On July 26, to the surprise of Defense Department officials and members of the White House staff, Donald Trump transmitted a series of three tweets beginning at 8:55 a.m. announcing a new policy concerning military service by transgender individuals. “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow . . . . . . Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming . . . . . . victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.” This appeared to be a complete reversal of a policy decision made a year earlier by the Defense Department. After a period of prolonged study that included a report commissioned from the RAND Corporation (a “think-tank” that specializes in producing studies on defense-related issues by contract with the DoD) and widespread consultations within the military and with military allies that allow transgender individuals to serve, DoD rescinded an existing regulation that established a ban on service by transgendered individuals on purported medical grounds. As a result of the policy newly announced during June 2016, hundreds of transgender service members “came out” to their superior officers, and some service members who had been concealing their gender identity for years began the process of transition with the assurance that the costs would be covered under military health policies. Estimates of the number of transgender service members ranged from a few thousand to as high as 15,000, most of whom have not yet made their presence known to their commanding officers. This unknown group likely includes many officers as well as enlisted personnel.
Attempts to discern details of the new policy were at first unsuccessful because neither the usual sources in the White House nor the Pentagon had received any advance notice or details. Admiral Paul F. Zukunft, Commandant of the Coast Guard, immediately announced that the Coast Guard would not “abandon” its several openly-transgender members, and that he and his staff had reached out to reassure them. The other military service heads and the Chairman of the Joint Chiefs of Staff quickly announced that there would be no change of policy until some formal directive came from the Office of the President. A spontaneous presidential tweet was not deemed by the Pentagon to be an order to abandon an existing published policy. The White House finally issued a document titled “Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security” on August 25, signed by President Trump, directing a series of steps that appeared to fall far short of the draconian July 26 tweets.
After a paragraph summarizing what had been done the previous summer and noting that the Secretaries of Defense and Homeland Security had extended a July 1, 2017 date for allowing transgender people to join the military to January 1, 2018, the President stated his reasoning: “In my judgment, the previous Administration failed to identify a sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupting unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year’s policy change would not have those negative effects.” This was stated in blithe disregard of the fact that over the past year, transgender military service members, in reliance on the announced policy change, had come out to their commanders by the hundreds and that there was no evidence during that time of any adverse effect on military operations or unit cohesion, or of significant strain on the military’s budget attributable to this policy change. There has been no reporting that military commanders had asked to abandon the policy allowing transgender individuals to serve, and there has been no reporting that either Trump or members of his staff have actually reviewed the voluminous materials generated by the review process undertaken by the DoD prior to announcing its change of policy in June 2016, or were reacting to actual evidence indicating problems over the past year (since there have not been reports of any such problems).
After invoking the president’s powers as Commander in Chief, the Memorandum continues, “I am directing the Secretary of Defense, and the Secretary of Homeland Security with respect to the U.S. Coast Guard, to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above. The Secretary of Defense, after consulting with the Secretary of Homeland Security, may advise me at any time, in writing, that a change to this policy is warranted.”
The Memorandum then sets out specific “directives,” apparently intended to be the operative provisions of the Memorandum. The first directive is to “maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018, until such time as the Secretary of Defense, after consulting with the Secretary of Homeland Security, provides a recommendation to the contrary that I find convincing.” In other words, the existing ban on enlisting transgender individuals will continue indefinitely, but can be ended when the Secretary of Defense convinces the president to end it. The second directive is to “halt all use of DoD or DHS resources to fund sex reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.” Interestingly, this directive mentions only “sex reassignment surgical procedures” but not any of the other costs associated with gender transition, including hormone treatment, which may reflect either ignorance by the White House staffers who drafted the Memorandum or a deliberate intention to make the exclusion as narrow as possible, focusing only on the political “flashpoint” of surgery. The Memorandum states that this second directive about surgical expenses will take effect on March 23, 2018. In other words, transgender individuals currently serving will continue to be covered for sex reassignment surgical procedures at least until March 23, 2018, and continuing beyond then if cutting off coverage on that date interferes with completing surgical procedures already under way. Or at least, that’s what it appears to say.
