Doe v. Shanahan
| Decision Date | 08 March 2019 |
| Docket Number | No. 18-5257,18-5257 |
| Citation | 917 F.3d 694 (Mem) |
| Parties | Jane DOE 2, et al., Appellees v. Patrick M. SHANAHAN, in His Official Capacity as Acting Secretary of Defense, et al., Appellants |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Brinton Lucas, Counsel to the Assistant Attorney General, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Hashim M. Mooppan, Deputy Assistant Attorney General, Marleigh D. Dover, and Tara S. Morrissey, Attorneys.
Jennifer Levi argued the cause for appellees. With her on the brief were Paul R.Q. Wolfson, Washington, DC, John T. Byrnes, Washington, DC, Kevin M. Lamb, Washington, DC, Alan E. Schoenfeld, New York, NY, Shannon P. Minter, San Francisco, CA, and Christopher Stoll.
Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Robert E. Toone, Assistant Attorney General, Janet T. Mills, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Maine, Brian E. Frosh, Attorney General for the State of Maryland, Lori Swanson, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Minnesota, Gurbir S. Grewal, Attorney General, Office of the Attorney General for the State of New Jersey, Hector Balderas, Attorney General, Office of the Attorney General for the State of New Mexico, Barbara Underwood, Attorney General at the time the brief was filed, Office of the Attorney General for the State of New York, Joshua H. Stein, Attorney General, Office of the Attorney General for the State of North Carolina, Xavier Becerra, Attorney General, Office of the Attorney General for the State of California, George Jepsen, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Connecticut, Matthew P. Denn, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Delaware, Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, Russell A. Suzuki, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Hawaii, Lisa Madigan, Attorney General at the time the b rief was filed, Office of th e Attorney Gen eral for the S tate of Illino is, Tom Miller, Attorney General, Office of the Attorney General for the State of Iowa, Peter F. Kilmartin, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Rhode Island, Thomas J. Donovan, Jr., Attorney General, Offi ce of the Attorne y General for the State of Vermont, Mark R. Herring, Attorney General, Office of the Attorney General for the Commonwealth of Virginia, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, and Josh Shapiro, Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, were on the brief for amici curiae The States of Massachusetts, et al. in support of appellees and affirmance of the District Court decision.
Peter C. Renn, Diana K. Flynn, Chicago, IL, and Tara L. Borelli, Los Angeles, CA, were on the brief for amici curiae National Center for Transgender Equality and Other Advocacy Organizations in support of plaintiffs-appellees and affirmance.
Andrew J. Ehrlich, New York, NY, George W. Kroup, New York, NY, Eric A. Felleman, New York, NY, and Craig A. Benson, Washington, DC, were on the brief for amici curiae American Veterans Alliance, et al. in support of plaintiffs-appellees and in support of affirmance.
Eamon P. Joyce, New York, NY, John T. Hebden, Christopher A. Eiswerth, Washington, DC, and Robert S. Chang, Seattle, WA, were on the brief for amici curiae Asian American Legal Defense and Education Fund, et al. in support of plaintiffs-appellees.
Cynthia Cook Robertson, Washington, DC, and Suzanne B. Goldberg were on the brief for amici curiae The National Organization for Women Foundation, et al. in support of plaintiffs-appellees.
Douglas H. Hallward-Driemeier, Washington, DC, Irina Finkel, New York, NY, and Douglas E. Brayley, Boston, MA, were on the brief for amici curiae The Organization of Historians and 47 Historians of the Military, National Security, and Foreign Relations supporting plaintiffs-appellees.
Elizabeth B. Wydra, San Francisco, CA, and Ashwin P. Phatak were on the brief for amicus curiae Constitutional Accountability Center in support of plaintiffs-appellees.
Steven G. Thompson Reed, Washington, DC, was on the brief for amici curiae The Service Women’s Action Network and Other Veterans Service Organizations and Veterans Advocacy Groups in support of affirmance.
Harold Hongju Koh and Phillip Spector were on the brief for amici curiae Retired Military Offices and Former National Security Officials in support of plaintiffs-appellees.
