Jane Doe 2 v. Patrick Shanahan

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 10, 2018 Decided March 8, 2019*
No. 18-5257
JANE DOE 2, ET AL.,
APPELLEES
v.
PATRICK M. SHANAHAN, IN HIS OFFICIAL CAPACITY AS ACTING
SECRETARY OF DEFENSE, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-01597)
Brinton Lucas, Counsel to the Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellants.
With him on the briefs were Hashim M. Mooppan, Deputy
Assistant Attorney General, Marleigh D. Dover, and Tara S.
Morrissey, Attorneys.
Jennifer Levi argued the cause for appellees. With her on
the brief were Paul R.Q. Wolfson, John T. Byrnes, Kevin M.
Lamb, Alan E. Schoenfeld, Shannon P. Minter, and
Christopher Stoll.
*
The Panel issued a judgment on January 4, 2019 (2019 WL
102309). Judges Wilkins and Williams now file separate opinions.
2
Maura Healey, Attorney General, Office of the Attorney
General for the Commonwealth of Massachusetts, Robert E.
Toone, Assistant Attorney General, Janet T. Mills, Attorney
General at the time the brief was filed, Office of the Attorney
General for the State of Maine, Brian E. Frosh, Attorney
General for the State of Maryland, Lori Swanson, Attorney
General at the time the brief was filed, Office of the Attorney
General for the State of Minnesota, Gurbir S. Grewal, Attorney
General, Office of the Attorney General for the State of New
Jersey, Hector Balderas, Attorney General, Office of the
Attorney General for the State of New Mexico, Barbara
Underwood, Attorney General at the time the brief was filed,
Office of the Attorney General for the State of New York,
Joshua H. Stein, Attorney General, Office of the Attorney
General for the State of North Carolina, Xavier Becerra,
Attorney General, Office of the Attorney General for the State
of California, George Jepsen, Attorney General at the time the
brief was filed, Office of the Attorney General for the State of
Connecticut, Matthew P. Denn, Attorney General at the time
the brief was filed, Office of the Attorney General for the State
of Delaware, Karl A. Racine, Attorney General, Office of the
Attorney General for the District of Columbia, Russell A.
Suzuki, Attorney General at the time the brief was filed, Office
of the Attorney General for the State of Hawaii, Lisa Madigan,
Attorney General at the time the brief was filed, Office of the
Attorney General for the State of Illinois, Tom Miller, Attorney
General, Office of the Attorney General for the State of Iowa,
Peter F. Kilmartin, Attorney General at the time the brief was
filed, Office of the Attorney General for the State of Rhode
Island, Thomas J. Donovan, Jr., Attorney General, Office of
the Attorney General for the State of Vermont, Mark R.
Herring, Attorney General, Office of the Attorney General for
the Commonwealth of Virginia, Ellen F. Rosenblum, Attorney
General, Office of the Attorney General for the State of
Oregon, and Josh Shapiro, Attorney General, Office of the
3
Attorney General for the Commonwealth of Pennsylvania,
were on the brief for amici curiae The States of Massachusetts,
et al. in support of appellees and affirmance of the District
Court decision.
Peter C. Renn, Diana K. Flynn, and Tara L. Borelli were
on the brief for amici curiae National Center for Transgender
Equality and Other Advocacy Organizations in support of
plaintiffs-appellees and affirmance.
Andrew J. Ehrlich, George W. Kroup, Eric A. Felleman,
and Craig A. Benson were on the brief for amici curiae
American Veterans Alliance, et al. in support of plaintiffs-
appellees and in support of affirmance.
Eamon P. Joyce, John T. Hebden, Christopher A.
Eiswerth, and Robert S. Chang were on the brief for amici
curiae Asian American Legal Defense and Education Fund, et
al. in support of plaintiffs-appellees.
Cynthia Cook Robertson and Suzanne B. Goldberg were
on the brief for amici curiae The National Organization for
Women Foundation, et al. in support of plaintiffs-appellees.
Douglas H. Hallward-Driemeier, Irina Finkel, and
Douglas E. Brayley were on the brief for amici curiae The
Organization of Historians and 47 Historians of the Military,
National Security, and Foreign Relations supporting plaintiffs-
appellees.
Elizabeth B. Wydra and Ashwin P. Phatak were on the
brief for amicus curiae Constitutional Accountability Center in
support of plaintiffs-appellees.
4
Steven G. Thompson Reed was on the brief for amici
curiae The Service Women=s Action Network and Other
Veterans Service Organizations and Veterans Advocacy
Groups in support of affirmance.
Harold Hongju Koh and Phillip Spector were on the brief
for amici curiae Retired Military Offices and Former National
Security Officials in support of plaintiffs-appellees.
Daniel S. Harawa, Sherrilyn A. Ifill, and Janai S. Nelson
were on the brief for amicus curiae NAACP Legal Defense &
Educational Fund, Inc. in support of appellees and affirmance.
Devi M. Rao was on the brief for amici curiae American
Medical Association and Seven Other HealthCare
Organizations in support of plaintiffs-appellees and
affirmance.
Stuart F. Delery was on the brief for amicus curiae The
Trevor Project in support of plaintiffs-appellees and
affirmance.
Susan Baker Manning and Stephanie Schuster were on the
brief for amici curiae Vice Admiral Donald C. Arthur, USN
(Ret.) et al. in support of plaintiffs-appellees and affirmance of
the District Court decision.
Before: GRIFFITH and WILKINS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Concurring opinion filed by Circuit Judge WILKINS.
Opinion concurring in the result filed by Senior Circuit
Judge WILLIAMS.
WILKINS, Circuit Judge, concurring:
“[T]he passage of time frequently brings about changed
circumstances – changes in the nature of the underlying
problem, changes in governing law or its interpretation by the
courts, and new policy insights – that warrant reexamination of
the original judgment.” Horne v. Flores, 557 U.S. 443, 448
(2009). As we described in the Judgment, the District Court’s
finding of no changed circumstances and its denial of the
motion to dissolve the preliminary injunction was error. I write
separately to elaborate on why I believe that was the case.
First, we must review some history and background.
I.
At issue in this case is the regulation of military service by
transgender persons. As noted in the report of the Transgender
Military Service Commission chaired by former Surgeon
General Jocelyn Elders, a prevalent theme in this area is that
“regulatory terminology that references transgender identity is
inconsistent.” J.A. 753. Thus, to avoid confusion, it is
critically important to define terms and characterize military
regulations carefully and precisely.
Based on the record, transgender persons are “individuals
who identify with a gender different from the sex they were
assigned at birth.” J.A. 606; see also J.A. 263. Thus, while a
transgender woman may have been assigned the male sex at
birth, she nonetheless identifies with the female gender.
Similarly, a transgender man was assigned the female sex at
birth but identifies with the male gender.
As explained by amici American Medical Association and
seven other healthcare organizations, “[e]very person has a
gender identity, which cannot be altered voluntarily or
necessarily ascertained immediately after birth.” AMA
2
Amicus Br. 6. A person “communicates gender identity to
others through behavior, clothing, hairstyles, voice, or body
characteristics,” id., and the extent to which transgender
individuals express their gender identity varies from person to
person. As found by the RAND Corporation in a report for
Former Secretary of Defense Ash Carter, some transgender
persons express their gender identity though “transitioning,”
which is “the act of living and working as a gender different
from that assigned at birth.” J.A. 606 (emphasis added). But
according to the information that we have in the record, only
“[a] subset of transgender individuals may choose to transition
. . .” J.A. 606. As explained in the Transgender Military
Service Commission report:
Being transgender does not mean that one has
already transitioned to a different gender, or that
such a transition will occur in the future. It
means recognizing that the gender one has
always had does not match the physical gender
that was assigned at birth. The transgender
community includes people who have already
transitioned to the other gender, those who have
not yet transitioned but who plan to do so, those
who identify with the other gender but do not
wish to transition, and others.
J.A. 752.
Some, but not all, transgender persons develop gender
dysphoria, which manifests as stress and anxiety caused by the
incongruence between the sex assigned to the person at birth
and the person’s preferred gender identity. J.A. 622-23.
Gender dysphoria is recognized by the Diagnostic and
Statistical Manual of Mental Disorders (DSM-5), and is often
treated with “psychotherapy, hormone therapy, surgery, and
3
changes to gender expression and role (i.e., how people present
themselves to the world . . .).” J.A. 623. Thus, many
transgender persons with gender dysphoria require medical
treatment, including transitioning to their preferred gender;
however, “[n]ot all [transgender persons diagnosed with gender
dysphoria] will prefer or need all or any of those options.” Id.
Prior to 2015, the Department of Defense (DoD)
effectively banned all transgender persons from either joining
or remaining in the military. J.A. 275; J.A. 734; J.A. 784.
These accession and retention restrictions were enforced
through medical standards that precluded applicants from
joining the military if they had “defects of the genitalia”
including but not limited to change of sex, and through mental
health standards that disqualified persons with any history of
certain psychosexual conditions, including “transsexualism”
and “transvestism.” J.A. 754. Thus, all transgender persons
were essentially banned from military service, even if they had
never undergone sex-reassignment surgery, even if they did not
have gender dysphoria, and even if they had not transitioned to
their preferred gender and were willing to serve pursuant to the
military standards applicable to the sex assigned to them at
birth.
Under the pre-2015 regime, the only thing that mattered to
exclude a person from military service was the person’s
transgender status: that the person did not identify with the
gender assigned to them at birth.
Things began to change in 2015. On July 28, 2015, then-
Secretary of Defense Ash Carter issued a memorandum to the
secretaries of the military departments directing that
“[e]ffective as of July 13, 2015, no Service member shall be
involuntarily separated or denied reenlistment or continuation
of active or reserve service on the basis of their gender identity,
4
without the personal approval of the Under Secretary of
Defense for Personnel and Readiness.” J.A. 709. The
memorandum further ordered a working group composed of
senior representatives from each of the Military Departments,
Joint Staff, and relevant components from the Office of the
Secretary of Defense to formulate policy options for the DoD
regarding the military service of transgender servicemembers.
