Doe v. Trump

• Decision Date: 30 October 2017
• Docket Number: Civil Action No. 17–1597 (CKK)
• Citation: 275 F.Supp.3d 167
• Parties: Jane DOE 1, et al., Plaintiffs v. Donald J. TRUMP, et al., Defendants
• Court: U.S. District Court — District of Columbia

275 F.Supp.3d 167

Jane DOE 1, et al., Plaintiffs

v.Donald J. TRUMP, et al., Defendants

Civil Action No. 17–1597 (CKK)

United States District Court, District of Columbia.

Filed October 30, 2017

Kevin Matthew Lamb, Paul Reinherz Quitma Wolfson, Wilmer, Cutler, Pickering, Hale & Dorr, LLP, Washington, DC, Adam M. Cambier, Christopher R. Looney, Harriet Hoder, Wilmer Cutler Pickering Hale & Dorr LLP, Boston, MA, Alan E. Schoenfeld, Wilmer Cutler Pickering Hale & Dorr, LLP, New York, NY, Amy Whelan, Christopher F. Stoll, Shannon P. Minter, National Center for Lesbian Rights, San Francisco, CA, Claire Laporte, Daniel L. McFadden, Kathleen M. Brill, Matthew E. Miller, Michael J. Licker, Rachel C. Hutchinson, Foley Hoag, LLP, Boston, MA, Jennifer Levi, Mary L. Bonauto, GLBTQ Legal Advocates & Defenders, Boston, MA, Nancy Lynn Schroeder, Wilmer Cutler Pickering Hale & Dorr LLP, Los Angeles, CA, for Plaintiffs.

Ryan Bradley Parker, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

(October 30, 2017)

COLLEEN KOLLAR–KOTELLY, United States District Judge

On July 26, 2017, President Donald J. Trump issued a statement via Twitter announcing that "the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military." A formal Presidential Memorandum followed on August 25, 2017. Before the Presidential Memorandum, the Department of Defense had announced that openly transgender individuals would be allowed to enlist in the military, effective January 1, 2018, and had prohibited the discharge of service members based solely on their gender identities. The Presidential Memorandum reversed these policies. First, the Memorandum indefinitely extends a prohibition against transgender individuals entering the military, a process formally referred to as "accession" (the "Accession Directive"). Second, the Memorandum requires the military to authorize, by no later than March 23, 2018, the discharge of transgender service members (the "Retention Directive").

The Department of Defense is required to submit a plan implementing the directives of the Presidential Memorandum by February 21, 2018. On September 14, 2017, Secretary of Defense James Mattis promulgated Interim Guidance establishing Department of Defense policy toward transgender service members until the directives of the Presidential Memorandum take effect. Pursuant to the Presidential Memorandum and the Interim Guidance, the protections afforded to transgender service members against discharge lapse early next year.

Plaintiffs are current and aspiring service members who are transgender. Many have years of experience in the military. Some have decades. They have been deployed on active duty in Iraq and Afghanistan. They have and continue to serve with distinction. All fear that the directives of the Presidential Memorandum will have devastating impacts on their careers and their families. They have moved the Court to enjoin the directives of the Presidential Memorandum, believing that these directives violate the fundamental guarantees of due process afforded by the Fifth Amendment to the United States Constitution. Defendants have moved to dismiss this case, principally on the basis that the Court lacks jurisdiction. Although highly technical, these jurisdictional arguments reduce to a few simple points: the Presidential Memorandum has not effected a definitive change in military policy; rather, that policy is still subject to review; until that review is complete, transgender service members are protected; and any prospective injuries are too speculative to require judicial intervention.

These arguments, while perhaps compelling in the abstract, wither away under scrutiny. The Memorandum unequivocally directs the military to prohibit indefinitely the accession of transgender individuals and to authorize their discharge. This decision has already been made. These directives must be executed by a date certain, and there is no reason to believe that they will not be executed. Plaintiffs have established that they will be injured by these directives, due both to the inherent inequality they impose, and the risk of discharge and denial of accession that they engender. Further delay would only serve to harm the Plaintiffs. Given these circumstances, the Court is in a position to preliminarily adjudicate the propriety of these directives, and it does so here.

