In a blunt rebuke to President Donald Trump, U.S. District Judge Colleen Kollar-Kotelly, discerning no factual basis for Trump’s July 26 tweet decreeing a ban on military service by transgender people or the August 25 Memorandum fleshing out the decreed policy, issued a preliminary injunction on October 30, the effect of which 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 the June 30, 2016 Directive-type Memorandum as modified by Secretary of Defense James Mattis on June 30, 2017.” Doe v. Trump, 2017 U.S. Dist. LEXIS 178892, 2017 WL 4873042 (D.D.C. Oct. 30, 2017).
The practical effect of the preliminary injunction, which will stay in effect until the court issues a final ruling on the merits of the case (unless an appellate court reverses it in the meanwhile) is that the policy on transgender service announced on June 30, 2016, by former Secretary of Defense Ashton Carter during the Obama Administration, will remain in effect and the President’s tweet and subsequent Memorandum purporting to revoke these policies, which the Administration planned to put into effect in February and March, are blocked for now. By incorporating reference to Secretary Mattis’s June 30, 2017 Directive, the judge’s order requires that the Defense Department allow transgender people to enlist beginning January 1, 2018.
Trump’s August 25 Memorandum had specified that the policy it announced would go into effect by no later than March 23, 2018, regarding the requirement to discharge all transgender personnel, and that the ban on enlistments would be permanent, at least until the President was persuaded that it should be lifted.
Key to the October 30 ruling was Kollar-Kotelly’s conclusion that at this stage the plaintiffs, represented by the National Center for Lesbian Rights and GLBTQ Advocates and Defenders, have adequately established that they are likely to prevail on the merits of their claim that a ban on military service by transgender people violates their equal protection rights under the 5th Amendment, and that allowing the ban to go into effect while the case is pending would cause irreparable harm to them that could not be remedied later by monetary damages.
The judge concluded that a policy that explicitly discriminates against people because of their gender identity is subject to “heightened scrutiny” under the 5th Amendment, which means that it is presumed to be unconstitutional and the burden is placed on the government to show an “exceedingly persuasive” reason to justify it. “As a class,” she wrote, “transgender individuals have suffered, and continue to suffer, severe persecution and discrimination. Despite this discrimination, the court is aware of no argument or evidence suggesting that being transgender in any way limits one’s ability to contribute to society.”
This was staking out new ground in the absence of a clear precedent by the U.S. Court of Appeals for the District of Columbia Circuit or the Supreme Court. Alternatively, she noted, other courts of appeals in the 6th and 11th Circuits have ruled that gender identity discrimination is really sex discrimination and should be evaluated by the same “heightened scrutiny” standard that courts use to evaluate sex discrimination claims against the government. (A petition by the Kenosha, Wisconsin school district is pending at the Supreme Court presenting the question of whether gender identity discrimination is sex discrimination, in the context of Title IX of the Education Amendments of 1972 and bathroom access in public schools.)
As for the justifications advanced by the government for Trump’s ban, the judge wrote, “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.”
The judge also concluded that the public interest is served by blocking the ban, since harm to the military from allowing transgender service was non-existent while letting the ban go into effect would actually impose significant costs and readiness issues on the military, including the loss of a large investment in training of transgender people now serving and the cost of recruiting and training people to take their places.
A major part of Judge Kollar-Kotelly’s decision was devoted to refuting the Administration’s contention that she did not have jurisdiction to decide the case. She characterized their arguments as raising a “red herring,” at least in terms of the retention and accession portions of Trump’s Memorandum. The government argued that because the August 25 Memorandum delayed implementation of the policy until next year, nobody had standing to challenge it yet, as none of the individual plaintiffs in the case has suffered tangible harm. The judge accepted the plaintiffs’ argument that both intangible and tangible harm was imposed as soon as Trump declared his policy, specifically stigmatizing transgender people as unworthy to serve, tarnishing their reputations, and creating uncertainty and emotional distress as to their future employment. Furthermore, federal courts have long held that depriving a person of equal protection of the laws imposes an injury for purposes of constitutional standing to mount a legal challenge against a policy.
The issue that seems to have provoked Trump’s July 26 tweet was military payment for sex reassignment surgery. Several Republican House members, outraged by that chamber’s rejection of their proposed amendment to the Defense appropriations bill to bar any payment by the Department for such procedures, complained to the president and reportedly threatened to withhold their support for the must-pass appropriations bill if their demand was not met. The simple-minded president apparently jumped to the obvious conclusion: barring all transgender people from the service would solve the problem while satisfying the anti-transgender biases of his political base. In common with his other major policy proclamations announced via Twitter, this seemed to be impulsive, not vetted for legality or defensibility, and oblivious to the harm it would do to thousands of people.