Daniel S. Harawa, Sherrilyn A. Ifill, New York, NY, and Janai S. Nelson were on the brief for amicus curiae NAACP Legal Defense & Educational Fund, Inc. in support of appellees and affirmance.
Devi M. Rao, Washington, DC, was on the brief for amici curiae American Medical Association and Seven Other HealthCare Organizations in support of plaintiffs-appellees and affirmance.
Stuart F. Delery, Washington, DC, was on the brief for amicus curiae The Trevor Project in support of plaintiffs-appellees and affirmance.
Susan Baker Manning and Stephanie Schuster, Washington, DC, were on the brief for amici curiae Vice Admiral Donald C. Arthur, USN (Ret.) et al. in support of plaintiffs-appellees and affirmance of the District Court decision.
Before: Griffith and Wilkins, Circuit Judges, and Williams, Senior Circuit Judge.
"[T]he passage of time frequently brings about changed circumstances — changes in the nature of the underlying problem, changes in governing law or its interpretation by the courts, and new policy insights — that warrant reexamination of the original judgment." Horne v. Flores , 557 U.S. 433, 448, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009). As we described in the Judgment, the District Court’s finding of no changed circumstances and its denial of the motion to dissolve the preliminary injunction was error. I write separately to elaborate on why I believe that was the case.
First, we must review some history and background.
At issue in this case is the regulation of military service by transgender persons. As noted in the report of the Transgender Military Service Commission chaired by former Surgeon General Jocelyn Elders, a prevalent theme in this area is that "regulatory terminology that references transgender identity is inconsistent." J.A. 753. Thus, to avoid confusion, it is critically important to define terms and characterize military regulations carefully and precisely.
Based on the record, transgender persons are "individuals who identify with a gender different from the sex they were assigned at birth." J.A. 606; see also J.A. 263. Thus, while a transgender woman may have been assigned the male sex at birth, she nonetheless identifies with the female gender. Similarly, a transgender man was assigned the female sex at birth but identifies with the male gender.
As explained by amici American Medical Association and seven other healthcare organizations, "[e]very person has a gender identity, which cannot be altered voluntarily or necessarily ascertained immediately after birth." AMA Amicus Br. 6. A person "communicates gender identity to others through behavior, clothing, hairstyles, voice, or body characteristics," id. , and the extent to which transgender individuals express their gender identity varies from person to person. As found by the RAND Corporation in a report for Former Secretary of Defense Ash Carter, some transgender persons express their gender identity though "transitioning," which is "the act of living and working as a gender different from that assigned at birth." J.A. 606 (emphasis added). But according to the information that we have in the record, only "[a] subset of transgender individuals may choose to transition ..." J.A. 606. As explained in the Transgender Military Service Commission report:
Being transgender does not mean that one has already transitioned to a different gender, or that such a transition will occur in the future. It means recognizing that the gender one has always had does not match the physical gender that was assigned at birth. The transgender community includes people who have already transitioned to the other gender, those who have not yet transitioned but who plan to do so, those who identify with the other gender but do not wish to transition, and others.
Some, but not all, transgender persons develop gender dysphoria, which manifests as stress and anxiety caused by the incongruence between the sex assigned to the person at birth and the person’s preferred gender identity. J.A. 622-23. Gender dysphoria is recognized by the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), and is often treated with "psychotherapy, hormone therapy, surgery, and changes to gender expression and role (i.e., how people present themselves to the world ...)." J.A. 623. Thus, many transgender persons with gender dysphoria require medical treatment, including transitioning to their preferred gender; however, "[n]ot all [transgender persons diagnosed with gender dysphoria ] will prefer or need all or any of those options." Id .
Prior to 2015, the Department of Defense (DoD) effectively banned all transgender persons from either joining or remaining in the military. J.A. 275; J.A. 734; J.A. 784. These accession and retention restrictions were enforced through medical standards that precluded applicants from joining the military if they had "defects of the genitalia" including but not limited to change of sex, and through...
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