Criminal Justice & the Rule of Law

Transgender Service Ban Nears Implementation

Sarah Grant
Saturday, March 9, 2019, 12:33 PM

Note: The Defense Department has issued a directive implementing the department's policy, effective April 12, 2019.

Published by The Lawfare Institute
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Note: The Defense Department has issued a directive implementing the department's policy, effective April 12, 2019.

On March 7, Judge George Russell III of the U.S. District Court for the District of Maryland issued a stay of the preliminary injunction in Stone v. Trump, removing, in the government’s view, the sole remaining obstacle to the Defense Department’s implementation of a policy prohibiting transgender individuals from serving in accordance with their gender identity (the “Mattis policy”). Under the new policy, only those transgender Americans who are willing to live in accordance with their assigned gender rather than with their gender identity will be permitted to join and continue to serve, with the exception of currently serving transgender service members who underwent gender transition and had their official gender markers in the military personnel system changed while the prior policy permitting transgender individuals to serve in accordance with their gender identity (the “Carter policy”) was in effect.

There are currently four active lawsuits across the country challenging the policy: Stone v. Trump, in the District of Maryland; Doe 2 v. Shanahan, in the District of Columbia; Karnoski v. Trump, in the Western District of Washington; and Stockman v. Trump, in the Central District of California. Prior Lawfare coverage of the litigation can be found here.

In January, the U.S. Court of Appeals for the D.C. Circuit rendered judgment vacating the preliminary injunction in Doe 2 v. Shanahan, and the Supreme Court subsequently granted a stay of the preliminary injunctions in Karnoski v. Trump and Stockman v. Trump. This left in place only the preliminary injunction in Stone v. Trump. In the order granting the stay in Stone, Judge Russell wrote that the district court “is bound by the Supreme Court’s decision to stay the nationwide preliminary injunctions [in Karnoski and Stockman] in their entirety” and that he could not narrow the scope of the injunction to just the plaintiffs before him because the Supreme Court “implicitly rejected” that option in the other two cases. The judge assessed that he could not “materially distinguish Plaintiffs in this case from those for whom the Supreme Court rejected a narrow tailoring of the stays,” and he therefore had no choice but to grant the government’s motion for a stay.

The day after Judge Russell’s ruling, the government filed a notice with the district court in D.C. stating that Acting Secretary of Defense Patrick Shanahan now “plans to release a Directive-Type Memorandum (DTM) formally implementing the new policy in the near future.” Attorneys for the plaintiffs in Doe 2 contend that, despite what the government says, the injunction in D.C. remains in place because the D.C. Circuit has not yet issued its mandate, as the period for the plaintiffs to seek rehearing en banc has not yet run. The 21-day window in which the plaintiffs may request rehearing opened on March 8, when two judges on the D.C. Circuit panel released full opinions in support of the per curiam judgment the court issued in January.

Judge Robert Wilkins of the D.C. Circuit wrote a concurring opinion focusing on the plaintiffs’ failure to provide evidence that the Mattis policy amounts to a blanket ban on service by transgender individuals because it requires personnel to serve in accordance with their biological sex. In his view, the district court was wrong to treat the Mattis policy as indistinguishable from, and equally constitutionally problematic as, the president’s July 2017 tweets and the first presidential memorandum issued in August 2017, which categorically banned service by transgender individuals (except those grandfathered in during the Obama administration). Judge Wilkins noted that “intemperate contemporaneous statements by policymakers, departures from normal procedures, and adoption of policies unsupported or contrary to data can be considered evidence that invidious discrimination was a ‘motivating factor’ in the decision” to ban transgender people from service and that “the course of events leading up to the 2017 Presidential Memorandum had more than a whiff of the stench of arbitrariness and of a ‘bare ... desire to harm a politically unpopular group.’” In contrast, he said, the Mattis policy was crafted following an independent study of the issue by a panel of senior military and civilian experts and was supported by a detailed report laying out the study group’s methodology and findings.