Third, in the section titled “effective dates and implementation,” the Memorandum gives the Secretary of Defense until February 21, 2018, to submit to the president a “plan for implementing both the general policy set forth in section 1(b) of this memorandum and the specific directives set forth in section 2 of this memorandum. The implementation plan shall adhere to the determinations of the Secretary of Defense, made in consultation with the Secretary of Homeland Security, as to what steps are appropriate and consistent with military effectiveness and lethality, budgetary constraints, and applicable law. As part of the implementation plan, the Secretary of Defense, in consultation with the Secretary of Homeland Security, shall determine how to address transgender individuals currently serving in the United States military. Until the Secretary has made that determination, no action may be taken against such individuals under the policy set forth in section 1(b) of this memorandum.” The Memorandum also has a severability provision, the usual disclaimers accompanying presidential directives about not creating new rights or changing the authority of any government departments or agencies, and permission to the Secretary to publish the Memorandum in the Federal Register. (It was made immediately available on the White House website.)
On a plain reading, the “effective dates and implementation” section appears to mark a substantial retreat from the absolutist tone of the July 26 tweets. In trying to construe the tweets, there had been speculation that transgender service members would be immediately discharged or pressured to resign in order to avoid discharge. Leaks from the White House, while staff members were working on a written guidance for the president to sign, led to reports that transgender enlisted personnel would be allowed to serve out their enlistments but then be denied reenlistment while being encouraged to resign earlier, and that transgender officers could continue to serve their commissions, but would be required to resign if being considered for promotions.
Based on the leaks, GLBTQ Legal Advocates and Defenders (GLAD), the Boston-based New England public interest law firm, and the National Center for Lesbian Rights (NCLR), based in San Francisco, with cooperating attorneys from Foley Hoag LLP and Wilmer Cutler Pickering Hale & Dorr LLP, filed a lawsuit on August 9 in the U.S. District Court for the District of Columbia, representing five “Jane Doe” plaintiffs, all presently serving transgender individuals, seeking declaratory and injunctive relief. Doe v. Trump, Case 1:17-cv-01597. The case was assigned to District Judge Colleen Kollar-Kotelly, who was nominated to the court in 1997 by President Bill Clinton. The plaintiffs, with varying lengths of service, present compelling stories about the harms the proposed policy would have on them, based, of course, on what was known when the complaint was filed. Among them, of course, were interference with ongoing transitions, interference with attaining military pensions (which some were close to vesting), and loss of career and benefits, affecting not only the plaintiffs, but their family members as well. There was also the emotional stress generated by uncertainty about their future employment and welfare.
The three-count complaint asserts violations of equal protection and due process (Fifth Amendment) and invokes the doctrine of estoppel to prevent adverse moves against the plaintiffs and those similarly situated as presently serving transgender members of the military who had been encouraged to “come out” as transgender under the earlier policy. The named defendants, in addition to the president, are Secretary of Defense James Mattis, Chairman of the Joint Chiefs of Staff Joseph F. Dunford, Jr., the Departments of the Army, Air Force, and Coast Guard, Army Secretary Ryan D. McCarthy, Air Force Secretary Heather A. Wilson, Acting Homeland Security Secretary Elaine C. Duke, and, for good measure, THE UNITED STATES OF AMERICA. There was some speculation and criticism that filing the lawsuit before a formal policy was announced or implemented was premature and might result in a dismissal on grounds of standing or ripeness, but the release of the formal guidance just a few weeks after the suit was filed will undoubtedly lead to the filing of an amended complaint focusing more specifically at the changes announced in the Memorandum. The lengthy delay specified by the Memorandum for implementing changes may be invoked by the Justice Department in seeking to get this case dismissed. Perhaps the Memorandum was drafted with this strategic use in mind.
Press coverage of the July 26 tweets showed overwhelming opposition and criticism from media, many government officials, and members of both parties in Congress. Those who voiced support of the president’s announcement came from the House Republicans who had waged a losing battle to amend a pending Defense budget measure to ban use of any appropriations to pay for sex reassignment surgery for military members, and there were soon press reports that supporters of that amendment had specifically asked the president to take steps to prevent spending federal funds for this purpose. Furthermore, it was reported that threats had been made to block passage of the Defense measure – which was intended to provide some funding for the president’s project to “build a wall” along the U.S. border with Mexico (reflecting his ignorance of world history, and most specifically of the spectacular failure of the vaunted “Maginot Line” constructed after World War I to protect France from any future invasion by German military forces) – unless the president prevented military expenditures on sex reassignment procedures. To the simple-minded president, the solution was obvious. Reviving a ban on all military service by transgender individuals meant that there would be no openly transgender individuals in the military seeking to have such procedures performed and, since reversing Obama Administration policies regardless of their merits seems to be the main goal of many of Trump’s actions, simply overturning the Obama Administration policy became his simplistic solution to his political problem. There was no indication that Trump made this decision after consulting “my Generals” or military experts – at least, the White House never revealed the names of any such individuals who were consulted, and it appeared that Secretary Mattis had merely been informed of the president’s intentions the night before the tweets. One suspects that Trump’s “expert” was likely former White House Chief Strategist Steve Bannon, a former Marine.
