Bowing to Reality, Trump Administration Responds to Six Court Losses by Dropping Appeals in Transgender Military Cases

President Donald Trump’s July 26 tweet announcing that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military,” as amplified by an August 25 Memorandum, encountered unanimous resistance from ten federal judges who had an opportunity to vote on it by Christmas. Nine of the ten were appointed by Presidents Bill Clinton and Barack Obama. One, U.S. District Judge Marvin Garbis in Baltimore (District of Maryland), was appointed by George H. W. Bush. As of December 31, the Trump policies had provoked four nationwide preliminary injunctions, and two federal circuit courts of appeals had refused “emergency” motions by the government to stay the injunctions in connection with a January 1 date for allowing transgender individuals to enlist. On December 28 and December 29, the district judges in Maryland and Washington State also denied motions to stay their preliminary injunctions. Bowing to reality, the Justice Department announced on December 29 that it would withdraw an appeal to the 9th Circuit of the third preliminary injunction ruling from Seattle and would not seek an “emergency” stay from the Supreme Court to avoid complying with a quadruple mandate to allow transgender individuals to begin enlisting in the U.S. military starting January 1, 2018.

The Defense Department anticipated these developments, having already distributed instructions early in December to military recruitment and enlistment personnel on how to process applications from transgender individuals. The D.C. Circuit cited this in countering the Justice Department’s argument that letting the ban expire on January 1 would create an emergency because the Defense Department wasn’t ready to process such applications.

The most recent relevant court opinions are Doe 1 v. Trump, 2017 U.S. App. LEXIS 26477, 2017 WL 6553389 (D.C. Cir. Dec. 22, 2017); Stockman v. Trump, No. EDCV 17-1799 JGB (KKx) (C.D. Cal. Dec. 22, 2017); Stone v. Trump, No. 17-2398 (4th Cir. Dec. 21, 2017); 2017 U.S. Dist. LEXIS 212556 (D. Md. Dec. 28, 2017) (denying motion to stay preliminary injunction); and Karnoski v. Trump, 2017 WL 6311305, 2017 U.S. Dist. LEXIS 167232 (W.D. Wash. Dec. 11, 2017); 2017 U.S. Dist. LEXIS 213420 (W.D. Wash. Dec. 29, 2017) (denying motion to stay preliminary injunction). All the major national LGBT groups are involved in at least one of these cases, and several of the nation’s major law firms are participating as cooperating attorneys.

Trump’s August 25 Memorandum set out three policies: a requirement that all transgender personnel be discharged, a ban on allowing transgender individuals to enter the military, and a ban on use of Defense Department or Homeland Security Department funds to pay for sex reassignment procedures for military members. The Memorandum assigned the Defense Department the task of figuring out how to implement these policies, and to report back in writing to the President in February, and meanwhile nobody would be discharged or denied medical treatment. The Memorandum specified that the existing ban on enlistments would remain in effect indefinitely, contrary to a Defense Department announcement in June 2017 that it would be lifted on January 1, 2018.

The four lawsuits were filed in different federal district courts shortly after the policy was announced, with complaints alleging a violation of Equal Protection and a variety of other claims, but all seeking preliminary injunctions to stop the Trump policies from going into effect while the cases are litigated. They all specifically asked that the Pentagon adhere to the previously announced date of January 1, 2018, to lift the ban on transgender people enlisting. The Justice Department moved to dismiss all four cases, and vigorously opposed the motions for preliminary injunctions, which if granted would block the policies announced in the President’s August 25 Memorandum from going into effect while the cases are being litigated and would requirement implementation of the January 1 date for allowing transgender people to enlist.

As of December 22, when U.S. District Judge Jesus G. Bernal, sitting in Riverside (Central District of California), issued a nationwide preliminary injunction, all four district judges had issued such injunctions, beginning with D.C. District Judge Colleen Kollar-Kotelly on October 30, Judge Garbis in Maryland on November 21, and Judge District Judge Marsha J. Pechman in Seattle (Western District of Washington) on December 11. The subsequent opinions all cited to and quoted from Judge Kollar-Kotelly’s opinion, none stating any disagreement with her equal protection analysis. On December 21, the 4th Circuit Court of Appeals refused to stay Judge Garbis’s injunction, without substantive comment, and on December 22, the D.C. Circuit refused to stay Judge Kollar-Kotelly’s injunction in an opinion endorsing her reasoning. DOJ filed an appeal of Judge Pechman’s ruling to the 9th Circuit, and a similar appeal was anticipated from Judge Bernal’s ruling, but evidently saner thinking finally prevailed at DOJ, as getting all of these injunctions stayed before January 1 was highly unlikely. Instead, DOJ announced towards the end of the month, it would drop the appeals and concentrate on litigating the cases on the merits in the district courts. Given the wording of the preliminary injunction rulings, that sounded like a quixotic quest.

