filed by different groups of plaintiffs in District Courts in Washington, D.C., Baltimore, Seattle, and Riverside (California), challenging the constitutionality of the policy.  All four federal district judges found that the plaintiffs were likely to win on the merits and issued preliminary injunctions intended to have national effect, forbidding implementation of the policy while the litigation proceeded.  None of the district judges were willing to stay their injunctions pending appeal, and the D.C. and 4th Circuit Courts of Appeals also rejected motions to stay, at which point the Justice Department temporarily desisted from further appeals.

Meantime, Trump had ordered Mattis to come up with a written plan for implementation of the August Memorandum, to be submitted to the White House in February. After Mattis submitted his proposal, which departed in some particulars from the August Trump Memorandum, Trump “withdrew” his Memorandum and tweets and authorized Mattis to adopt his plan.  The Justice Department then argued to Judge Pechman that her preliminary injunction should be lifted, because the policy at which it was directed was no longer on the table.

The judge concluded, however, in line with the plaintiff’s arguments, that the new policy was just a slightly modified version of the earlier policy, presenting the same constitutional flaws, so she refused to vacate her injunction. Instead, responding to motions for summary judgment, she ruled that the case should proceed to discovery and a potential hearing on contested fact issues.  The Justice Department filed a notice of appeal to the 9th Circuit on April 30, and filed a motion with Judge Pechman seeking an expedited ruling on the plaintiffs’ motion for summary judgment so that it could be appealed.  However, the judge declined to issue an expedited ruling, as discovery was supposed to take place and disputed facts might require a hearing to resolve.  Discovery has been delayed by the Justice Department’s insistence that much of the information the plaintiffs seek is covered by Executive Privilege, a dubious claim at best. The Justice Department has filed a motion with the 9th Circuit asking it to stay the preliminary injunction pending appeal, but as of June 15 the 9th Circuit had not responded to the motion.

Judge Pechman’s June 15 opinion said that “each of the arguments raised by Defendants already has been considered and rejected by the Court, and Defendants have done nothing to remedy the constitutional violations that supported entry of a preliminary injunction in the first instance.” She pointed out that she was no more persuaded now than she had been previously by the argument that Mattis’s Implementation Plan was a “new and different” policy.

The Justice Department also argued that “the Ninth Circuit and/or this Court ultimately are highly likely to conclude that significant deference is appropriate,” but Judge Pechman responded, “whether any deference is due remains unresolved.  Defendants bear the burden of providing a ‘genuine’ justification for the Ban.  To withstand judicial scrutiny, that justification must ‘describe actual state purposes, not rationalizations’ and must not be ‘hypothesized or invented post hoc in response to litigation.’”  To date,” she observed, “Defendants have steadfastly refused to put before the Court evidence of any justification that predates this litigation.”

She also pointed out that there are four nationwide preliminary injunctions in effect, not just hers. “As a practical matter,” she wrote, “Defendants face the challenge of convincing each of these courts to lift their injunctions before they may implement the Ban.”

The Justice Department also argued that failure to let the government implement the ban “will irreparably harm the government (and the public) by compelling the military to adhere to a policy it has concluded poses substantial risks.” But, Judge Pechman pointed out, at a hearing of the Senate Committee on Armed Services held after her injunction went into effect, both the Army Chief of Staff, General Mark Milley, and the Chief of Naval Operations, Admiral John Richardson, had testified that there were no problems with transgender people serving, as thousands are now doing.  Milley testified that he “monitors very closely” the situation and had received “precisely zer”’ reports of problems related to unit cohesion, discipline and morale.  Similarly, Admiral Richardson testified that he had received no negative reports, and that, in his experience, “it’s steady as she goes.”

The judge had already found that staying her injunction would likely cause irreparable injury to the plaintiffs, and that, in fact, “maintaining the injunction pending appeal advances the public’s interest in a strong national defense, as it allows skilled and qualified service members to continue to serve their country.”  She also rejected the Justice Department’s argument that her injunction should just apply to the nine individual transgender plaintiffs in the case, stating, “The Ban, like the Constitution, would apply nationwide.  Accordingly, a nationwide injunction is appropriate.”  And, she wrote, “The status quo shall remain ‘steady as she goes,’ and the preliminary injunction shall remain in full force and effect nationwide.”