The working group commissioned the RAND Corporation’s
National Defense Research Institute to conduct a study on the
impact of permitting transgender servicemembers to serve
openly.
The RAND Corporation subsequently issued the
aforementioned 91-page report (“RAND Report”) that found
no evidence that allowing transgender individuals to serve
would have any effect on “unit cohesion,” and concluded that
any related costs or impacts on readiness would be
“exceedingly small,” “marginal,” or “negligible.” J.A. 597-
708. Based on all of the information it collected, the working
group unanimously concluded that transgender people should
be allowed to serve openly in the military. The group not only
concluded that allowing transgender people to serve would not
significantly affect military readiness or costs but also found
that prohibiting transgender people from serving would
undermine military effectiveness and readiness. Specifically,
prohibiting transgender people from serving would exclude
qualified individuals on a basis that has no relevance to one’s
fitness to serve and create unexpected vacancies requiring
expensive and time-consuming recruitment and training of
replacements.
On June 30, 2016, Secretary Carter issued Directive-Type
Memorandum 16-005 (“Carter Policy”), which announced
“that service in the United States military should be open to all
who can meet the rigorous standards for military service and
5
readiness,” and set forth a policy permitting service by
qualified transgender individuals. J.A. 586. The Carter Policy
took immediate effect with respect to retention, allowing
current transgender servicemembers to serve under “the same
standards” as cisgender (non-transgender) servicemembers and
prohibiting the discharge of otherwise qualified
servicemembers “solely on the basis of their gender identity.”
J.A. 588. The Carter Policy also allowed transgender
servicemembers diagnosed with gender dysphoria to transition
to their preferred gender if they so desired. J.A. 275. Upon
joining the military, each servicemember is assigned a “gender
marker” in the Defense Enrollment Eligibility Reporting
System (DEERS), and the servicemember must follow all sex-
based military regulations pertinent to that gender marker. J.A.
1045. Thus, under the Carter Policy, transgender servicemembers
with a gender dysphoria diagnosis became eligible to change
their gender marker in DEERS, and with this transition, begin
following the sex-based military regulations for their preferred
gender rather than for their biological sex. The sex-based
standards and procedures that vary by gender include
(1) uniform, grooming, physical fitness, body fat, and drug
testing standards; (2) requirements for separate berthing,
bathroom and shower facilities; and (3) different policies
regulating military training and sports, such as boxing. J.A.
296-98; J.A. 1045.
The Carter Policy directed DoD to update its standards for
persons entering the military (a process formally referred to as
“accession”) by July 1, 2017. Secretary of Defense James
Mattis subsequently deferred the July 1, 2017 accession
deadline to January 1, 2018 so that the services could review
their accession plans and provide input on the impact to the
readiness and lethality of the armed forces. J.A. 426.
6
On July 26, 2017, President Donald J. Trump issued a
statement via Twitter announcing that “the United States
Government will not accept or allow transgender individuals to
serve in any capacity in the U.S. Military.” J.A. 124. A formal
Presidential Memorandum (“2017 Presidential
Memorandum”) followed on August 25, 2017. J.A. 406-07.
The 2017 Presidential Memorandum reversed the Carter
Policy. President Trump explained that “[s]hortly before
President Obama left office, . . . his Administration dismantled
the Departments’ established framework by permitting
transgender individuals to serve openly in the military,
authorizing the use of the Departments’ resources to fund sex-
reassignment surgical procedures, and permitting accession of
such individuals after July 1, 2017 [later extended to January
1, 2018].” J.A. 406. President Trump further declared:
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, disrupt 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.
J.A. 406. Thus, President Trump directed Secretary Mattis “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.” J.A.
406. President Trump ordered Secretary Mattis to submit a
7
plan for implementing the policy directives of the 2017
Presidential Memorandum by February 2018. J.A. 406-07.
By ordering a return to pre-Carter policies, President
Trump effectively reinstated the prior blanket ban on accession
and retention in military service by all transgender persons.
The President specified that the ban on transgender
accession would go into effect immediately and remain in place
“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.” J.A.
406. The President also ordered an immediate stop to the “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.” J.A.
406. Other than the halt to sex-reassignment funding, the
President did not make the transgender ban immediately
effective with respect to retention standards, which would have
led to the immediate discharge of transgender servicemembers.
Instead, President Trump instructed Secretary Mattis to
“determine how to address transgender individuals currently
serving in the United States military” and ordered that “no
action may be taken against such individuals” until that study
was complete. J.A. 407.
On October 30, 2017, the District Court issued a
preliminary injunction enjoining the implementation of the
2017 Presidential Memorandum, the effect of which was to
reinstate the Carter Policy. As the District Court found, and as
we agreed in denying a motion to stay the preliminary
injunction, a number of factors “strongly suggest[ed]” that
Plaintiffs were likely to succeed on their Fifth Amendment due
process claim. Doe 1 v. Trump, 2017 WL 6553389, at *1 (D.C.
8
Cir. Dec. 22, 2017). Those factors included the breadth of the
exclusion (virtually a complete ban) ordered by the
Memorandum, the unusual and abrupt initial announcement of
the ban, the failure to provide any supporting facts for the ban,
and the recent professional judgment by the military, after a
thorough study, that the prior ban should be lifted. Id. Given
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, Village of Arlington Heights
v. Metro. Hou. Dev. Corp., 429 U.S. 252, 266-68 (1977), 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.” U.S. Dept. of Agric. v. Moreno, 413 U.S.
528, 534 (1973).
II.
But that is not the end of the story. In February 2018, as
ordered by the 2017 Presidential Memorandum, Secretary
Mattis presented a memorandum to the President that proposed
a policy regarding transgender military service (“the Mattis
Plan”). J.A. 263-65. The reasoning underlying the Mattis Plan
is spelled out in a 44-page report prepared by a panel of senior
military and civilian experts that was also submitted to the
President in February 2018 (“the Panel Report”). J.A. 268-312.
The Panel Report concludes that transgender persons with
gender dysphoria or who have undergone or will require gender
transition undermine the military. According to the Panel
Report, these servicemembers are fundamentally incompatible
with the military’s mental health standards, physical health
standards, and sex-based standards and are a detriment to
military readiness and unit cohesion. The Panel Report likens
9
gender dysphoria to conditions such as “bipolar disorder,
personality disorder, obsessive-compulsive disorder, suicidal
behavior, and even body dysmorphic disorder.” J.A. 288. It
concludes that individuals with gender dysphoria are more
likely to have other mental health conditions and substance
abuse problems, and to commit suicide. J.A. 289. The Panel
Report also states that these individuals impose
“disproportionate costs” on the military, J.A. 309, and
repeatedly cites “uncertainty” in the medical field about these
individuals as a reason to urge that the military “proceed with
caution,” J.A. 274.
The Mattis Plan has three key planks. First “[t]ransgender
persons without a history or diagnosis of gender dysphoria,
who are otherwise qualified for service, may serve, like all
other Service members, in their biological sex.” J.A. 265.
“Biological sex” is not defined, but it appears to mean that the
DEERS gender marker for the servicemember is the same as
the sex assigned to the person at birth based on a physical
examination of the genital organs. J.A. 299. “Serving” in
one’s biological sex is also not defined, but it appears to mean
that the transgender servicemember must follow all sex-based
military regulations pertinent to the person’s DEERS gender
marker. J.A. 273-74. (These critical points should be fleshed
out in further proceedings.) The Mattis Plan’s panel of experts
says that this particular recommendation is consistent with the
Carter Policy, which also required transgender persons without
gender dysphoria to serve in their biological sex, J.A. 300, and
that there are transgender persons who “have served, and are
serving, with distinction under the standards for their biological
sex,” J.A. 274.
Second, transgender persons who require or have
undergone gender transition are disqualified from service, so
they may not join, and may not be retained in, the military. J.A.
10
273. (However, the Mattis Plan includes a grandfather clause,
which exempts current servicemembers who were diagnosed
with gender dysphoria and began their transition pursuant to
the Carter Policy and prior to the effective date of the Mattis
Plan. J.A. 264; J.A. 273-74; J.A. 311.)
Third, transgender persons are disqualified from accession
or retention in military service if they have “a history or
diagnosis of gender dysphoria and require, or have already
undertaken, a course of treatment to change their gender.” J.A.
264; see also J.A. 300. (As above, the grandfather clause in the
Mattis Plan exempts current servicemembers who were
diagnosed with gender dysphoria and began their transition
pursuant to the Carter Policy and prior to the effective date of
the Mattis Plan. J.A. 264; J.A. 273-74; J.A. 311.) Thus, unless
grandfathered, a transgender person with a history or current
diagnosis of gender dysphoria can remain in the military only
if the person is willing and able to serve in his or her biological
sex. Similarly, a transgender person with a current diagnosis
of gender dysphoria cannot join the military, and a transgender
person with a history of gender dysphoria can join only if the
person can “demonstrate 36 consecutive months of stability
(i.e. absence of gender dysphoria),” has not transitioned, and is
willing and able to serve in his or her biological sex. J.A. 273.
On March 23, 2018, the President issued a 2018
Presidential Memorandum, which stated that he “revoke[s]” his
2017 Presidential Memorandum, “and any other directive [he]
may have made with respect to military service by transgender
individuals.” J.A. 261. The President ordered that “[t]he
Secretary of Defense, and the Secretary of Homeland Security,
with respect to the U.S. Coast Guard, may exercise their
authority to implement any appropriate policies concerning
military service by transgender individuals.” J.A. 261. That
same day, the government moved to dissolve the October 2017
11
injunction so that the military could implement the Mattis Plan.
On August 6, 2018, the District Court found that the Mattis
Plan had not “genuinely changed” the circumstances in the
case, J.A. 94, and thus denied the motion to dissolve its
injunction, J.A. 64-98.
III.
As stated earlier, consistency and clarity in terminology
and definitions are important, and that was a key problem
below.
The District Court ruled that by definition, transgender
persons “do not identify or live in accord with their biological
sex.” J.A. 69; J.A. 91. Plaintiffs urged this definition upon the
District Court, just as they urge it upon us, by arguing that all
transgender persons undergo a gender transition, Appellee Br.