The way in which Trump announced his decision contributed to the judge’s conclusions. The policy was announced without any factual basis, by contrast with the 2016 policy decision, which followed several years of study, a report by the RAND Corporation (a widely-respected non-partisan military policy think tank), wide-ranging surveys, and the participation of numerous military officials. The outcome of all this study was a well-documented conclusion that there was no good reason why transgender people should not be allowed to serve, explicitly rejecting the grounds raised by Trump in support of his decision. The judge noted the irony of Trump’s methodology: first announce a ban, then a month later task Defense Department leaders with setting in motion a process to study the issue, and mandate that the policy go into effect several months later, with the study limited to recommending how to implement the ban.
Attorneys for the government argued, in effect, that the policy is still in development and that at present it is not clear what the final, implemented policy will be, including whether it would provide discretion to military leaders to decide whether to discharge individual transgender personnel or to allow particular individuals to enlist (such as, for example, highly qualified people who had already transitioned and thus would not be seeking such procedures while serving). Their arguments lacked all credibility, however, in light of the absolute ban proclaimed by Trump on July 26, and the directive to implement that ban contained in the August 25 Memorandum.
Judge Kollar-Kotelly granted the government’s motion to dismiss the part of the complaint relying on the theory of “estoppel” as opposed to their constitutional claim. She found that none of the plaintiffs had alleged facts that would support a claim that they had individually relied on the June 2016 policy announcement and its implementation in a way that would support the rarely-invoked doctrine that the government is precluded from changing a policy upon which people have relied.
Despite its length (76 pages), Judge Kollar-Kotelly’s opinion left some ambiguity about the very issue that sparked Trump’s tweet–availability of sex reassignment surgery for transgender personnel while this case is pending. Trump cited the cost of providing such treatment as one of the reasons for his ban, but the judge noted that the actual costs were a trivial fraction of the Defense Department’s health care budget.
However, the judge granted the government’s motion to dismiss the part of the complaint that specifically challenged Trump’s August 25 Memorandum dealing with sex reassignment surgery, because she found that none of the individual plaintiffs in the case had standing to challenge it or to seek preliminary injunctive relief against it while the case is pending. Among other things, the August 25 Memorandum provided that such procedures could continue to be covered until the implementation date of the policy next year, and that transitions that were under way could progress to completion. And the government represented to the court that those procedures would continue to be covered at least until final implementation of the policy. The dismissal was “without prejudice,” which means that if additional plaintiffs with standing are added to the complaint, this part of the case could be revived.
On the other hand, attorneys for the plaintiffs, announcing that the ruling was a total victory for their clients, argued that the order to revert to the June 2016 policy while the case is pending necessarily included the part of that policy that allowed for coverage of sex reassignment by the Defense Department for serving personnel. This conclusion is plausible but not certain, because the conclusion of the judge’s opinion specifies that the preliminary injunction applies to “the retention and accession policies” established in June 2016 and doesn’t explicitly say anything about coverage of reassignment procedures. Of course, if DoD balks at covering the procedures, the plaintiffs can go back to the judge for clarification.
Response to the opinion by the White House and the Justice Department was dismissive, suggesting that an appeal is likely. Judge Kollar-Kotelly’s opinion is not the last word, since similar motions for preliminary injunctions are on file in several other district courts around the country where other groups of plaintiffs have filed challenges to the ban.
Judge Kollar-Kotelly’s judicial career began when President Ronald Reagan appointed her to be a District of Columbia trial judge in 1984. President Bill Clinton appointed her to the U.S. District Court in 1997. Although she became eligible to take senior status many years ago, she continues to serve as a full-time active member of the federal trial bench at age 74. Her rulings in major cases exhibit an independent, non-partisan approach to deciding politically-charged cases, with no clear predispositions reflecting the presidents who appointed her.
On the political front, Trump’s policy declaration and memorandum brought bipartisan criticism, including from the Republican Chair of the Senate Armed Services Committee, Senator John McCain of Arizona. In the House, Rep. Jackie Speier of California introduced H.R. 4041, to provide for the retention and service of transgender members in the Armed Forces, with a bipartisan list of initial co-sponsors: Charlie Dent (R-Pennsylvania), Susan Davis (D-California), Ileana Ros-Lehtinen (R-Florida), Adam Smith (D-Washington), and Kyrsten Sinema (D-Arizona). Of course, as in so many subject areas, the Republican members willing to buck the president by co-sponsoring this bill have all announced that they are not seeking re-election to the House in 2018. It is difficult to find incumbent Republican legislators who are standing for re-election next year who are willing to oppose Trump openly on any policy question, despite their personal disagreement with his positions.