The plaintiffs in the Karnoski case are represented by a small army of lawyers affiliated with Lambda Legal, Kirkland & Ellis (Chicago), Outserve-SLDN, and Seattle local counsel Newman & Du Wors LLP. The state of Washington, co-plaintiff in the case, is represented by attorneys from Kirkland & Ellis and the Washington Attorney General’s Office.  Fifteen states and the District of Columbia, the Constitutional Accountability Center, and Legal Voice (formerly known as the Northwest Women’s Law Center) are also participating in this case as amicus on behalf of the plaintiffs.

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.

Ten Federal Judges Vote “No” on Trump Transgender Military Ban

Posted on: December 23rd, 2017 by Art Leonard No Comments

 

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.

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.

Trump Changes Policy on Military Service by Transgender Individuals

Posted on: August 27th, 2017 by Art Leonard No Comments

On July 26, to the surprise of Defense Department officials and members of the White House staff, Donald Trump transmitted a series of three tweets beginning at 8:55 a.m. announcing a new policy concerning military service by transgender individuals. “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow……  ….Transgender individuals to serve in any capacity in the U.S. Military.  Our military must be focused on decisive and overwhelming….. ….victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.”  This appeared to be a complete reversal of a policy decision made a year earlier by the Defense Department, which after a period of prolonged study that included a report commissioned from the RAND Corporation (a “think-tank” that specializes in producing studies on defense-related issues by contract with the DoD) and widespread consultations within the military and with military allies that allow transgender individuals to serve had concluded to rescind an existing regulation that established a ban on service by transgendered individuals on purported medical grounds.  As a result of the policy newly announced during June 2016, hundreds of transgender service members “came out” to their superior officers, and some service members who had been concealing their gender identity for years began the process of transition with the assurance that the costs would be covered under military health policies.  Estimates of the number of transgender service members ranged from a few thousand as high as 15,000, most of whom have not yet made their presence known to their commanding officers.  This unknown group likely includes many officers as well as enlisted personnel.

Attempts to discern details of the new policy were at first unsuccessful because neither the usual sources in the White House nor the Pentagon had received any advance notice or details. Admiral Paul F. Zukunft, Commandant of the Coast Guard, immediately announced that the Coast Guard would not “abandon” its several openly-transgender members, and that he and his staff had reached out to reassure them.  The other military service heads and the Chairman of the Joint Chiefs of Staff quickly announced that there would be no change of policy until some formal directive came from the Office of the President.  A spontaneous presidential tweet was not deemed by the Pentagon to be an order to abandon an existing published policy.  The White House finally issued a document titled “Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security” on August 25, signed by President Trump, directing a series of steps that appeared to fall far short of the draconian July 26 tweets.

After a paragraph summarizing what had been done the previous summer and noting that the Secretaries of Defense and Homeland Security had extended a July 1, 2017, date for allowing transgender people to join the military to January 1, 2018, the President stated his reasoning: “In my judgment, 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, disrupting 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.”  This was stated in blithe disregard of the fact that over the past year transgender military service members, in reliance on the announced policy change, had come out to their commanders by the hundreds and that there was no evidence during that time of any adverse effect on military operations or unit cohesion, or of significant strain on the military’s budget attributable to this policy change.  There has been no reporting that military commanders had asked to abandon the policy allowing transgender individuals to serve, and there has been no reporting that either Trump or members of his staff have actually reviewed the voluminous materials generated by the review process undertaken by the DoD prior to announcing its change of policy in June 2016, or were reacting to actual data indicating problems over the past year (since there have not been reports of any such problems).

After invoking the president’s powers as Commander in Chief, the Memorandum continues, “I am directing 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. The Secretary of Defense, after consulting with the Secretary of Homeland Security, may advise me at any time, in writing, that a change to this policy is warranted.”