With the procedural defects fixed, the lawfulness of the policy then turns on whether in substance it enacts an unconstitutionally discriminatory regime. In Judge Wilkins’s view, the district court’s judgment that the policy likely is unconstitutional was based on an unproven assumption about what it means to be transgender. The district court, he said, erred in failing to draw a distinction between identifying with a different gender from that assigned at birth and wanting to live in accordance with that gender, and ignoring the possibility that some transgender individuals would be willing, and under the Mattis policy are able, to serve in their assigned gender:

Plaintiffs acknowledge that the term transgender is often defined to include persons who identify with another gender but who do not wish to live or work in accordance with that preferred gender, but they blithely dismiss that definition with the argument that any “broader meaning [of transgender] is irrelevant to this case.” Appellee Br. 23. How so? Plaintiffs want us to ignore the fact that they did not present evidence showing that all transgender persons necessarily “live” or “work” in their preferred gender rather than their biological sex. There were no findings below describing what it means to “serve in one’s biological sex,” let alone findings that all transgender persons either currently serving or applying to join the military must suppress who they are to “serve in their biological sex” and are unwilling or unable to do so. Instead, Plaintiffs want us to adopt the position that transgender persons who desire to serve in their biological sex are not really transgender, at least for the purpose of this lawsuit. But we cannot simply substitute Plaintiffs’ ipse dixit for evidence.

Because, under the Mattis policy, transgender individuals “may identify as they wish with their preferred gender while complying with the service requirements applicable to the DEERS gender marker for their biological sex,” the policy does not target all transgender people and categorically prohibit them from serving. The district court was therefore wrong “to conclude that the Mattis policy was not a substantive change from the 2017 Presidential Memorandum” and to maintain the preliminary injunction on the basis of that conclusion.

Judge Wilkins—responding to his colleague, Judge Stephen Williams, who would have reached the merits of the constitutional issue and ordered the district court to dismiss the case as a matter of law (more on that below)—also explained why he believed it was correct to limit the ruling to the above conclusions and remand to the district court for discovery and further proceedings. “Having found adequate non-constitutional reasons to vacate the preliminary injunction,” Judge Wilkins wrote, “it is inappropriate to seek out constitutional questions to decide in order to reach the same result.” There remain significant factual disputes in the case, including what the purpose of the policy is, “how the Mattis Plan impacts transgender service members who must comply with the service requirements for their biological sex,” and the extent to which Wilkins’s distinction between those who identify as transgender and those who wish to live in accordance with their gender identity actually maps onto reality, and those facts potentially influence the constitutional analysis. Accordingly, the case cannot, in Wilkins’s view, be dismissed as a matter of law at this time. Judge Williams, Wilkins said, goes too far in concluding, essentially, that “the government is immune from all discovery explaining the operation and purpose of its military policies”: “It is one thing to defer to the government’s justification for military policy; it is quite another not to require the government to explain fully, under oath, that justification. The former custom of deference is reasonable, but the latter is imprudent.”

Judge Williams concurred in the result but wrote separately because he believes that “the record and the law require dismissal of plaintiffs’ claims,” and that the district court made “wholly mistaken assumptions about the nature of constitutional review of military personnel policy.” Specifically, Judge Williams said, the “highly intrusive examination of the mental processes of the civilian and military leadership of a coordinate branch of government” that the district court seemed willing to permit is inappropriate under prevailing separation-of-powers doctrine.

In his view, the Mattis policy is not a “ban” but rather a policy that allows transgender service members to serve, “like all other Service members,” in the gender they were assigned at birth. “The Mattis policy—by declining to make the same accommodations for gender transition as the Carter policy—does not translate into a ‘transgender ban’ ... and no amount of discovery will change ‘this fact.’” The question in the case, therefore, is:

whether the Constitution requires the current administration to reinstate a policy created by the previous administration allowing certain transgender individuals to serve in their preferred gender rather than their biological sex, as all service members have for decades .... For those transgender persons for whom the value of serving otherwise than in their biological sex exceeds the value of being in the military, of course, the policy thwarts their wish to serve. The Constitution does not compel the military to yield to their preference.

Because the Mattis policy does not effectuate a blanket ban on service by individuals who identify as transgender but rather discriminates on the basis of a medical condition, gender dysphoria, there is no constitutional deficiency. It was well within the military’s competence and authority, Judge Williams concluded, to decide that experiencing gender dysphoria renders an individual unsuited to the particular hardships of military life and that allowing transgender individuals to undergo transition or merely serve in accordance with their gender identity would cause excessive disruption to military readiness and unit cohesion. Citing various Supreme Court precedents, including Orloff v. Willoughby, Loving v. United States, Goldman v. Weinberger and Rostker v. Goldberg, Judge Williams noted that “the Constitution itself requires” deference to the military’s and the president’s judgment in such matters.