19. The problem is that there is no record support for this
definition of the term. As noted earlier, everything in the
record, from the Elders Report, the RAND Study, the Carter
Policy and the Mattis Plan consistently defines a transgender
person as a person who does not “identify” with his or her
biological sex. Indeed, Plaintiffs’ own expert witness, J.A.
1056, and the American Medical Association, amici in support
of Plaintiffs, AMA Amicus Br. 3, define transgender in terms
of identifying with, rather than identifying with and living in
accord with, one’s preferred gender.
This subtle shift in definition by Plaintiffs is significant,
because it provides the lynchpin for their argument that the
Mattis Plan was no different than the policy of the 2017
Presidential Memorandum. Plaintiffs, and the District Court,
swept aside all distinctions in the various elements of the Mattis
Plan by characterizing it as a monolith. Under this construct,
the Mattis Plan is a total ban on service by transgender persons
12
because a transgender person cannot “liv[e] in accord with their
gender identity” while serving in the military according to their
biological sex. Appellee Br. 21; see also J.A. 69; J.A. 91. In
this paradigm, the Mattis Plan is a blanket transgender ban
because it does not permit each and every transgender person
to serve in his or her preferred gender; unless grandfathered,
the Mattis Plan requires that transgender persons serve in
accord with their biological sex.
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.
In sum, the record – at least at this point – shows that the
Mattis Plan does not exclude all transgender persons serving in
the military (unless grandfathered), as Plaintiffs maintain and
as the District Court found. Rather, the record supports the
conclusion that the Mattis Plan excludes (unless grandfathered)
transgender persons who desire to express their gender identity
by transitioning – changing their gender marker in DEERS –
13
and thereby serving in accordance with all of the military
requirements for their preferred gender. To the extent that
there are transgender servicemembers who desire to serve
under the standards for their biological sex, under the Mattis
Plan, they 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.
None of this is to say that the Mattis Plan is not a hardship
for transgender servicemembers who wish to transition. Nor is
this dispositive of whether the Mattis Plan targets only
transgender persons or is instead facially neutral. But it does
mean that the Mattis Plan does not target all transgender
persons, at least on this record, and it was therefore error to
conclude that the Mattis Plan was not a substantive change
from the 2017 Presidential Memorandum.
IV.
As we observed in the Judgment, the separation of powers
principles upon which our Constitution is based requires that
courts defer to the reasoned, professional analysis of Congress
and the Executive on matters strictly within the realm of
military expertise. This is so because the Constitution vests
authority over the armed forces with Congress and the
Executive, because military policies devised by the political
branches are accountable to the electorate while those imposed
by judges are not, and because, generally speaking, judges do
not have competence in matters of military personnel and
training. See generally Rostker v. Goldberg, 453 U.S. 57, 77-
79 (1981); Goldman v. Weinberger, 475 U.S. 503, 507-10
(1986).
But that does not mean that Congress and the Executive
have a wholesale license to discriminate in matters of military
14
policy. Over forty years ago, the Supreme Court struck down
a statute that required married female servicemembers to prove
the financial dependency of their husbands in order to receive
increased housing and healthcare benefits, while married male
servicemembers automatically received the increased benefits,
even if their wives were not financially dependent upon them.
Frontiero v. Richardson, 411 U.S. 677, 678-79 (1973). The
statute, justified as promoting “administrative convenience,”
was a classification based on sex and therefore subject to
heightened scrutiny, the same as any non-military, sex-based
statute or policy. Id. at 688-89. To satisfy heightened scrutiny,
the Court demanded “concrete evidence” that the law promoted
the claimed justification of administrative convenience, and
finding none, held that the statute violated due process
protections. Id. at 689-91.
There was no deference in Frontiero to the expertise or
judgment of the Congress that enacted the law or of the military
officials who administered it. The facially discriminatory
military decree in Frontiero was simply struck down.
Plaintiffs argue that transgender persons are a suspect class
for due process and equal protection purposes, that the Mattis
Plan facially discriminates against transgender persons, and
citing Frontiero, that heightened scrutiny is appropriate.
Appellee Br. 29-33. The government responds that transgender
persons are not a suspect class, that the Mattis Plan does not
target transgender persons, and that even if it did, it should not
receive heightened scrutiny because policies strictly of a
military nature can never be subject to heightened scrutiny.
Appellant Br. 19-23; Reply Br. 9-15. The government, citing
our opinion in Goldman, argues that the only reason heightened
scrutiny was applied in Frontiero was because the statute
involved personnel benefits and was therefore not “purported
to be a congressional judgment on a uniquely military matter.”
15
Goldman v. Sec’y of Defense, 734 F.2d 1531, 1537 (D.C. Cir.
1984).
The government thus has a point, but we also observed in
Goldman that not every infringement of a constitutional right
can be judged equally, distinguishing between the “freedom to
believe” in one’s religion, which is “absolute,” and the
“freedom to act” in accordance with one’s religion, which is
“regulable for a permissible reason, provided that the
regulation is not unduly restrictive.” Id. at 1540-41. It would
follow that a military policy prohibiting a servicemember from
stating his adherence to Jewish beliefs would receive more
scrutiny than a military policy restricting the wearing of a
yarmulke in observance of that faith. Similarly, we have stated
that even in the military context, “[c]lassifications based on
race or religion, of course, would trigger strict scrutiny,”
Steffan v. Perry, 41 F.3d 677, 689 n.9 (D.C. Cir. 1994) (en
banc), so we presumably would give more scrutiny to a military
policy that permits the wearing of any religious headgear
except yarmulkes than we would give to a neutral policy that
restricts all religious headgear.
Since Frontiero, facially discriminatory military policies
have been upheld only when there was a showing that the two
classes of individuals were not truly “similarly situated” or
when the discrimination was not against members of a suspect
class. See Schlesinger v. Ballard, 419 U.S. 498, 508-09 (1975)
(distinguishing Frontiero and upholding tenure statute that
differentiated between male and female naval officers because
it applied only in those circumstances where men and women
were not similarly situated); Rostker, 453 U.S. at 77-79
(upholding sex-based draft-registration statute aimed at
developing the pool of potential combat troops, where there
was no challenge to the then-existing exclusion of women from
combat, and thus the policy was “not invidious, but rather
16
realistically reflect[ed] the fact that the sexes [were] not
similarly situated”); Steffan, 41 F.3d at 684 n.3 (no heightened
scrutiny of Naval Academy policy prohibiting attendance of
homosexuals because homosexuals were not a suspect class
under the unchallenged, then-existing military regulations
criminalizing homosexual conduct – reasoning that is
untenable after Lawrence v. Texas, 539 U.S. 558, 578-79
(2003), which struck down a state statute criminalizing
consensual homosexual sodomy). But cf. Trump v. Hawaii,
138 S. Ct. 2392, 2419 (2018) (noting that in Fiallo v. Bell, 430
U.S. 787 (1977), the Court upheld an immigration statute that
included a “‘categorical’ entry classification that discriminated
on the basis of sex and legitimacy”).
Furthermore, most constitutional challenges to military
laws and regulations have involved policies that were facially
neutral. See, e.g., Greer v. Spock, 424 U.S. 828, 839-40 (1976)
(regulations restricting partisan political speeches,
demonstrations, and literature distribution were “politically
neutral,” and there was no claim that the military had acted
“irrationally, invidiously, or arbitrarily”); Goldman, 475 U.S.
at 513 (Stevens, J., concurring) (uniform regulation was “based
on a neutral, completely objective standard – visibility”); In re
Navy Chaplaincy, 738 F.3d 425, 430 (D.C. Cir. 2013)
(personnel policies for promoting chaplains were “facially
neutral” and there was “no showing of intent to discriminate”
based upon religion). At a minimum, the observation that the
military policy was facially neutral in each of those cases
demonstrates that the presence or absence of neutrality must
have some relevance to the analysis. Cf. Hawaii, 138 S. Ct. at
2417-18 (in resolving constitutional challenge to a Presidential
Proclamation in the analogous context of national security, the
Court’s first step was to determine that the Proclamation was
facially neutral). Even when dealing with facially neutral
policies, Congress and the Executive receive deference only
17
where military policies are based upon the “considered
professional judgment” of “appropriate military officials” and
only after finding that the policies “reasonably and
evenhandedly regulate” the matter at issue, Goldman, 475 U.S.
at 509-10; see also Rostker, 453 U.S. at 68 (court will not
substitute its “own evaluation of evidence for a reasonable
evaluation by the Legislative Branch”).
The point here is that determining the correct standard of
review for military policies, and then properly applying it, is a
complex venture. In Rostker, the Court declined the
Government’s invitation to declare that rational basis scrutiny,
rather than heightened scrutiny, necessarily applies to all
military policies, even when the policy includes a facially
discriminatory classification:
We do not think that the substantive guarantee
of due process or certainty in the law will be
advanced by any further “refinement” in the
applicable tests as suggested by the
Government. Announced degrees of
“deference” to legislative judgments, just as
levels of “scrutiny” which this Court announces
that it applies to particular classifications made
by a legislative body, may all too readily
become facile abstractions used to justify a
result. In this case the courts are called upon to
decide whether Congress, acting under an
explicit constitutional grant of authority, has by
that action transgressed an explicit guarantee of
individual rights which limits the authority so
conferred. Simply labeling the legislative
decision “military” on the one hand or “gender-
based” on the other does not automatically
guide a court to the correct constitutional result.
18
Rostker, 453 U.S. at 69-70. The fact that a military policy is
involved certainly counsels greater deference to Congress and
the Executive, but Rostker, Goldman, and the other precedent
cited above teach that the standard of review cannot be easily
quantified using a specific degree of deference or level of
scrutiny. Rather, our review involves the careful assessment of
a number of factors, including whether the policy is facially
neutral, whether it targets a suspect class, whether the class is
similarly situated to others affected, whether the policy was
motivated by animus, whether it infringes upon a fundamental
right (and, if so, how), what military purposes are furthered by
the policy, whether those purposes are legitimate, and whether
Congress or the Executive used considered professional
judgment and accommodated the servicemembers’ rights in a
reasonable and evenhanded manner, given the rights at issue.