The August 25 Memorandum did not necessarily require the immediate, or even eventual, discharge of all transgender personnel, and appeared to give Secretary Mattis discretion to come up with an implementing plan and at least six months to do it, while barring any action against transgender service members during the intervening time. Rather, it charged Defense Secretary Mattis with the task of coming up with implementation procedures, and stating that he could submit written recommendations documenting that the concerns expressed in the Memorandum were not supported by banning transgender service. In typical “kick the can down the road” Trump style (which is, admittedly, a typical style of U.S. politicians generally, only more pronounced in this president), it leaves open the possibility that the Obama Administration policies will ultimately be left in place, provided Mattis asks for this in writing, summoning persuasive evidence that nothing is gained and much is lost by preventing transgender individuals from enlisting, by being commissioned out of the service academies, or by blocking transgender service members (including commissioned officers) from continuing their service. Press accounts noted that the anticipated expense of covering sex reassignment surgery was dwarfed by the annual military expenditure on Viagra and similar drugs (who knew, as Trump might ask, that the Defense Department, the government’s most “macho” agency, was spending so much money to stiffen the limp genitals of male members?), and that the replacement costs for several thousand fully-trained and productive military members would far outweigh the costs of down-time for the relatively small number of individuals at any given time who might be unavailable for assignment while recovering from sex reassignment surgery. (There is no indication that the other steps in gender transition, including hormone therapy, are disabling in a way that would interfere with military service.)
As worded, the Memorandum leant itself to the interpretation that with the passage of time, as the immediate political problem that “inspired” Trump to emit his tweets had been surmounted, sober heads could prevail, Mattis could reassure the transgender troops that nothing was happening right away, and eventually the president would accept Mattis’s written recommendation to allow transgender individuals to serve after all. (This interpretation depends on Mattis having the fortitude and political courage to tell the president, as he had done during the transition after the election on the subject of torture as an interrogation device, that Trump’s announced position did not make sense as a matter of military policy.) Of course, the Memorandum directive means continuing discrimination against transgender individuals who seek to enlist, raising serious constitutional issues in light of the increasing recognition by federal courts that gender identity discrimination is a form of sex discrimination in equal protection doctrine, but the Memorandum, as it plays out, could avoid the loss of employment for transgender individuals now serving, although it would pose continuing emotional stress stemming from the uncertainty of future developments until Mattis convinces the president to countermand his new “policy.”
A few days after the Memorandum was released, Secretary Mattis indicated that he would convene an expert panel to conduct a study on the implementation issue regarding currently serving members, and that in the interim, no steps would be taken to dismiss any serving transgender personnel because of their gender identity. Media reports about Mattis’s announcement ranged widely in their interpretations, from the inaccurate contention that he was putting a “freeze” on Trump’s policy announcement (an apparent misinterpretation, since the Memorandum itself delayed its implementation until March 2018 with respect to serving members), or that the policy would never go into effect because Mattis would persuade the president to rescind it, to those who argued that the Memorandum only authorized Mattis to study how to implement the newly-announced policy and the ban was required to go into effect on March 23, 2018.
When the GLAD/NCLR suit was filed, other organizations, including Lambda Legal and the ACLU, announced that they would file lawsuits as well, and the release of the Memorandum on August 25 led to immediate announcements that more lawsuits would be filed, which they were on August 28. “See you in court,” wrote ACLU Executive Director Anthony Romero to the organization’s supporters.