He also discussed the various contexts in which the military maintains sex distinctions—physical fitness testing, berthing and bathing facilities, grooming and uniform standards—and noted that the Defense Department study underlying the Mattis policy found that “‘clear sex-differentiated lines’ preserve unit cohesion by, among things, protecting reasonable expectations of privacy, avoiding unfairness (or perceptions thereof), ensuring physical safety, and minimizing leadership challenges that would otherwise arise.” He also emphasized that the “Supreme Court has expressly acknowledged the (rather widely shared) understanding of a key premise of the military judgment: that, in the military setting, physical differences between men and women ... are enduring: The two sexes are not fungible” (internal modifications and quotation marks omitted). The plaintiffs’ preferred policy permitting any transgender individual, not just those who undergo surgical and hormonal transition, to change their official gender markers, Judge Williams says, “would demolish the military’s sex-based standards.”

Given the sensitivity of the judgments and the military’s particular competence to make them, it is inappropriate, in Judge Williams’s view, for the judiciary to interfere: “The military’s decision to ‘proceed cautiously’ was thus reasonable. We cannot, after all, substitute our own assessment for the Executive’s predictive judgments on matters of ‘national security’ (internal citations and quotation marks omitted).

Judge Williams also disputed Judge Wilkins’s characterization of the August 2017 presidential memorandum as having a stench of arbitrariness and animus, arguing that there was nothing unusual or suspect about the change of policy in the Trump administration. He particularly emphasized the fact that former Defense Secretary James Mattis postponed implementation of the Carter policy before President Trump ever weighed in, suggesting that the president was following the Defense Department’s lead when he tweeted in July 2017 that transgender individuals would be barred from serving.

Judge Williams then listed the steps to promulgation of the Mattis policy: (1) “The President himself called for a comprehensive study”; (2) “Secretary Mattis ordered a comprehensive study”; (3) “[t]he Department of Defense understood the panel of experts that Secretary Mattis convened to have conducted a comprehensive study”; (4) “[t]he Department’s report and recommendations were, in fact, comprehensive—and contrary to the President’s initial policy decisions”; (5) “[w]hen transmitting the proposed policy to the President, Secretary Mattis confirmed that the review was independent”; (6) “[i]n the same transmittal, Secretary Mattis asked the President to ‘revoke’ his initial policy directives”; and (7) “[t]he President acknowledged Secretary Mattis’s ‘independent judgment,’ and ‘revoke[d]’ his initial policy decisions.”

Reviewing that process, Judge Williams said, makes it clear that the Mattis policy reflects the military’s independent, professional judgment, not animus, as the plaintiffs allege.

Furthermore, even if the motive behind Trump’s July 2017 tweets could be questioned, the Supreme Court, Judge Williams said, has made clear that lower courts must “uphold the [challenged] policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds .... [F]or all the reasons discussed above, the Mattis policy can easily be understood to have arisen out of perfectly legitimate considerations” (internal citations and quotation marks omitted). There is therefore no basis for the district court to direct further discovery into the executive’s decision-making process and judgment should be granted for the government as a matter of law. In Judge Williams’s view, the plaintiffs cannot prevail, regardless of what information they might obtain in discovery, so “the wisest course is to terminate the litigation now.”

In a brief appendix, Judge Williams also asserted that “a majority of the plaintiffs unquestionably lack standing” because they are covered by the Mattis policy’s grandfather clause for transgender service members who began the process of changing their gender markers under the Carter policy, and “[a] military policy that does not apply to plaintiffs, but ‘makes them feel like second-class citizens,’ does not give rise to a judicially cognizable injury.” Additionally, he criticized the “highly unusual,” “modern” remedy of the nationwide injunction, which goes beyond addressing “the plaintiff’s particular injury” and does not comport with the “properly limited” role of the courts.

Sarah Grant is a graduate of Harvard Law School and previously spent five years on active duty in the Marine Corps. She holds an MPhil in International Relations from the University of Cambridge and a BS in International Relations from the United States Naval Academy. The views expressed here are her own and do not reflect those of the Department of Defense, the Marine Corps, or any other agency of the United States Government.

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