At this juncture, I express no views on these various
factors, including whether the Mattis Plan was a product of
comparable “considered professional judgment” as the policy
in Goldman, other than to concur with the Judgment that the
Plan and its accompanying Panel Report constituted changed
circumstances that warrant vacating the preliminary injunction
and assessing the Mattis Plan anew. This is especially true
since the preliminary injunction relied heavily on the curious
circumstances surrounding the President’s tweet and
subsequent Memorandum, which reversed a policy supported
by lengthy and careful study and replaced it with a policy
lacking the apparent support of any contradictory study.
Reassessment is also necessary to clarify whether requiring
service in one’s biological sex impacts all servicemembers who
identify as transgender in the same manner, because that
impacts whether the Mattis Plan should be construed as one
monolithic policy rather than analyzed separately into its
constituent elements. Once those matters are understood, the
District Court can properly review the policy or policies
19
challenged by Plaintiffs. I express no views on the merits or
the outcome of that reassessment. I write only to provide some
guidance to the parties and the District Court so that this matter
can proceed in an efficient manner. At this stage, and on this
record, I believe it is premature to opine, let alone rule, on
anything further.
My concurring colleague would go much further and not
only reach the merits of the constitutional issues but also take
the drastic step of precluding any discovery and dismissing the
lawsuit. Slip op. at 1-2, 20, 58-60 (Williams, J., concurring).
For several reasons, I disagree. To begin with, having found
adequate non-constitutional reasons to vacate the preliminary
injunction, it is inappropriate to seek out constitutional
questions to decide in order to reach the same result. The
concurrence strains to find a case on point, but all are
inapposite; none holds that we are required to reach the merits
of the claims in order to dissolve a preliminary injunction.
Further, even if we have the discretion to reach the merits, that
doesn’t mean we should, particularly when they are
constitutional claims. “A fundamental and longstanding
principle of judicial restraint requires that courts avoid reaching
constitutional questions in advance of the necessity of deciding
them.” Lyng v. Northwest Indian Cemetery Protective Ass’n,
485 U.S. 439, 445 (1988); see also Stillman v. C.I.A., 319 F.3d
546, 548 (D.C. Cir. 2003); United States v. Rostenkowski, 59
F.3d 1291, 1302-03 (D.C. Cir. 1995).
I grant that the Court reached out to decide the
constitutional issues in Munaf v. Geren, 553 U.S. 674 (2008),
but that was not only an extraordinary circumstance but also
one where “[a]djudication of the merits . . . rest[ed] on a
question of law . . .” id. at 691. Here, the constitutional claims
are not purely legal in nature, and the District Court has found
that some factual issues are in dispute. The concurrence frets
20
about “intrusions into executive decision making” and of the
“President’s mental processes,” slip op. at 60 (Williams, J.,
concurring), but that does not justify shutting off all discovery.
For instance, as explained in our Judgment and above, there is
considerable confusion in this case about how the Mattis Plan
impacts transgender servicemembers who must comply with
the service requirements for their biological sex. * Compelling
military or executive officials to explain the operation and
purpose of this requirement would not improperly intrude upon
such mental processes. “It is the decision-making process that
requires shielding from public scrutiny, not the decision itself
once it has been acted on.” 3 WEINSTEIN’S FEDERAL EVIDENCE
§ 509.23 (2019); see also In re Sealed Case, 121 F.3d 729, 737
(D.C. Cir. 1997) (“The deliberative process privilege does not
shield documents that simply state or explain a decision the
government has already made . . . .”); EDWARD J.
IMWINKELREID, THE NEW WIGMORE: A TREATISE ON
EVIDENCE § 7.7.2 (3d ed. 2019) (“Nor is there a privilege for a
post-decision explanation of the decision.”); 26A CHARLES
ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE:
EVIDENCE § 5680 (2018) (“The [deliberative process] privilege
does not apply . . . to explanations of existing regulations or of
a past decision.”). Now that the Mattis Plan has been adopted,
there is nothing unduly intrusive about asking officials to
testify about how the policy operates and what military
*
My concurring colleague questions the relevance of this fact since
Plaintiffs seek a reversion to the Carter Plan, and it, like the Mattis
Plan, required transgender servicemembers to serve in accordance
with the requirements for their biological sex, slip op. at 59
(Williams, J., concurring). Fair enough, but Plaintiffs’ complaint
also seeks to enjoin “the categorical exclusion of transgender people
from military service,” J.A. 209, and Plaintiffs clearly argue that the
requirement of serving in one’s biological sex has the effect of a
categorical exclusion. Ultimately, this is a matter best sorted out by
the District Court in the first instance.
21
purposes it serves, and we have required similar discovery in
the past where military policies were at issue. See Waldie v.
Schlesinger, 509 F.2d 508, 510 & n.1 (D.C. Cir. 1974)
(denying summary judgment where affidavits of government
witnesses were “ambiguous” and “conclusory” in explaining
military policies). Indeed, this very type of discovery occurred
in Goldman and Rostker without any apparent damage to the
republic. See, e.g., Brief for Respondents, Goldman v.
Weinberger, 1985 WL 669077, at *4-5 (“At trial, Air Force
witnesses explained why the extraordinarily detailed regulation
of the official uniform worn by its personnel is deemed
essential to the accomplishment of the Air Force’s
mission.”); Brief for Appellant, Rostker v. Goldberg, 1981
WL 390367, at *30 (“[H]igh level military personnel who
testified in this case were of the view . . . that developing
methods of warfare employed by the United States and its allies
would require more combat intensive forces than those that had
been required during past military conflicts.” (citing deposition
testimony)).
My concurring colleague points out that Rostker and
Goldman reversed the trial court rulings on the merits, slip op.
at 60 (Williams, J., concurring), but in doing so, the Court did
not criticize discovery about how military policies operated or
what interests they served. Rather, the Court noted that it was
improper for lower courts to consider plaintiff expert testimony
that contradicted the military experts about whether the policies
at issue were justified under the circumstances. Rostker, 453
U.S. at 80-81; Goldman, 475 U.S. at 509-10. The concurrence
cites no case that has adopted the astounding rule that the
government is immune from all discovery explaining the
operation and purpose of its military policies. Even in a facial
challenge, discovery may be necessary where the impact of the
regulation is unclear and disputed. Turner Broad. Sys., Inc. v.
F.C.C., 512 U.S. 622, 667-68 (1994) (reversing summary
22
judgment for the government in facial challenge because of
factual disputes about the “actual effects” of the regulation). 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.
Cf. United States v. Nixon, 418 U.S. 683, 710 n.18 (1974)
(“Because of the key role of the testimony of witnesses in the
judicial process, courts have historically been cautious about
privileges.”). The concurrence cites no reason why the current
commander-in-chief is entitled to more deference or authorized
to provide less explanation than any of his predecessors, and I
am certainly not aware of any. It is for this reason that the panel
judgment opted for regular order.
WILLIAMS, Senior Circuit Judge, concurring in the result:
The district court issued a nationwide injunction strictly
limiting the authority of the current President and secretary of
defense to alter or amend their predecessors’ military directives
and policy judgments about the composition of the armed
forces. In our January 4 judgment, we reversed the court’s
refusal to dissolve the injunction; we also held that it abused its
discretion to the extent it granted plaintiffs additional relief.
See Doe 2 v. Shanahan, No. 18-5257, 2019 WL 102309, at *1
& n.1 (D.C. Cir. Jan. 4, 2019) (“Panel Judgment”), rev’g Doe
2 v. Trump, 315 F. Supp. 3d 474 (D.D.C. 2018), cert. before
judgment denied, No. 18-677, 2019 WL 272026 (U.S. Jan. 22,
2019). I joined the panel in dissolving the injunction—and
explained that a separate opinion would follow. This is that
opinion.
I write separately because I believe the record and the law
require dismissal of plaintiffs’ claims. A correct resolution at
this stage is important because the decisions of the district court
reflect what in my view are wholly mistaken assumptions about
the nature of constitutional review of military personnel
policy—at least on the facts of this case. To be specific, the
court contemplates a highly intrusive examination of the mental
processes of the civilian and military leadership of a coordinate
branch of government. See, e.g., Doe 2 v. Mattis, 322 F. Supp.
3d 92, 101 (D.D.C. 2018) (declaring that plaintiffs “are entitled
to complete discovery” regarding the executive’s “alleged
deliberations”); Doe 2 v. Trump, 319 F. Supp. 3d 539, 543
(D.D.C. 2018) (emphasizing that plaintiffs will “be able” to
“seek discovery from” the President). These interrogations are
to be aimed, the district court has said, at uncovering infirmities
in a policy that the secretary of defense, in his “professional
judgment,” has determined is essential to putting our armed
forces “in the strongest position to protect the American
people.” Memorandum from Secretary Mattis to President
2
Trump 3 (Feb. 22, 2018) (“Mattis Memo”), J.A. 265. Under
prevailing constitutional doctrine, however, this case can (and
should) be resolved on the existing record.
I should start by clarifying what this case is actually about.
It is not about a “transgender ban.” See, e.g., Appellees’ Br. 2.
The challenged policy expressly provides that “[t]ransgender
persons . . . may serve, like all other Service members.” Mattis
Memo 3, J.A. 265 (emphasis added). It is instead about 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. Id. 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.
Once we abstract away from the politically charged
subject-matter—as we must—this is a straightforward legal
case. Our “Constitution vests [t]he complex, subtle, and
professional decisions as to the composition, training,
equipping, and control of a military force exclusively in the
legislative and executive branches.” Panel Judgment *2
(alteration in original) (quoting Kreis v. Sec’y of Air Force, 866
F.2d 1508, 1511 (D.C. Cir. 1989)) (internal quotation marks
omitted); see U.S. Const. art. I, § 8, cls. 12–16; art. II, § 2, cl.
1. So, although the policy argument in favor of accommodating
plaintiffs’ claimed entitlement to transition into their preferred
gender may be compelling, the legal argument for requiring
such accommodation is not.