The Memorandum then sets out specific “directives,” apparently intended to be the operative provisions of the Memorandum. First is 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 I find convincing.”  In other words, the existing ban on enlisting transgender individuals will continue indefinitely, but can be ended when the Secretary of Defense convinces the president to end it.  Second is 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.” Interestingly, this directive mentions only “sex reassignment surgical procedures” but not any of the other costs associated with gender transition, including hormone treatment, which may reflect either ignorance by the White House staffers who drafted the Memorandum or a deliberate intention to make the exclusion as narrow as possible, focusing only on the political “flashpoint” of surgery. The Memorandum states that this second directive about surgical expenses will take effect on March 23, 2018.  In other words, transgender individuals currently serving will continue to be covered for sex reassignment surgical procedures at least until March 23, 2018, and continuing beyond then if cutting off coverage on that date interferes with completing surgical procedures already under way.  Or at least, that’s what it appears to say.

Third, in the section titled “effective dates and implementation,” the Memorandum gives the Secretary of Defense until February 21, 2018, to submit to the president a “plan 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. The implementation plan shall adhere to the determinations of the Secretary of Defense, made in consultation with the Secretary of Homeland Security, as to what steps are appropriate and consistent with military effectiveness and lethality, budgetary constraints, and applicable law.  As part of the implementation plan, the Secretary of Defense, in consultation with the Secretary of Homeland Security, shall determine how to address transgender individuals currently serving in the United States military.  Until the Secretary has made that determination, no action may be taken against such individuals under the policy set forth in section 1(b) of this memorandum.”  The Memorandum also has a severability provision, the usual disclaimers accompanying presidential directives about not creating new rights or changing the authority of any government departments or agencies, and permission to the Secretary to publish the Memorandum in the Federal Register.  (It was made immediately available on the White House website.)

On a plain reading, the “effective dates and implementation” section appears to mark a substantial retreat from the absolutist tone of the July 26 tweets. In trying to construe the tweets, there had been speculation that transgender service members would be immediately discharged or pressured to resign in order to avoid discharge.  Leaks from the White House while staff members were working on a written guidance for the president to sign led to reports that transgender enlisted personnel would be allowed to serve out their enlistments but then be denied reenlistment while being encouraged to resign earlier, and that transgender officers could continue to serve their commissions but would be required to resign if being considered for promotions.

Based on the leaks, GLBTQ Legal Advocates and Defenders (GLAD), the Boston-based New England public interest law firm, and the National Center for Lesbian Rights (NCLR), based in San Francisco, with cooperating attorneys from Foley Hoag LLP and Wilmer Cutler Pickering Hale & Dorr LLP, filed a lawsuit on August 9 in the U.S. District Court for the District of Columbia, representing five “Jane Doe” plaintiffs, all presently serving transgender individuals, seeking declaratory and injunctive relief. Doe v. Trump, Case 1:17-cv-01597.  The plaintiffs, with varying lengths of service, present compelling stories about the harms the proposed policy would have on them, based, of course, on what was known when the complaint was filed.  Among them, of course, were interference with ongoing transitions, interference with attaining military pensions (which some were close to vesting), and loss of career and benefits, affecting not only the plaintiffs but their family members as well.  There was also the emotional stress generated by uncertainty about their future employment and welfare.

The three-count complaint asserts violations of equal protection and due process (Fifth Amendment) and invokes the doctrine of estoppel to prevent adverse moves against the plaintiffs and those similarly situated as presently serving transgender members of the military who had been encouraged to “come out” as transgender under the earlier policy. The named defendants, in addition to the president, are Secretary of Defense James Mattis, Chairman of the Joint Chiefs of Staff Joseph F. Dunford, Jr., the Departments of the Army, Air Force, and Coast Guard, Army Secretary Ryan D. McCarthy, Air Force Secretary Heather A. Wilson, Homeland Security Secretary Elaine C. Duke, and, for good measure, THE UNITED STATES OF AMERICA.  There was some speculation and criticism that filing the lawsuit before a formal policy was announced or implemented was premature and might result in a dismissal on grounds of standing or ripeness, but the release of the formal guidance just a few weeks after the suit was filed will undoubtedly lead to the filing of an amended complaint focusing more specifically at the changes announced in the Memorandum.  The lengthy delay specified by the Memorandum for implementing changes may be invoked by the Justice Department in seeking to get this case dismissed.  Perhaps the Memorandum was drafted with this strategic use in mind.

