Doe v. Trump, Civil Action No. 17-1597 (CKK)

• Decision Date: 06 August 2018
• Docket Number: Civil Action No. 17-1597 (CKK)
• Citation: 315 F.Supp.3d 474
• Parties: Jane DOE 2, et al., Plaintiffs v. Donald J. TRUMP, et al., Defendants
• Court: U.S. District Court — District of Columbia

315 F.Supp.3d 474

Jane DOE 2, et al., Plaintiffs

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

Civil Action No. 17-1597 (CKK)

United States District Court, District of Columbia.

Filed August 6, 2018

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

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

MEMORANDUM OPINION

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 2017 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 2017 Presidential Memorandum reversed these policies. It indefinitely extended the prohibition against transgender individuals entering the military (a process formally referred to as "accession"), and required the military to authorize the discharge of transgender service members. The President ordered Secretary of Defense James N. Mattis to submit a plan for implementing the policy directives of the 2017 Presidential Memorandum by February 2018. Plaintiffs filed suit and sought preliminary injunctive relief, which the Court granted.

Currently pending before the Court are Defendants' [115] Motion to Dismiss Plaintiffs' Second Amended Complaint, or, in the Alternative, Defendants' Motion for Summary Judgment, and Defendants' [116] Motion to Dissolve the Preliminary Injunction. Upon consideration of the pleadings,¹ the relevant legal authorities, and the record as a whole, the Court DENIES Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint, and DENIES Defendants' Motion to Dissolve the Preliminary Injunction.² Both of these motions are based on the same fundamental premise: that Defendants have recently proposed a "new policy" that will now allow transgender individuals to serve in the military. Based on this premise, Defendants argue in these motions that Plaintiffs no longer have standing, that their claims are moot, and that there is no longer any need for this Court's preliminary injunction. For reasons discussed in more detail below, the Court is not persuaded by these arguments. This case shall proceed, and the Court's preliminary injunction shall continue to maintain the status quo ante.

I. BACKGROUND

Plaintiffs are current and aspiring transgender service members. 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 2017 Presidential Memorandum will have devastating impacts on their careers and their families. Accordingly, they filed this lawsuit challenging those directives and moved this Court to enjoin the implementation of the 2017 Presidential Memorandum. They claimed that the President's directives violate the fundamental guarantees of due process afforded by the Fifth Amendment to the United States Constitution.

On October 30, 2017, the Court issued a preliminary injunction in this case. As particularly relevant here, the Court found that Plaintiffs had standing and were likely to succeed on their Fifth Amendment claim. The Court concluded that, 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 were subject to heightened scrutiny. Plaintiffs claimed that the President's directives could not survive such scrutiny because they were not genuinely based on legitimate concerns regarding military effectiveness or budget constraints, but were instead driven by a desire to express disapproval of transgender people generally. The Court found that a number of factors—including the 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 did not appear to be supported by any facts, and the recent rejection of those reasons by the military itself—strongly suggested that Plaintiffs' Fifth Amendment claim was meritorious. Accordingly, the Court enjoined Defendants from enforcing the President's directives. The effect of the Court's preliminary injunction was to revert to the status quo ante with regard to accession and retention that existed before the issuance of the 2017 Presidential Memorandum.

Defendants appealed, see Defs.' Notice of Appeal, ECF No. 66, and moved this Court to stay the portion of its preliminary injunction that required Defendants to begin accepting transgender individuals into the military on January 1, 2018, see Defs.' Mot. for Partial Stay of Prelim. Inj. Pending Appeal, ECF No. 73. On December 11, 2017, the Court denied Defendants' motion to stay. See Dec. 11, 2017 Order, ECF No. 75.

Defendants then sought the same relief from the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit"). On December 22, 2017, the D.C. Circuit denied Defendants' motion to stay this Court's preliminary injunction. See Doe 1 v. Trump , No. 17-5267, 2017 WL 6553389 (D.C. Cir. Dec. 22, 2017). The D.C. Circuit concluded that Defendants had not demonstrated that they had a strong likelihood of success on appeal, that they would be irreparably harmed absent a stay, or that the stay would not harm the other parties to the proceeding. Id. It held that "given 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, allowing it to take effect would be counter to the public interest." Id. at *3. The D.C. Circuit also explained that "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." Id. After the D.C. Circuit's opinion was issued, Defendants voluntarily dismissed their appeal of this Court's preliminary injunction. The military began permitting openly transgender individuals to accede on January 1, 2018.

This case then moved forward into the discovery stage. Defendants strenuously resisted engaging in discovery. As noted above, the 2017 Presidential Memorandum had called for the Secretary of Defense to submit a plan to implement the President's policy directives by February 2018. Defendants repeatedly argued that discovery should be halted until that plan was submitted. Defendants even argued at one point that Plaintiffs were not entitled to discovery in this case at all. The Court repeatedly rejected Defendants' arguments and ordered Defendants to cooperate with discovery so that this case could move forward efficiently toward an ultimate resolution on the merits. Despite the Court's orders, discovery remains unfinished because Defendants have asserted that a substantial portion of the documents and information sought by Plaintiffs are privileged (pursuant to the deliberative process privilege and the presidential communications privilege), and the parties' disputes about these assertions of privilege remain outstanding.³

In February 2018, as ordered by the 2017 Presidential Memorandum, Secretary of Defense Mattis presented a memorandum to the President that proposed a policy to effectively prevent transgender military service. See Defs.' Mot. to Dissolve the Preliminary Injunction, Ex. 1, ECF No. 96-1 (hereinafter, the "Mattis Implementation Plan"). The Mattis Implementation Plan, unlike the President's 2017 tweet and memorandum, purports not to be a blanket ban on all "transgender individuals."

However, the plan effectively implements such a ban by targeting proxies of transgender status, such as "gender dysphoria" and "gender transition," and by requiring all service members to serve "in their biological sex." Based on the conclusion "that there are substantial risks associated with allowing the accession and retention of individuals with a history or diagnosis of gender dysphoria and require, or have already undertaken, a course of treatment to change their gender," Mattis Implementation Plan at 2, the Mattis Implementation Plan proposes the following policies:

• Transgender persons with a history or diagnosis of gender dysphoria are disqualified from military service, except under the following limited circumstances: (1) if they have been stable for 36 consecutive months in their biological sex prior to accession; (2) Service members diagnosed with gender dysphoria after entering into service may be retained if they do not require a change of gender

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