The current administration’s policy—which is far more
accommodating to transgender service than that of any
administration from 1789 until 2016—easily passes
3
constitutional muster. Given their biological differences, males
and females have long been assigned to separate berthing,
bathroom, and shower facilities, and subject to different sets of
physical fitness, body fat, uniform, and grooming standards.
This is unquestionably lawful; it is required (in part) by
Congress, see, e.g., 10 U.S.C. § 7419, and has been approved
(repeatedly) by the Supreme Court, see, e.g., United States v.
Virginia, 518 U.S. 515, 550 n.19 (1996); Rostker v. Goldberg,
453 U.S. 57, 81 (1981). To put it simply, there is no
constitutional right for, say, biological males who identify as
female to live, sleep, shower, and train with biological females.
Whether allowing such flexibility in military service is a good
idea or not is of no concern to the courts; that is a question for
the people acting through their elected representatives.
I
With the general issue in mind, I discuss the relevant
terminology and the successive policies that lie at the root of
the case, together with a timeline of the litigation; I then turn to
the legal issues.
A
Transgender individuals, according to plaintiffs’ expert
witness, have a “gender identity”—an “internalized, felt sense
of who they are as male or female”—that does not align with
“their assigned sex at birth.” Decl. of George Richard Brown
in Support of Plaintiffs ¶¶ 13–14 (Aug. 30, 2017) (“Brown
2017 Decl.”), J.A. 1056; accord, e.g., Amici Curiae Am.
Medical Ass’n et al. Br. (“AMA Br.”) 3. In this way,
“[t]rangsender people differ from non-transgender individuals,
whose gender identity aligns with the sex assigned at birth.” Id.
at 4. In virtually all cases, the latter concept, “sex assigned at
birth,” lines up with an individual’s “biological sex,” as
determined by “chromosomes, gonads, hormones, and
4
genitals,” Department of Defense Report and
Recommendations on Military Service by Transgender Persons
7 n.10 (Feb. 2018) (“DoD Report”), J.A. 275 (emphasis added);
see, e.g., Agnes Gereben Schaefer et al., Assessing the
Implications of Allowing Transgender Personnel To Serve
Openly 5 (2016) (“RAND Report”), J.A. 621 (explaining that
“birth sex . . . typically correlates with primary sex
characteristics (e.g., genitalia)”). To be sure, some transgender
individuals undergo sex reassignment surgery. But the rates for
complete sex reassignment surgery “are exceedingly low—2%
of transgender men and 10% of transgender women.” DoD
Report 31, J.A. 299.
Gender dysphoria, again according to plaintiffs’ experts,
is a mental health condition from which only “a subset of
transgender people” suffer. Decl. of George Richard Brown in
Support of Opp’n to Defs.’ Mot. to Dismiss ¶ 9 (May 11, 2018),
J.A. 839; accord, e.g., Decl. of Brad R. Carson in Support of
Pls.’ Mot. for Preliminary Injunction ¶ 23 (Aug. 28, 2017), J.A.
995. It is a serious mental health condition that is recognized
by the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders (or “DSM”). Brown
2017 Decl. ¶¶ 16–18, J.A. 1057; accord, e.g., DoD Report 13,
J.A. 281; AMA Br. 7. The condition is “associated with
clinically significant distress or impairment in social,
occupational, or other important areas of functioning.” DoD
Report 13, J.A. 281 (quoting Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 453
(5th ed. 2013)); accord, e.g., Brown 2017 Decl. ¶ 17, J.A. 1057;
AMA Br. 7. “[U]ntreated,” it “can cause debilitating distress,
depression, impairment of function, self-mutilation to alter
one’s genitals or secondary sex characteristics, other self-
injurious behaviors, and suicide.” Id. at 9.
“The recommended treatment for gender dysphoria
includes assessment, counseling, and, as appropriate,” gender
5
transition. AMA Br. at 11. Gender transition includes “social
transition, hormone therapy, and surgical interventions to bring
the body into alignment with one’s gender identity.” Id.;
accord, e.g., Brown 2017 Decl. ¶ 23, J.A. 1059. Social
transition, the sole choice of many, consists simply of “living
one’s life fully in accordance with one’s gender identity.”
AMA Br. 11. “This typically includes publicly identifying
oneself as that gender through all of the ways that people signal
their gender to others such as through their name, pronoun
usage, dress, manner and appearance, and social interactions.”
Id.
Transition became relevant to military personnel
administration for the first time in 2016, under the orders of
then-Secretary of Defense Ashton Carter. The so-called Carter
policy, which we’ll discuss in detail below, defined a transition
as being “complete” when a service member had “completed
the medical care identified or approved by a military medical
provider in a documented medical treatment plan as necessary
to treat” gender dysphoria. U.S. Dep’t of Defense,
Transgender Service in the U.S. Military: An Implementation
Handbook 11 (Sept. 30, 2016) (“Carter Memo Implementation
Handbook”), J.A. 518; see also Memorandum from Secretary
Carter to Secretaries of Military Departments, attachment at 1
(June 30, 2017) (“Carter Memo”), J.A. 588 (explaining that a
“history of medical treatment associated with gender transition
is disqualifying” unless a service member “has completed all
medical treatment associated” with the transition).
B
We deal here with three successive policies on military
service by transgender persons: (1) Pre-2016; (2) the Carter
policy (so named after Secretary Carter); and (3) the Mattis
policy (so named after James Mattis, Carter’s immediate
successor as secretary of defense).
6
1. Pre-2016.
(A) Being transgender. The parties appear to agree that
transgender persons with or without gender dysphoria (or the
equivalent of this condition in earlier terminology) were barred
from military service. See, e.g., Appellants’ Br. 12; Appellees’
Br. 3. I return to this below.
(B) Gender dysphoria was clearly a bar to military service
(at least as clearly as one can say, given changes in
nomenclature). Given the “unique mental and emotional
stresses of military service,” DoD Report 10, J.A. 278, the
executive branch long presumptively disqualified from service
individuals with “[m]ost mental health conditions,” id. at 20,
J.A. 288. The military leadership has traditionally aligned
these disqualifying conditions with the conditions listed in the
DSM. Id. at 34, J.A. 302.
For decades, then, the military’s “accession” standards—
the standards governing induction into the armed forces—
disqualified individuals with “psychosexual conditions,”
including “transsexualism.” M. Joycelyn Elders et al., Medical
Aspects of Transgender Military Service 3 (2014), J.A. 784.
(“Transsexualism” first appeared in the DSM in 1980. DoD
Report 10, J.A. 278.) Likewise, the military’s “retention”
standards—the standards governing separation from the armed
forces—traditionally permitted discharge of individuals with
“sexual gender and identity disorders.” Elders et al., supra, at
3, J.A. 784.
The parties seem generally to regard the historic accession
and retention practices as effectively barring all “[t]ransgender
individuals” from “enlist[ing] or serv[ing] in the US armed
forces.” Id. Even transgender individuals who did not “take
hormones, have surgery, or undergo any other aspect of gender
transition” were, under these “psychological” standards,
7
ineligible to serve. Id. (emphasis added); see also Doe 1 v.
Trump (Doe I), 275 F. Supp. 3d 167, 178 (D.D.C. 2017)
(explaining that “transgender individuals” could not “obtain
medical waivers for entrance into the military”).
I frankly have some doubt whether this characterization of
the pre-2016 world is fully accurate. Because many
transgender persons live in their “biological sex,” without
apparent gender dysphoria, it seems improbable that the
policies in fact excluded all transgender persons. As nothing
before the court appears to turn on this, however, I will assume
the correctness of the parties’ shared assumptions.
2. Carter Policy.
As the administration of President Barack Obama wound
down, the military embarked on a reconsideration of its
longstanding policy on “transsexualism.” By that time, the
DSM no longer included that term; it had been replaced with
“gender dysphoria,” detailed above. For this and other reasons,
then-Secretary of Defense Ashton Carter adopted a new policy
to govern the “accession” and “retention” of “transgender
personnel.” Carter Memo 1, J.A. 585.
(A) Transgender individuals not suffering from gender
dysphoria or undergoing gender transition were eligible for
service—only in their biological sex.1
1
Under the Carter policy, a service member “must meet all military
standards associated with the with member’s gender marker in
DEERS [the Defense Enrollment Eligibility Reporting System] and
use military berthing, bathroom, and shower facilities in accordance
with the DEERS gender marker.” Carter Memo Implementation
Handbook 11, J.A. 518. That gender marker is only changed from a
member’s biological sex to his or her preferred gender after “gender
transition is complete.” Id. at 12, J.A. 519. Because “gender
8
(B) For transgender individuals with gender dysphoria or
who embarked on transition to their preferred gender, the story
was more complicated.
(1) A “history of gender dysphoria” was “disqualifying”
for accession purposes unless an individual had “been stable
without clinically significant distress or impairment in social,
occupational, or other important areas of functioning for 18
months.” Carter Memo, attachment at 1, J.A. 588. Individuals
diagnosed with gender dysphoria while serving could continue
to serve provided that they met deployability standards, see id.,
and were able to serve in their biological sex (unless and until
they completed a gender transition, as discussed below), see
Carter Memo Implementation Handbook 11–12, J.A. 518–19;
supra p. 7 n.1.
(2) A history of treatment for “gender transition” was
likewise “disqualifying” for accession purposes unless an
individual had “completed all medical treatment associated
with the . . . gender transition” and had “been stable in the
transition” is a “medical treatment” for gender dysphoria, see id. at
11, J.A. 518; Carter Memo, attachment at 1, J.A. 588, only
individuals who have had gender dysphoria and have transitioned as
a treatment for that condition are eligible to serve in their preferred
gender. All others must serve in their biological sex. DoD Report 8,
J.A. 276 (“The Carter policy, however, still requires transgender
Service members who have not changed their gender marker in
DEERS, including persons who identify as other than male or female,
to meet the standards associated with their biological sex.”); see, e.g.,
U.S. Navy, Transgender and Gender Transition: Commanding
Officer’s Toolkit 9, J.A. 468 (“Prior to the DEERS gender marker
change, the Sailor will be assigned to the corresponding berthing of
their birth gender.”).