Lambda Legal and OutServe-SLDN, Inc. filed Karnoski v. Trump in the U.S. District Court in Seattle (W.D. Wash.), assisted by cooperating attorneys from Kirkland & Ellis LLP and local counsel Derek A. Newman. The American Civil Liberties Union (ACLU) and the ACLU Foundation of Maryland filed Stone v. Trump in the U.S. District Court in Maryland, assisted by cooperating attorneys from Covington & Burling LLP. Each of these cases differ in some respects from the lawsuit filed earlier in August by NCLR and GLAD. The Lambda case, Karnoski v. Trump, includes among its plaintiffs two individuals affected by the continuing policy against allowing transgender people to enlist, and also adds two institutional plaintiffs, the Human Rights Campaign and Gender Justice League, which sue on behalf of their transgender members who are either currently serving or wish to enlist. This complaint asserts equal protection and due process claims, and adds a free speech claim under the First Amendment, arguing that service members who told their commanders about their gender identity and continued to serve openly will be subject to dismissal for being open under the ban, and that the plaintiffs who seek to enlist had also spoken about their gender identity; thus, their speech was burdened by the policy without rational justification. The ACLU plaintiffs are all currently serving. One of them is serving in the National Guard and seeks a commission in the Army, but the enlistment ban will block that step. The ACLU lawsuit limits itself to equal protection and due process claims. Unlike the NCLR/GLAD lawsuit, neither of the lawsuits filed on August 28 makes an estoppel claim on behalf of the serving members.
Between them, the three complaints include detailed accounts of the steps taken by the Defense Department in 2015 and 2016 to thoroughly study the issue of transgender service and address all the issues that Trump raised in his tweets and the Memorandum, highlighting the lie to Trump’s claim that the policy implemented in June 2016 was undertaken with insufficient study. Ironically, while Trump implicitly accused the Obama Administration as having improperly treated the issue of transgender service as entirely political, it was Trump who failed to consult generals and experts, who was cautioned against changing existing policy by legal staff in the White House, and who was apparently motivated primarily by political concerns about securing enough votes in the House for his wall with Mexico, who actually treated it as political. Depriving individuals of constitutional rights for political reasons has never been accepted by the courts as legitimate.
On August 31, NCLR/GLAD filed a motion for preliminary injunction and sought to amend their complaint to add two more plaintiffs, a Naval Academy midshipman and a college Army ROTC member, both of whose eventual continued participation and eventual commissioning as officers are directly threatened by implementation of the policy. The motion was backed up by affidavits from former Secretary of the Army Eric Fanning, former Secretary of the Navy Ray Mabus, former Secretary of the Air Force Deborah Lee James, former Acting Secretary for Personnel and Readiness Rogers Carson, and former Deputy Surgeon General for Mobilization, Readiness, and Army Reserve Affairs Margaret Chamberlain Wilmoth, all of whom attested to the careful study and well-supported policy decision taken by the Defense Department to end the ban on military service by transgender people. These affidavits would provide powerful support to the argument that the newly-announced policy, devised in the White House and not based on professional military judgment, was not entitled to the traditional deference that federal courts pay to military judgments on personnel issues, and that under the least demanding level of judicial review would not survive 5th Amendment scrutiny.
On September 5, just as we were finishing work on this issue of Law Notes, Equality California and a group of transgender plaintiffs, including currently enlisted military personnel, filed a fourth lawsuit challenging the ban in the U.S. District Court in Los Angeles, Stockman v. Trump, Case 2:17-cv-06516 (C.D. Cal.). This complaint is a more concise version of the other complaints in terms of its legal arguments, relying on the 5th Amendment to make due process, equal protection and privacy claims, and the 1st Amendment to challenge subjecting trans service members who “came out” to their commanders in reliance on the 2016 policy change with the loss of their jobs and benefits for their speech. (The First Amendment claims in this and other complaints strike this writer as a bit of a stretch; similar claims were rejected in early lawsuits challenging the Don’t Ask Don’t Tell policy, on the government’s argument that the individuals were not being excluded for saying they were gay, but rather for being gay. Whether that argument will hold up in this context is anybody’s guess until the courts start making decisions.)
As with other “bold” executive actions by Trump, this anti-transgender initiative may be stopped in its tracks by preliminary injunctions, although the Memorandum was drafted to try to minimize that likelihood by suggesting that nothing much is going to happen right away other than the continuing ban on enlistment. Mattis’s announcement that he will convene an expert study panel to make recommendations on implementation would seem to remove any such argument, however. As to the continuing enlistment ban, it was questionable that the original GLAD/NCLR plaintiffs, all currently serving members, had standing to challenge it, but the proposed additional plaintiffs would eliminate that problem, at least with respect to individuals whose commissioning would be blocked by the policy, and the other two lawsuits include a sufficient array of plaintiffs to support standing to challenge all aspects of the Memorandum. As we went to press on this issue of Law Notes, the GLAD/NCLR motion for preliminary injunction was pending before District Judge Kollar-Kotelly, and similar preliminary injunction motions were expected in the other two lawsuits.