All four district judges rejected the Justice Department’s argument that the cases should be dismissed because no actions had actually yet been taken to implement Trump’s announced policies, which were being “studied” by the Defense Department under an “Interim Guidance” issued by Defense Secretary James Mattis in September. All four judges credited the plaintiffs’ arguments that the announcement of the policies and the instruction to the Defense Department to devise a method of implementation had already thrown into turmoil and uncertainty the lives of presently serving transgender individuals as well as transgender people who were anticipating signing up for military service beginning January 1, including transgender students in the nation’s military academies anticipating joining the active forces upon graduation, and they had also disrupted plans for sex reassignment surgery for several of the plaintiffs.

Judge Kollar-Kotelly found that none of the individual plaintiffs in the case before her had individual standing to contest the surgery restriction, so she granted the Justice Department’s motion to dismiss that part of the complaint in the case before her, but the three other district judges all found that some of the plaintiffs in their cases were directly affected by the surgery ban, and thus denied the Justice Department’s motion to dismiss that part of their cases. Ultimately, all four cases are proceeding on an Equal Protection theory. The judges all found that the plaintiffs had standing to bring these constitutional challenges, which were ripe for consideration on the merits.

As to the preliminary injunction motions, all four judges agreed that the high standards for enjoining the implementation of government policies were easily met in these cases. They all agreed that policies treating people adversely because of their gender identity should be reviewed by the same standard as policies that discriminate because of sex: “intermediate scrutiny.” Under this standard, the government bears the burden of showing that it has a justification for the policy that is “exceedingly persuasive,” “genuine,” “not hypothesized,” “not invented post hoc in response to litigation,” and “must not rely on overbroad generalizations,” wrote Judge Bernal in his December 22 opinion, picking up quotes from prior cases.

“Defendants’ justifications do not pass muster,” Bernal wrote. “Their reliance on cost is unavailing, as precedent shows the ease of cost and administration do not survive intermediate scrutiny even if it is significant. Moreover, all the evidence in the record suggests the ban’s cost savings to the government is miniscule. Furthermore, Defendants’ unsupported allegation that allowing transgender individuals to be in the military would adversely affect unit cohesion is similarly unsupported by the proffered evidence. These justifications fall far short of exceedingly persuasive.” Bernal concluded, as had the other three district judges, that plaintiffs were likely to succeed on the merits of their Equal Protection claim, so it was unnecessary to analyze the other constitutional theories they offered.

He also rejected, as had the other district judges, DOJ’s argument that the court should follow the usual practice of according “a highly deferential level of review” to executive branch decisions about military policy. Quoting a Supreme Court ruling from 1981, which said that such deferential review is most appropriate when the “military acts with measure, and not ‘unthinkingly or reflexively,’” he observed, “[h]ere, the only serious study and evaluation concerning the effect of transgender people in the armed forces led the military leaders to resoundingly conclude there was no justification for the ban,” referring to the RAND Corporation study commissioned by the Defense Department and other internal DoD studies undertaken before then-Secretary Ash Carter announced an end to the transgender ban in June 2016. Judge Bernal agreed with Judge Kollar-Kotelly that “the reasons offered for categorically excluding transgender individuals were not supported and were in fact contradicted by the only military judgment available at the time.”

Bernal also easily concluded that blocking implementation of the policy and ending the enlistment ban on January 1 were necessary to prevent irreparable harm to the plaintiffs. This was a determination that allowing the Trump policies to go into effect would cause injuries to transgender individuals that could not be remedied by monetary damages awarded after the fact. The Justice Department argued that “separation from the military would not constitute irreparable harm because it is within the Court’s equitable powers to remedy the injury,” but Bernal countered, “[t]hese arguments fail to address the negative stigma the ban forces upon Plaintiffs,” including the “damaging public message that transgender people are not fit to serve in the military. There is nothing any court can do to remedy a government-sent message that some citizens are not worthy of the military uniform simply because of their gender. A few strokes of the legal quill may easily alter the law, but the stigma of being seen as less-than is not so easily erased.” Furthermore, federal courts have frequently held that “deprivation of constitutional rights unquestionably constitutes irreparable injury.”

As to the “balance of equities” and “public interest” factors that courts weigh in deciding whether to enjoin government action, Bernal found that these weighed in favor of granting the preliminary injunction. DOJ’s invocation of “national defense” and “unit cohesion” were not persuasive, in light of the extended studies by DOD that led to its decision to end the ban and to set in motion a change in recruitment polices, originally to implement on July 1, 2017 (which was extended by Secretary Mattis to January 1, 2018).

Judge Bernal quoted from Judge Kollar-Kotelly’s opinion: “There is absolutely no support for the claim that the ongoing service of transgender people would have any negative effect on the military at all. In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects.” Judge Bernal saw no reason to depart from the analysis by Judges Garbis and Kollar-Kotelly in their decisions to issue preliminary injunctions.