9
preferred gender for 18 months.” Carter Memo, attachment at
1, J.A. 588.
Transgender persons who had completed “gender
transition” as a treatment for “gender dysphoria” could access
and serve in their “preferred gender” rather than their biological
sex. Id.; see also Appellees’ Br. 19, 41, 42 (referring to
transition as “treatment”). Because “gender transition” under
the Carter policy included (as in general medical parlance)
social transition, i.e., simply “living in the preferred gender,”
Carter Memo Implementation Handbook 31, J.A. 538, an
individual could (for example) remain biologically male in
every respect (at least from an external point of view) and,
nonetheless, demand to be treated as in all respects female,
including for “medical fitness, physical fitness, uniform and
grooming, deployability and retention standards,” as well as for
assignment to “berthing, bathroom, and shower facilities,” id.
at 43–44, J.A. 550–51.
For retention purposes, individuals who embarked on
gender transition while serving could continue to serve
provided that they met the standards associated with their
biological sex until their transition was “complete” (at which
point, they could serve in their preferred gender). See Carter
Memo Implementation Handbook 11–12, J.A. 518–19; supra p.
7 n.1.2
2
Of course, as the Carter policy acknowledges, gender transition
“while serving in the military presents unique challenges associated
with addressing the needs of the Service member in a manner
consistent with military mission and readiness needs.” Carter Memo,
attachment at 2, J.A. 589. For example, individuals “undergoing
cross-sex hormone therapy may experience changes to their body
shape and physical strength, which may have a notable effect on their
ability to maintain standards.” Carter Memo Implementation
Handbook 29, J.A. 536. Accordingly, gender transition may “have
10
3. Mattis Policy.
(A) Like the Carter policy before it, the Mattis policy
allowed transgender persons without a history or diagnosis of
gender dysphoria to serve in their biological sex. Mattis Memo
3, J.A. 265.
(B) Also like the Carter policy, the Mattis policy applied
more complex rules for those with a history or diagnosis of
gender dysphoria or involved in gender transition.
(1) The policy presumptively disqualified for accession
purposes individuals with a “history” of “gender dysphoria”
unless they were stable, without clinically significant
symptoms, for some period of time—36 months under Mattis,
id. 2, J.A. 264 (as compared with 18 months under Carter). For
retention purposes, individuals “diagnosed with gender
dysphoria after entering into service may be retained if they do
not require a change of gender and remain deployable within
applicable retention standards.” Id.
(2) The Mattis policy diverged strongly from the Carter
policy in its handling of gender transition. It reinstated the prior
military practice of requiring that “all” individuals serve in their
“biological sex”; those who had undergone “gender transition”
were thus presumptively disqualified. Mattis Memo 2–3, J.A.
264–65. In recognition that some individuals had acted in
reliance on the Carter policy, however, Secretary Mattis created
an impact on . . . deployability, assignment considerations, medical
classification, and aspects of individual readiness (e.g., physical
fitness, body composition assessment, and professional military
education attendance).” Id. at 21, J.A. 528; see also id. at 49, J.A.
556 (suggesting that some transitioning individuals request to
“reschedule[] training events” or enter “extended leave/absence until
gender transition process is complete”).
11
a reliance exception: individuals who were “diagnosed with
gender dysphoria” under the Carter policy could “continue to
serve in their preferred gender” (rather than their biological
sex). Id. at 2, J.A. 264.
The following chart summarizes the three policies for
accession and retention of transgender personnel:
LONGSTAN’G 2016 CARTER POLICY 2018 MATTIS POLICY
POLICY
Gender Dysphoria?; Gender Eligible for Eligible for Eligible for
Transition?; Desired Service
Standards? Accn Retn Accn Retn Accn Retn
No GD No Trans’n; Bio. Sex No No Yes Yes Yes Yes
If Stable If Meet If Stable If Meet
No Trans’n; Bio. Sex No No 18 Deployab’y 36 Deployab’y
12
Months Stand’ds Months Stand’ds
Trans’n in Progress; If Stable If Meet Yes, Under
No No 18 Deployab’y No Reliance
Gender Bio. Sex
Dysph. Months Stand’ds Exception
Trans’n in Progress; No No No No No No
Pref’d Gender
Trans’n Complete; If Stable If Meet Yes, Under
No No 18 Deployab’y No Reliance
Pref’d Gender
Months Stand’ds Exception
13
C
Plaintiffs launch a comprehensive broadside against the
Mattis policy and demand a judicial mandate ordering the
executive branch to “revert to” the Carter policy. See Second
Am. Compl. 20, J.A. 209. Plaintiffs claim support in the
supposedly “unusual” circumstances surrounding the
announcement of the new policy. In doing so, they resolutely
focus on a presidential “tweet” from July 2017, an event that,
they say, forever tainted the Mattis policy. But they pay little
or no attention to Secretary Mattis’s prior order of June 30,
2017, deferring the start of accessions under the Carter policy.
And while the sequence may have little real consequence under
a proper legal analysis, plaintiffs’ persistent highlighting of the
tweet suggests the need for a precise timeline:
July 28, 2015: Secretary Carter convenes a working group
to study the “policy options” for allowing service by
“transgender Service members.” He instructs the group to
“start with [a] presumption”—namely, “that transgender
persons can serve openly without adverse impact.”
Memorandum from Secretary Carter to Secretaries of Military
Departments (July 28, 2015), J.A. 709.
2016: The Carter working group enlists the RAND
National Defense Research Institute to study the impacts of
allowing “transgender service members” to serve openly.
RAND finds (at, e.g., J.A. 646–48, 655–59) that the proposed
policy change would have an adverse impact on health care
utilization costs and readiness, but concludes (at, e.g., J.A. 685,
686) that the impact would be “negligible” or “marginal”
because of the “small” number of transgender service members
relative to the size of the military as a whole. See RAND
Report, J.A. 597–708. RAND does not explain why overall
military costs are a relevant comparator, as opposed, for
example, to the benefits to be derived (by the military and the
14
individuals in question) from increased transgender service.
RAND further concludes, based on “limited publicly available
data,” that open transgender service would not have a
“significant effect” on unit cohesion. Id. at 44, J.A. 660. But
RAND does “not have direct survey evidence or other data to
directly assess the impact on the U.S. military,” id., and
identifies “reports of resistance” in the ranks to a similar policy
change in the United Kingdom, id. at 45, J.A. 661.
June 30, 2016: Following this review, Secretary Carter
adopts a new policy on “Military Service of Transgender
Service Members.” The Carter policy “[e]stablishes policy . . .
for the standards for retention, accession, separation, in-service
transition, and medical coverage for transgender personnel
serving in the Military Services.” See Carter Memo 1, J.A.
585.
September 30, 2016: The military issues a 71-page
handbook to address “some of the issues” related to
“transgender Americans serving openly in the military.” See
Carter Memo Implementation Handbook 8, 10, J.A. 515, 517.
June 30, 2017: On the day before the Carter policy’s
accession directives were scheduled to go into effect, Secretary
Mattis “defer[s] the start of accessions [under the Carter policy]
for six months.” He explains that his “intent is to ensure that
[he] personally ha[s] the benefit of the views of the military
leadership and of the senior civilian officials who are now
arriving in the Department.” The military will “use this
additional time to evaluate more carefully the impact of such
accessions on readiness and lethality.” Memorandum from
Secretary Mattis to Secretaries of Military Departments (June
30, 2017), J.A. 425.
15
July 26, 2017: The President, who appears not to have
addressed the issue until now, expresses agreement with
Secretary Mattis. He tweets:
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[.]
July 27, 2017: The Chairman of the Joint Chiefs of Staff
announces that “no modifications” to policy will be made in
response to the tweet. See Memorandum from Chairman
Dunford to Chiefs of Military Services (July 27, 2017), J.A.
408.
August 9, 2017: Without mentioning Secretary Mattis’s
June 30, 2017 deferral order or Chairman Danford’s above
announcement, plaintiffs file suit, claiming that the President’s
tweet “reverse[d] the current policy”—referring to the Carter
policy, even though Secretary Mattis had already put that on
hold. Compl. ¶ 1 (Aug. 9, 2017), ECF No. 1.3
August 25, 2017: The President issues a formal
memorandum announcing that he, like Secretary Mattis, wants
“further study” before any implementation of Secretary
Carter’s “policy change.” In the President’s “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
3
Citations to ECF Numbers are to the district court docket in Doe
2 v. Trump, No. 17-cv-01597-CKK (D.D.C. filed Aug. 9, 2017).
16
lethality, disrupt unit cohesion, or tax military resources.”
Memorandum of August 25, 2017, 82 Fed. Reg. 41,319, 41,319
(Aug. 30, 2017) (“2017 Presidential Memorandum”).
Accordingly, exercising the power entrusted to him as
“Commander in Chief of the Army and Navy,” U.S. Const. art.
II, § 2, cl. 1, the President directs the Secretary of Defense “to
return to the longstanding policy and practice on military
service by transgender individuals that was in place prior to
[former-Secretary Carter’s change]”—at least “until such time
as a sufficient basis exists upon which to conclude that
terminating that policy and practice would not have [] negative
effects,” 2017 Presidential Memorandum, 82 Fed. Reg. at
41,319. But the President provides that “no action may be
taken” against “currently serving” transgender individuals until
the Secretary “determine[s] how to address” the issue. Id. at
41,320. The President also makes clear that Secretary Mattis
could “advise [him] at any time, in writing, that a change to this
[longstanding] policy is warranted.” Id. at 41,319.
September 14, 2017: Secretary Mattis convenes a panel of
experts. He orders them to implement “a comprehensive,
holistic, and objective approach to study military service by
transgender individuals, focusing on military readiness,
lethality, and unit cohesion, with due regard for budgetary
constraints and consistent with applicable law.” Memorandum
from Secretary Mattis to Secretaries of Military Departments 2
(Sept. 14, 2017), J.A. 404.
