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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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Federal Judge Blocks Implementation of Trump’s Transgender Military Ban

Posted on: October 31st, 2017 by Art Leonard No Comments

In a blunt rebuke to President Donald Trump, U.S. District Judge Colleen Kollar-Kotelly, discerning no factual basis for Trump’s July 26 tweet decreeing a ban on military service by transgender people or the August 25 Memorandum fleshing out the decreed policy, issued a preliminary injunction on October 30, the effect of which is “to revert to the status quo with regard to accession and retention that existed before the issuance of the Presidential Memorandum – that is, the retention and accession policies established in the June 30, 2016 Directive-type Memorandum as modified by Secretary of Defense James Mattis on June 30, 2017.” Doe v. Trump, 2017 U.S. Dist. LEXIS 178892, 2017 WL 4873042 (D.D.C., Oct. 30, 2017).

The practical effect of the preliminary injunction, which will stay in effect until the court issues a final ruling on the merits of the case (unless an appellate court reverses it in the meanwhile) is that the policy on transgender service announced on June 30, 2016, by former Secretary of Defense Ashton Carter during the Obama Administration, will remain in effect and the President’s tweet and subsequent Memorandum purporting to revoke these policies, which the Administration planned to put into effect in February and March, are blocked for now. By incorporating reference to Secretary Mattis’s June 30, 2017, Directive, the judge’s order requires that the Defense Department allow transgender people to enlist beginning January 1, 2018.

Trump’s August 25 Memorandum had specified that the policy it announced would go into effect by no later than March 23, 2018, regarding the requirement to discharge all transgender personnel, and that the ban on enlistments would be permanent, at least until the President was persuaded that it should be lifted.

Key to the October 30 ruling was Kollar-Kotelly’s conclusion that at this stage the plaintiffs, represented by National Center for Lesbian Rights and GLBTQ Advocates and Defenders, have adequately established that they are likely to prevail on the merits of their claim that a ban on military service by transgender people violates their equal protection rights under the 5th Amendment, and that allowing the ban to go into effect while the case is pending would cause irreparable harm to them that could not be remedied later by monetary damages.

The judge concluded that a policy that explicitly discriminates against people because of their gender identity is subject to “heightened scrutiny” under the 5th Amendment, which means that it is presumed to be unconstitutional and the burden is placed on the government to show an “exceedingly persuasive” reason to justify it. “As a class,” she wrote, “transgender individuals have suffered, and continue to suffer, severe persecution and discrimination.  Despite this discrimination, the court is aware of no argument or evidence suggesting that being transgender in any way limits one’s ability to contribute to society.”

This was staking out new ground in the absence of a clear precedent by the U.S. Court of Appeals for the District of Columbia Circuit or the Supreme Court. Alternatively, she noted, other courts of appeals in the 6th and 11th Circuits have ruled that gender identity discrimination is really sex discrimination and should be evaluated by the same “heightened scrutiny” standard that courts use to evaluate sex discrimination claims against the government.  (A petition by the Kenosha, Wisconsin, school district is pending at the Supreme Court presenting the question whether gender identity discrimination is sex discrimination, in the context of Title IX of the Education Amendments of 1972 and bathroom access in public schools.)

As for the justifications advanced by the government for Trump’s ban, the judge wrote, “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.”

The judge also concluded that the public interest is served by blocking the ban, since harm to the military from allowing transgender service was non-existent while letting the ban go into effect would actually impose significant costs and readiness issues on the military, including the loss of a large investment in training of transgender people now serving and the cost of recruiting and training people to take their places.

A major part of Judge Kollar-Kotelly’s decision was devoted to refuting the Administration’s contention that she did not have jurisdiction to decide the case. She characterized their arguments as raising a “red herring,” at least in terms of the retention and accession portions of Trump’s Memorandum.  The government argued that because the August 25 Memorandum delayed implementation of the policy until next year, nobody had standing to challenge it yet, as none of the individual plaintiffs in the case has suffered tangible harm.  The judge accepted the plaintiffs’ argument that both intangible and tangible harm was imposed as soon as Trump declared his policy, stigmatizing transgender people as unworthy to serve, tarnishing their reputations, and creating uncertainty and emotional distress as to their future employment.  Furthermore, federal courts have long held that depriving a person of equal protection of the laws imposes an injury for purposes of constitutional standing to mount a legal challenge against a policy.