Judge Bernal issued a two-part order. The first part enjoins the defendants “from categorically excluding individuals … from military service on the basis that they are transgender.” The second part provides that “no current service member … may be separated, denied reenlistment, demoted, denied promotion, denied medically necessary treatment on a timely basis, or otherwise subjected to adverse treatment or differential terms of service on the basis that they are transgender.”

The Justice Department sought to have the preliminary injunctions stayed, but so far the district judges have not been receptive, so DOJ took the next step of filing appeals in the D.C., 4th and 9th Circuits, and, claiming an “emergency” as January 1 drew near, sought particularly to stay the part of the injunctions that would require lifting the enlistment ban as of that date.

On December 21, a 4th Circuit three-judge panel rejected the motion for stay without explanation. The next day, however, a three-judge panel of the D.C. Circuit issued an opinion explaining its refusal to grant the requested stay. Wrote the D.C. panel, “Appellants have not shown a strong likelihood that they will succeed on the merits of their challenge to the district court’s order. As the district court explained, ‘the sheer breadth of the exclusion ordered by the [Memorandum], the unusual’ and abrupt ‘circumstances surround the President’s announcement of [the exclusion], the fact that the reasons given for [it] do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself,’ taken together, ‘strongly suggest that Plaintiffs’ Fifth Amendment claim is meritorious.’”

The court noted in particular the adverse effect that staying the injunction would have on transgender individuals who have been attending the service academies and anticipating graduating and being accepted into the active service as officers. Indeed, the court suggested, federal law treats students in the service academies as virtual members of the military, so letting the discharge policy go into effect posed an immediate threat to them.

In seeking “emergency” relief, DOJ contended that the Defense Department was not ready to being enlisting transgender people. In an order that Judge Kollar-Kotelly had issued on December 11, denying an emergency stay motion, she pointed out that DOJ was relying on “sweeping and conclusory statements” without “explaining what precisely needs to be completed by January 1, 2018, for Appellants to be prepared to begin transgender accessions.”

Totally undermining this emergency motion was the Defense Department’s own action preparing to implement the requirements of the preliminary injunction! “With respect to implementation of transgender accession into the military,” wrote the D.C. panel, “Appellants did not even inform this court of a Defense Department memorandum issued December 8, 2017, that provides detailed directions and guidance governing ‘processing transgender applicants for military service,’ directions that the Secretary of Defense’s Department commanded ‘shall remain in effect until expressly revoked.’ That open-ended directive documenting concrete plans already in place to govern accession was issued before the district court ruled on the motion for a stay pending appeal.” Thus, the government was tripping over itself in the urgency of DOJ to satisfy the President’s demand that his whims be obeyed. And the court was totally unconvinced by DOJ’s argument that, in the absence of the preliminary injunction, Secretary Mattis had any discretion to alter the terms set out in Trump’s Memorandum. By now, it seems clear that the Defense Department is committed to implementing the change, and that the career Defense bureaucracy thinks little of the president’s policy directive to the contrary.

The court noted 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,” so “allowing it to take effect would be counter to the public interest.”

“Finally,” wrote the court, “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.”

In addition to denying the stay, the D.C. panel set out an expedited calendar for addressing DOJ’s appeal of the District Court’s decision to issue the injunction, directing that oral argument be scheduled for January 27, 2018. Furthermore, apparently reacting to the maze of unfamiliar acronyms strewn through the papers filed with the court, making them difficult for the judges to process efficiently, “the parties are urged to limit the use of abbreviations, including acronyms. While acronyms may be used for entities and statues with widely recognized initials, briefs should not contain acronyms that are not widely known. The announcement late in December that DOJ would drop appeals and litigate these cases on the merits in the district courts may have been prompted, in part by the futility of pursuing a merits appeal of the preliminary injunction within the D.C. Circuit’s time frame.

Perhaps the federal judges are too polite to say so, but the clear import of their opinions in this litigation is that President Trump lied in his original tweet when he said that his decision was made “after consultation with my Generals and military experts.” To date, neither the president nor anybody speaking for him has actually identified any “military experts” or “Generals” who were consulted before the president decided to take this action. The Defense Department, confronted with the allegations in the complaints about the extended studies that preceded the June 2016 policy announcement by Secretary Carter, has not cited any studies to counter them, giving the lie to the president’s statement, in his Memorandum, that the policy change announced on June 216 had been inadequately studied by the prior administration. Secretary Mattis, who was on vacation when the president issued his tweet, was informed that it was happening the night before, according to press reports, but is not said to have been consulted about whether this policy change should be made. Thus, the reference in the court opinions to the lack of “facts” backing up this policy, and the unanimous agreement that the usual judicial deference to military expertise is inappropriate in these cases.