October 30, 2017: At plaintiffs’ request, the district court
preliminarily enjoins all branches of the military from
enforcing two provisions of the 2017 Presidential
Memorandum. See Doe I, 275 F. Supp. 3d 167.
Specifically, the court “enjoins Defendants from enforcing
the following directives of the [2017] Presidential
Memorandum”: (1) “‘return to the longstanding policy and
17
practice on military service by transgender individuals that was
in place prior to [the Carter policy]’”; and (2) “‘maintain the
[longstanding, pre-Carter] policy regarding accession of
transgender individuals into military service.’” Order 1–2 (Oct.
30, 2017), ECF No. 60, J.A. 188–89 (quoting 2017 Presidential
Memorandum, 82 Fed. Reg. at 41,319).
The court characterizes the President’s directives as
discriminating on the basis of “transgender identity,” and as
therefore subject to “intermediate scrutiny.” 275 F. Supp. 3d at
209. Applying such scrutiny, the court holds that the
President’s directives likely fail because of several supposedly
“unusual” factors associated with the President’s
announcement—namely, that it was “contradicted” by the
conclusions of a previous administration, lacked supporting
“studies,” and was issued “via Twitter,” without “formality.”
Id. at 212–13 (emphasis removed).
November 21, 2017: The government files an interlocutory
appeal of the preliminary injunction. See Defs.’ Notice of
Appeal (Nov. 21, 2017), ECF No. 66.
November 27, 2017: The district court issues a
“clarification.” Although the October 2017 order enjoined
implementation of only two specific provisions of the
Presidential Memorandum, the court “clarif[ies]” that “[a]ny
action by any of the Defendants that changes [the] status quo
[i.e., the Carter policy] is preliminarily enjoined.” Order 2
(Nov. 27, 2017) (emphasis in original), ECF No. 70, J.A. 110.
The court, however, continues to view the original October
2017 injunction as the operative injunction. See, e.g., Doe 2 v.
Trump (Doe II), 315 F. Supp. 3d 474, 498 (D.D.C. 2018) (“To
avoid any possible need for clarification, the Court states
expressly: enforcing the Mattis Implementation Plan would
violate the Court’s October 30, 2017 preliminary injunction.”).
18
January 4, 2018: In anticipation of the announcement of
the Mattis policy (see February 22), the government voluntarily
dismisses its appeal. See Doe 1 v. Trump, No. 17-52-67, 2018
WL 411236 (D.C. Cir. Jan. 4, 2018).
February 2018: The Department of Defense releases a 44-
page report based on the recommendations of the panel of
experts convened by Secretary Mattis. “The Panel made
recommendations based on each Panel member’s independent
military judgment.” DoD Report 4, J.A. 272.
February 22, 2018: In “light of the Panel’s professional
military judgment” and his own “professional judgment,”
Secretary Mattis recommends a new policy to the President.
Noting that the President had “made clear” that the Secretary
could “at any time, in writing,” advise that a change in policy
was “warranted,” Secretary Mattis recommends that the
President “revoke” his 2017 Presidential Memorandum, “thus
allowing” the military to adopt the new policy. Mattis Memo
1, 3, J.A. 263, 265.
March 23, 2018: The President (again) agrees with
Secretary Mattis, revoking all prior directives so that Secretary
Mattis could “implement any appropriate policies.” See
Memorandum of March 23, 2018, 83 Fed. Reg. 13,367, 13,367
(Mar. 28, 2018) (revoking the 2017 Presidential Memorandum
“and any other directive [the President] may have made with
respect to military service by transgender individuals”).
On the same day, the government, in accord with its prior
dismissal of its appeal, seeks from the district court protection
from a possible contempt citation. Though framing its motion
as a request to the court to dissolve the injunction, the
government “maintain[s] that the Court’s preliminary
injunction, which addressed only certain provisions of the
President’s 2017 Memorandum [see account of November 27,
19
2017 injunction], does not extend to the Department’s new
policy.” “But in an abundance of caution,” the government
urges the court “to dissolve the preliminary injunction in order
to permit the military to implement the policy it believes will
best ensure our Nation’s defense.” Defs.’ Mot. to Dissolve the
Preliminary Injunction 2 (Mar. 23, 2018), ECF No. 96.
April 6, 2018: Following an inquiry by the district court as
to whether plaintiffs will be “amending the complaint” in light
of the announcement of the new Mattis policy, see Tr. 5:16–17
(Mar. 28, 2018), ECF No. 102, plaintiffs amend their
complaint, see Second Am. Compl. (Apr. 6, 2018), ECF No.
106, J.A. 190.
April 20, 2018: The government again asks the district
court, “in an abundance of caution,” to dissolve the preliminary
injunction (again asserting that the original injunction did not
apply to Secretary Mattis’s actual policy choice). Defs.’ Mot.
to Dissolve the Preliminary Injunction 2 (Apr. 20, 2018), ECF
No. 116.
August 6, 2018: The district court refuses to dissolve the
injunction, holding that the October 2017 injunction still
applies because the Mattis policy “merely implements the basic
policy directives in the President’s 2017 tweet and
memorandum.” Doe II, 315 F. Supp. 3d at 488 n.6. The court
undertakes no detailed comparison between the Mattis policy
and the military’s longstanding prior policy, or between the
Mattis policy and the Carter policy, or between the Mattis
policy and the outstanding preliminary injunction.
August 24, 2018: The district court denies the
government’s motion for summary judgment, holding that
plaintiffs are “entitled to complete discovery” regarding the
executive branch’s “alleged deliberation” [sic] over the Mattis
policy. 322 F. Supp. 3d at 101.
20
November 30, 2018: The district court denies the
government’s motion for a stay pending appeal. See Doe 2 v.
Mattis, 344 F. Supp. 3d 16 (D.D.C. 2018).
II
On January 4, 2019, we reversed, and I join my colleagues
in dissolving the injunction. But this is where I must part ways.
A
The panel assumes that we are “reviewing” not a new or
modified injunction, but a “motion to dissolve” a pre-existing
one. Panel Judgment *1. This matters, the panel says, because
our review of a motion to dissolve is particularly narrow: The
only issue is whether the government has shown a “significant
change” in circumstances such that continued enforcement of
the original injunction may no longer be appropriate. Id. “The
merits of the preliminary injunction,” the panel concludes, “are
not properly before us.” Id. But on a sound view of the case,
the merits are before us.
1. The merits are properly before us because we confront
a necessarily new or modified injunction.
First, although the government styled its request for relief
as a motion to dissolve the earlier preliminary injunction, it
made clear its view that the actions of Secretary Mattis were so
different from anything enjoined that the earlier injunction did
not apply. See, e.g., Defs.’ Mot. to Dissolve the Preliminary
Injunction 2 (Apr. 20, 2018), ECF No. 116; see also
Appellants’ Br. 2, 3, 15, 16, 43, 47 (arguing that the district
court extended the earlier, October 2017 injunction). When a
district court uses a preliminary injunction addressed to certain
conduct as a vehicle for barring completely different conduct,
it has either “necessarily modified” the prior injunction or
issued a “completely new” one. Int’l Ass’n of Machinists &
21
Aerospace Workers v. Eastern Air Lines, Inc., 849 F.2d 1481,
1486 (D.C. Cir. 1988). Either way, our review is standard and
far from narrow: The precedents require us to assess “the
district court’s legal conclusions as to each of the four”
preliminary injunction factors—including plaintiffs’ likelihood
of “success on the merits”—“de novo, and its weighing of them
for abuse of discretion.” Archdiocese of Wash. v. Wash. Metro.
Area Transit Auth., 897 F.3d 314, 321 (D.C. Cir. 2018)
(quoting League of Women Voters v. Newby, 838 F.3d 1, 6–7
(D.C. Cir. 2016)). Here, the likelihood of plaintiffs’ success on
the merits turns on the probability that their constitutional claim
is valid.
If not completely new, the order before us—the August 6,
2018 injunction—is a modified injunction. In that order, the
district court purported to “clarif[y]” that the Mattis policy
“violate[d] the Court’s [pre-existing] October 30, 2017
preliminary injunction.” Doe II, 315 F. Supp. 3d at 498. But
“we are not governed by the district court’s own
characterization of the order as [a] . . . ‘clarification,’ as
distinguished from a ‘modification.’” United States v. Philip
Morris USA Inc., 686 F.3d 839, 844 (D.C. Cir. 2012) (quoting
Birmingham Fire Fighters Ass’n 117 v. Jefferson Cnty., 280
F.3d 1289, 1292 (11th Cir. 2002)); see also Abbott v. Perez, 138
S. Ct. 2305, 2320 (2018) (refusing to “allow[] district courts to
‘shield [their] orders from appellate review’” with the flip of a
“label” (alteration in original) (quoting Sampson v. Murray,
415 U.S. 61, 87 (1974))). Rather, we must assess “the scope”
of the October 2017 injunction with our own “‘independent
judgment.’” Philip Morris, 686 F.3d at 844 (quoting Int’l Ass’n
of Machinists, 849 F.2d at 1485).
The original October 2017 injunction “enjoin[ed]
Defendants from enforcing [two] directives of the [2017]
Presidential Memorandum”: (1) “‘return to the longstanding
policy and practice on military service by transgender
22
individuals that was in place prior to [the Carter policy]’”; and
(2) “‘maintain the [longstanding, pre-Carter] policy regarding
accession of transgender individuals into military service.’”
Order 1–2 (Oct. 30, 2017), ECF No. 60, J.A. 188–89 (quoting
2017 Presidential Memorandum, 82 Fed. Reg. at 41,319). But
the Mattis policy does neither of the actions forbidden in the
language quoted above. The “longstanding policy” was a
“blanket ban on all ‘transgender individuals,’” Doe II, 315 F.
Supp. 3d at 481; whereas, the Mattis policy, as the panel
correctly concludes, “allows some transgender persons barred
under the . . . [longstanding policy] to join and serve in the
military,” Panel Judgment *2; see also id. (“[T]he District
Court erred in finding that the Mattis Plan was a blanket
transgender ban.”). Because the defendants were not “already
bound by the” October 2017 injunction not to pursue the Mattis
policy, Washington Metro. Area Trans. Comm’n v. Reliable
limousine Serv. LLC, 776 F.3d 1, 9 (D.C. Cir. 2015), the August
2018 order “change[d] the legal relationship of the parties,” id.