The issue that seems to have provoked Trump’s July 26 tweet was military payment for sex reassignment surgery. Several Republican House members, outraged by that chamber’s rejection of their proposed amendment to the Defense appropriations bill to bar any payment by the Department for such procedures, complained to the president and reportedly threatened to withhold their support for the must-pass appropriations bill if their demand was not met.  The simple-minded president apparently jumped to the obvious conclusion: barring all transgender people from the service would solve the problem while satisfying the anti-transgender biases of his political base.  In common with his other major policy proclamations by tweeting, this seemed to be impulsive, not vetted for legality or defensibility, and oblivious to the harm it would do to thousands of people.

The way in which Trump announced his decision contributed to the judge’s conclusions. The policy was announced without any factual basis, by contrast with the 2016 policy decision, which followed several years of study, a report by the RAND Corporation (a widely-respected non-partisan military policy think-tank), wide-ranging surveys and participation of numerous military officials.  The outcome of all this study was a well-documented conclusion that there was no good reason why transgender people should not be allowed to serve, explicitly rejecting the grounds raised by Trump in support of his decision.  The judge noted the irony of Trump’s methodology: first announce a ban, then a month later task Defense Department leaders with setting in motion a process to study the issue, and mandate that the policy go into effect several months later, with the study limited to recommending how to implement the ban.

Attorneys for the government argued, in effect, that the policy is still in development and that at present it is not clear what the final, implemented policy will be, including whether it would provide discretion to military leaders to decide whether to discharge individual transgender personnel or to allow particular individuals to enlist (such as, for example, highly qualified people who had already transitioned and thus would not be seeking such procedures while serving). Their arguments lacked all credibility, however, in light of the absolute ban proclaimed by Trump on July 26, and the directive to implement that ban contained in the August 25 Memorandum.

Judge Kollar-Kotelly granted the government’s motion to dismiss the part of the complaint relying on the theory of “estoppel” as opposed to their constitutional claim. She found that none of the plaintiffs had alleged facts that would support a claim that they had individually relied on the June 2016 policy announcement and its implementation in a way that would support the rarely-invoked doctrine that the government is precluded from changing a policy upon which people have relied.

Despite its length (76 pages), Judge Kollar-Kotelly’s opinion left some ambiguity about the very issue that sparked Trump’s tweet – availability of sex reassignment surgery for transgender personnel while this case is pending. Trump cited the cost of providing such treatment as one of the reasons for his ban, but the judge noted that the actual costs were a trivial fraction of the Defense Department’s health care budget.

However, the judge granted the government’s motion to dismiss the part of the complaint that specifically challenged Trump’s August 25 Memorandum dealing with sex reassignment surgery, because she found that none of the individual plaintiffs in the case had standing to challenge it or to seek preliminary injunctive relief against it while the case is pending. Among other things, the August 25 Memorandum provided that such procedures could continue to be covered until the implementation date of the policy next year, and that transitions that were under way could progress to completion.  And the government represented to the court that those procedures would continue to be covered at least until final implementation of the policy.  The dismissal was “without prejudice,” which means that if additional plaintiffs with standing are added to the complaint, this part of the case could be revived.

On the other hand, attorneys for the plaintiffs, announcing that the ruling was a total victory for their clients, argued that the order to revert to the June 2016 policy while the case is pending necessarily included the part of that policy that allowed for coverage of sex reassignment by the Defense Department for serving personnel. This conclusion is plausible but not certain, because the conclusion of the judge’s opinion specifies that the preliminary injunction applies to “the retention and accession policies” established in June 2016 and doesn’t explicitly say anything about coverage of reassignment procedures.  Of course, if DoD balks at covering the procedures, the plaintiffs can go back to the judge for clarification.

Response to the opinion by the White House and the Justice Department was dismissive, suggesting that an appeal is likely. Judge Kollar-Kotelly’s opinion is not the last word, since similar motions for preliminary injunctions are on file in several other district courts around the country where other groups of plaintiffs have filed challenges to the ban.

Judge Kollar-Kotelly’s judicial career began when President Ronald Reagan appointed her to be a District of Columbia trial judge in 1984. President Bill Clinton appointed her to the U.S. District Court in 1997.  Although she became eligible to take senior status many years ago, she continues to serve as a full-time active member of the federal trial bench at age 74.  Her rulings in major cases exhibit an independent, non-partisan approach to deciding politically-charged cases, with no clear predispositions reflecting the presidents who appointed her.

 

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.