Press coverage of the July 26 tweets showed overwhelming opposition and criticism from media, many government officials, and members of both parties in Congress. Those who voiced support of the president’s announcement came from the House Republicans who had waged a losing battle to amend a pending Defense budget measure to ban use of any appropriations to pay for sex reassignment surgery for military members, and there were soon press reports that supporters of that amendment had specifically asked the president to take steps to prevent spending federal funds for this purpose.  Furthermore, it was reported that threats had been made to block passage of the Defense measure – which was intended to provide some funding for the president’s project to “build the wall” along the U.S. border with Mexico (reflecting his ignorance of world history, and most specifically of the spectacular failure of the vaunted “Maginot Line” constructed after World War I to protect France from any future invasion by German military forces) – unless the president prevented military expenditures on sex reassignment procedures.  To the simple-minded president, the solution was obvious.  Reviving a ban on all military service by transgender individuals meant that there would be no openly transgender individuals in the military seeking to have such procedures performed and, since reversing Obama Administration policies regardless of their merits seems to be the main goal of many of Trump’s actions, simply overturning the Obama Administration policy became his simplistic solution to his political problem.  There was no indication that Trump made this decision after consulting “my Generals” or military experts – at least, the White House never revealed the names of any such individuals who were consulted, and it appeared that Secretary Mattis had merely been informed of the president’s intentions the night before the tweets.  One suspects that Trump’s “expert” was likely Steve Bannon, a former Marine.

The August 25 Memorandum did not require the immediate, or even eventual, discharge of anybody, and appeared to give Secretary Mattis wide discretion to come up with an implementing plan and at least six months to do it, while barring any action against transgender service members during the intervening time. Furthermore, in typical “kick the can down the road” Trump style (which is, admittedly, a typical style of U.S. politicians generally, only more pronounced in this president), it leaves open the possibility that the Obama Administration policies will be left in place, provided Mattis asks for this in writing summoning persuasive evidence that nothing is gained and much is lost by preventing transgender individuals from enlisting or being commissioned out of the service academies or by blocking transgender service members (including commissioned officers) from continuing their service.  Press accounts noted that the anticipated expense of covering sex reassignment surgery was dwarfed by the annual military expenditure on Viagra and similar drugs  (Who knew, as Trump might ask, that the Defense Department, the government’s most “macho” agency, was spending so much money to stiffen the limp genitals of male members?), and that the replacement costs for several thousand fully-trained and productive military members would far outweigh the costs of down-time for the relatively small number of individuals at any given time who might be unavailable for assignment while recovering from sex reassignment surgery.  (There is no indication that the other steps in gender transition, including hormone therapy, are disabling in a way that would interfere with military service.)

As worded, the Memorandum leant itself to the interpretation that with the passage of time, as the immediate political problem that “inspired” Trump to emit his tweets had been surmounted, sober heads could prevail, Mattis could reassure the transgender troops that nothing was happening right away, and eventually the president would accept Mattis’s written recommendation to allow transgender individuals to serve after all. (This interpretation depends on Mattis having the fortitude and political courage to tell the president, as he had done during the transition after the election on the subject of torture as an interrogation device, that Trump’s announced position did not make sense as a matter of military policy.)  Of course, the Memorandum directive means continuing discrimination against transgender individuals who seek to enlist, raising serious constitutional issues in light of the increasing recognition by federal courts that gender identity discrimination is a form of sex discrimination in equal protection doctrine, but the Memorandum, as it plays out, could avoid the loss of employment for transgender individuals now serving, although it would pose continuing emotional stress stemming from the uncertainty of future developments until Mattis convinces the president to countermand his new “policy.”

When the GLAD/NCLR suit was filed, other organizations, including Lambda Legal and ACLU, announced that they would be preparing lawsuits as well, and the release of the Memorandum on August 25 led to immediate announcements that more lawsuits will be filed. “See you in court,” wrote ACLU Executive Director Anthony Romero to the organization’s supporters.  As with other “bold” executive actions by Trump, this anti-transgender initiative may be stopped in its tracks by preliminary injunctions, although the Memorandum was evidently drafted to try to minimize that likelihood by suggesting that nothing much is going to happen right away other than the continuing ban on enlistment.  As to the enlistment ban, it is questionable that the original GLAD/NCLR plaintiffs, all currently serving members, have standing to challenge it, but one expects that an amended complaint would add as plaintiffs some transgender individuals who hope to enlist.