The Court holds that Plaintiffs are likely to succeed on their Fifth Amendment claim. As a form of government action that classifies people based on their gender identity, and disfavors a class of historically persecuted and politically powerless individuals, the President's directives are subject to a fairly searching form of scrutiny. Plaintiffs claim that the President's directives cannot survive such scrutiny because they are not genuinely based on legitimate concerns regarding military effectiveness or budget constraints, but are instead driven by a desire to express disapproval of transgender people generally. The Court finds that a number of factors—including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the President's announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself—strongly suggest that Plaintiffs' Fifth Amendment claim is meritorious.

Accordingly, following an exhaustive review of the record, the pleadings,¹ and the relevant authorities, the Court GRANTS–IN–PART and DENIES–IN–PART Plaintiffs' Motion for Preliminary Injunction. Defendants shall be preliminarily enjoined from enforcing the Accession and Retention Directives, corresponding with sections 1(b) and 2(a) of the Presidential Memorandum, until further order of the Court or until this case is resolved. The effect of the Court's Order 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 a June 30, 2016 Directive-type Memorandum and later modified by Secretary of Defense James Mattis on June 30, 2017.

The Court also GRANTS–IN–PART and DENIES–IN–PART Defendants' Motion to Dismiss. The Court has jurisdiction over and reaches the merits of Plaintiffs' Fifth Amendment claim as it pertains to the Accession and Retention Directives. Plaintiffs have also challenged the Presidential Memorandum's prohibition against the expenditure of military resources on sex reassignment surgeries. Because no Plaintiff has established a likelihood of being impacted by that prohibition, the Court lacks jurisdiction to adjudicate the propriety of this directive. Finally, Plaintiffs have also claimed relief under a theory of estoppel. At this time, that claim will be dismissed without prejudice because the Amended Complaint lacks allegations of the sort of particularized representations, reliance, or government misconduct that could justify estoppel against the government. Plaintiffs may file a further amended complaint with respect to estoppel.

I. BACKGROUND

A. The Military's Policy Toward Transgender Service

1. Military Policy Prior to 2014Accession

Prior to 2014, Department of Defense Instruction ("DODI") 6130.03 "contain[ed] a list of disqualifying physical and mental conditions that preclude[d] applicants from joining the military ...." Lamb Decl., Ex. B (Palm Center Report of the Transgender Service Commission), at 7. Disqualifying conditions included "defects of the genitalia including but not limited to change of sex," and "[c]urrent or history of psychosexual conditions, including but not limited to transsexualism, ... transvestism

, ... and other paraphilias." Id. ; see also Defs.' Mem. at 4 ("For decades, [disqualifying] conditions [under DODI 6130.03] have included 'transsexualism.' ").

DODI 6130.03 also requires that the "Secretaries of the Military Departments and Commandant of the Coast Guard shall ... [a]uthorize the waiver of the standards in individual cases for applicable reasons and ensure uniform waiver determinations." Lamb Decl., Ex. B, at 7. Service-specific implementing rules set forth the waiver process for each branch of the military. For example, under the applicable Army regulations, "[e]xaminees initially reported as medically unacceptable by reason of medical unfitness ... may request a waiver of the medical fitness standards in accordance with the basic administrative directive governing the personnel action." Army Reg. 40–501 (Standards of Medical Fitness), ¶ 1–6(b); see also Lamb Decl., Ex. B, at 7. Although Defendants contend that transgender-related conditions were and remain subject to waiver, see Defs.' Mem. at 4, evidence in the record suggests otherwise. At least under the pertinent regulations as they existed prior to 2014, "because some conditions related to transgender identity [were] grounds for discharge, and because recruiters [could not] waive a condition upon enlistment that would be disqualifying for retention, transgender individuals [could not] obtain medical waivers for entrance into the military." Lamb Decl., Ex. B, at 8. A March 2014 report was unable to find "any instances in which transgender-related conditions have been waived for accession[,]" id. , and Defendants have adduced no evidence of waivers ever being granted for this purpose.

Retention

Pertinent regulations prior to 2014 also appear to have provided military commanders with discretion to separate enlisted personnel for transgender-related conditions. In particular, DODI 1332.14, which "controls administrative separations for enlisted persons," provided that a "service member may be separated for the convenience of the government and at the discretion of a commander for 'other designated physical or mental conditions,' a category defined to include 'sexual gender and identity disorders.' " Lamb...