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On Monday, Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia issued a memorandum opinion and order in the case of Jane Doe 1, et al., v. Donald J. Trump, et al., partially enjoining a presidential memorandum issued on Aug. 25. The memorandum extended a prohibition against transgender individuals entering the military (“accession directive”) and required the military to authorize, no later than March 23, 2018, the discharge of transgender service members (“retention directive”). Kollar-Kotelly:
- granted a preliminary injunction against the accession and retention directives;
- dismissed for lack of standing the plaintiffs’ challenge to the presidential memorandum’s prohibition against the expenditure of military resources on sex reassignment surgery; and
- dismissed without prejudice the plaintiffs’ claim of relief under a theory of estoppel against the government.
The effect of the court’s order is to revert to the retention and accession policies established in a June 30, 2016 directive-type memorandum (DTM) issued by then-Defense Secretary Ash Carter and later modified by Defense Secretary Jim Mattis one year later, which permitted open service by and government-funded medical care for transgender service members.
Previously, on Lawfare, Russell Spivak covered the presidential memorandum, Helen Klein Murillo summarized the service members’ claim, and Michel Paradis discussed the merits of possible arguments. Below is a summary of Monday’s opinion.
Kollar-Kotelly first summarizes the evolution in the Department of Defense’s (DoD) policy towards transgender service. Prior to 2014, transgender individuals were generally banned from entering the military, with a possible exception for those who receive a medical waiver for accession. If already serving, they could be separated at the discretion of military commands “for the convenience of the government.” In August 2014, DoD issued a new regulation eliminating a “DoD-wide list of conditions that would disqualify persons from retention in military service, including the categorical ban on open service by transgender persons.” Subsequently, in July 2015, then-Secretary Carter issued a memorandum prohibiting the service secretaries from involuntarily separating transgender service members or denying them reenlistment or continuation of active or reserve service on the basis of their gender identity. The memo also ordered the formation of a DoD working group to formulate policy options regarding service by transgender individuals. Based upon the information it collected and the results of a RAND study it commissioned, the working group concluded that transgender individuals should be allowed to serve openly in the military. Following that recommendation, Carter issued the DTM stating that open service by transgender Americans was “consistent with military readiness” and establishing policy and procedures for “the retention, accession, separation, in-service transition and medical coverage for transgender personnel serving in the Military Services,” to take full effect no later than July 1, 2017. DoD promulgated a policy-implementation handbook in Sept. 2016, and the individual services issued their own implementing memoranda later in the fall.
The Trump administration reversed course. On June 30, 2017, Mattis deferred acceding transgender applicants into the military until Jan. 1, 2018 and called for further review of accession plans and possible impacts to military readiness. On July 26, President Donald Trump wrote in a series of tweets:
After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow......— Donald J. Trump (@realDonaldTrump) July 26, 2017