(citing Philip Morris, 686 F.3d at 844). The August 2018
injunction is thus fully subject to conventional review.
An alternative analysis leads to the same result. The
August 2018 order is subject to full review because at the time
of its issuance the plaintiffs’ lawsuit challenging the President’s
2017 directives—the basis of the October 2017 preliminary
injunction—was moot. The district court, to be sure, disagreed,
see Doe II, 315 F. Supp. 3d at 492–96, but, again, we review its
“interpretation of [the prior] injunction de novo,” United States
ex rel. Yelverton v. Fed. Ins. Co., 831 F.3d 585, 587 (D.C. Cir.
2016) (citing Int’l Ass’n of Machinists, 849 F.2d at 1485). And
that October 2017 injunction addressed the 2017 Presidential
Memorandum, which the President revoked, see 83 Fed. Reg.
at 13,367, well before the district court issued its August 2018
injunction. Although such a repeal and replace does not always
moot a claim, it does so where the challenged policy is
“changed substantially,” NE Fla. Chapter of Associated Gen.
23
Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662
n.3 (1993), as the Presidential Memorandum undoubtedly was,
see Panel Judgment *2 (“The government took substantial
steps to cure the procedural deficiencies the court identified in
the enjoined 2017 Presidential Memorandum.”). See also
Trump v. Int’l Refugee Assistance, 138 S. Ct. 353, 353 (2017)
(dismissing as moot a challenge to an expired presidential order
that suspended the entry of certain aliens, even though the
President had already issued a new, related order); Trump v.
Hawaii, 138 S. Ct. 377, 377 (2017) (same). Thus, the district
court “necessarily . . . issued a completely new injunction.”
Int’l Ass’n of Machinists, 849 F.2d at 1486. Again, the history
of this case puts the merits fully before us.
2. Even viewed solely as a motion to dissolve, the case
calls for review of the Mattis policy’s constitutionality.
In any event, even if we were simply reviewing a motion
to dissolve, we still must resolve the constitutionality of the
Mattis policy. A “significant change” in circumstances is only
a “threshold” showing to dissolve an injunction. Salazar ex rel.
Salazar v. District of Columbia, 896 F.3d 489, 492 (D.C. Cir.
2018) (emphasis added) (citing Rufo v. Inmates of Suffolk Cnty.
Jail, 502 U.S. 367, 383 (1992)). Once that threshold is met, as
here, we must decide whether the change in circumstances
“renders continued enforcement” of the injunction “detrimental
to the public interest.” Petties ex rel. Martin v. District of
Columbia, 662 F.3d 564, 569 (D.C. Cir. 2011) (quoting Horne
v. Flores, 557 U.S. 433, 447 (2009)). To make this
determination, we “need[] to ascertain whether ongoing
enforcement of the original [preliminary injunction] [is]
supported by an ongoing violation of federal law.” Horne, 557
U.S. at 454 (emphasis added); but cf. Slip op. 18–19 (Wilkins,
J., concurring) (declining to address whether the Mattis policy
violated federal law). And we do that by assessing whether
constitutional “compliance has been achieved” by the Mattis
24
policy—that is, we decide whether the Mattis policy is
constitutional. Id. at 452 (citing Frew ex rel. Frew v. Hawkins,
540 U.S. 431, 442 (2004)).
Proceeding with that assessment is especially appropriate
where, as here, the district court moved well beyond “changed
circumstances” and directly ruled “[o]n the merits” of the
Mattis policy. See Doe II, 315 F. Supp. 3d at 497 (addressing
all the preliminary injunction factors: “the merits,” “irreparable
injury,” “the balance of equities,” and the “public interest”); see
also id. at 492 (ruling that “even if” the plaintiffs’ claims
against the 2017 Presidential Memorandum were “moot,” the
court would still enjoin implementation of the Mattis policy).
The panel decision quite properly reflects this aspect of the
record, citing the district court’s discussion of “the merits,” id.
at 497–98, cited in Panel Judgment *1 n.1, and “revers[ing],”
“[t]o the extent that the District Court granted preliminary relief
. . . apart from its refusal to dissolve the existing injunction,”
Panel Judgment *1 n.1 (emphasis added). Accordingly, I
proceed to the question of whether the injunction “was
supported by an ongoing violation of federal law.” Horne, 557
U.S. at 454.
B
More generally, “once jurisdiction is properly invoked
under § 1292(a)(1),” as it is here, our review permits
“disposition of all matters appropriately raised by the record,
including entry of final judgment.” Hartman v. Duffey, 19 F.3d
1459, 1464 (D.C. Cir. 1994) (quoting Wagner v. Taylor, 836
F.2d 578, 585 (D.C. Cir. 1987)). “This has long been the rule:
‘By the ordinary practice in equity . . . ,’ a reviewing court has
the power on appeal from an interlocutory order ‘to examine
the merits of the case . . . and upon deciding them in favor of
the defendant to dismiss the bill.” Munaf v. Geren, 553 U.S.
674, 691 (2008) (second alteration in original) (quoting N.
25
Carolina R. Co. v. Story, 268 U.S. 288, 292 (1925)); see also,
e.g., Ark. Dairy Co-op Ass’n v. U.S. Dep’t of Agriculture, 573
F.3d 815, 833 (D.C. Cir. 2009) (“Review of a preliminary
injunction ‘is not confined to the act of granting [or denying]
the injunctio[n], but extends as well to determining whether
there is any insuperable objection, in point of jurisdiction or
merits, to the maintenance of [the] bill, and if so, to direct a
final decree dismissing it.’” (alterations in original) (quoting
Munaf, 553 U.S. at 691)).
III
I turn now to the merits.
A
In our government of separate and coordinate powers, it is
a “basic principle” that “one branch of the Government may not
intrude upon the central prerogatives of another.” Loving v.
United States, 517 U.S. 748, 757 (1996). This restraint serves
an important purpose: it preserves the government of our
people’s design. Those who drafted and established our
Constitution did not dole out federal power haphazardly; rather,
to create “a National Government that is both effective and
accountable,” they painstakingly allocated “specific powers
and responsibilities” to the branches of government best “fitted
to the task.” Id.
To the branches “periodically subject to electoral
accountability,” Gilligan v. Morgan, 413 U.S. 1, 10 (1973),
went “authorities essential to the common defense,” The
Federalist No. 23, at 153 (Alexander Hamilton) (Clinton
Rossiter ed., 1961); see U.S. Const. art I, § 8, cl. 11 (declare
war); cl. 12 (raise and support armies); cl. 13 (provide and
maintain a navy); cl. 14 (make rules for the land and naval
forces); cl. 15 (provide for calling forth the militia); cl. 16
26
(provide for organizing the militia); art. II, § 2, cl. 1
(commander in chief). For good reason. It is “difficult to
conceive of an area of governmental activity in which the
courts have less competence.” Gilligan, 413 U.S. at 10. The
political branches are far better equipped (and more
accountable to the people) for making the types of decisions
that arise in the military setting—decisions that must be made
quickly and based on limited, often secret, information.
Our Constitution thus vests the “power of oversight and
control of military force” in Congress and the President. Id.
And it does so, as Hamilton put it,
without limitation, because it is impossible to foresee or
define the extent and variety of national exigencies, and
the correspond[ing] extent and variety of the means which
may be necessary to satisfy them. The circumstances that
endanger the safety of nations are infinite, and for this
reason no constitutional shackles can wisely be imposed
on the power to which the care of it is committed.
The Federalist No. 23, at 153 (emphasis in original). “The
later-added Bill of Rights,” of course, “limited this power to
some degree,” but “did not alter” the people’s basic
“allocation” of authority, Loving, 517 U.S. at 767 (citations
omitted); Congress and the President—not the courts—retained
the primary responsibility for the “delicate task of balancing the
rights of servicemen against the needs of the military,” id.
(quoting Solorio v. United States, 483 U.S. 435, 447–48
(1987)); see also, e.g., United States v. Eliason, 41 U.S. (16
Pet.) 291, 301 (1842) (“The power of the executive to establish
rules and regulations for the government of the army, is
undoubted.”).
Judges have long respected this allocation of powers.
Gilligan, 413 U.S. at 11. Thus, “courts traditionally have been
27
reluctant to intrude upon the authority of the Executive in
military and national security affairs,” Dep’t of Navy v. Egan,
484 U.S. 518, 530 (1988), and have “hesitate[d] long” before
tampering with the “unique structure of the military
establishment,” Chappell v. Wallace, 462 U.S. 296, 300 (1983).
In the military realm, citing separation of powers principles, the
Supreme Court has rejected numerous attacks on the
President’s authority, e.g., to define factors for imposition of
the death penalty in military trials, see Loving, 517 U.S. at 768–
69; to “control access to information bearing on national
security,” see Egan, 484 U.S. at 527; and to make
commissioning of officers dependent on “whatever facts [he]
thinks” relevant, see Orloff v. Willoughby, 345 U.S. 83, 91
(1953). The issues were, in the words of Loving, within with
the “central prerogative[]” of the executive, not the courts. 517
U.S. at 757; see also Orloff, 345 U.S. at 93 (“[J]udges are not
given the task of running the Army.”).
Even addressing laws or regulations that would be subject
to heightened scrutiny if applied to civilian society (as plaintiffs
assume for the Mattis policy, see Br. 29–32), our “review of
military regulations . . . is far more deferential,” Goldman v.
Weinberger, 475 U.S. 503, 507–08 (1986), and “the tests and
limitations to be applied may differ because of the military
context,” Rostker, 453 U.S. at 67.
Although the Supreme Court has eschewed a “label[],” id.
at 69, our standard of review reflects the separation of powers
principles detailed above, see id. at 67 (recognizing “that the
Constitution itself requires such deference”). Thus—even
when reviewing a facially discriminatory, gender-based
classification, such as an exclusion of women from draft
registration (see Rostker)—it is “quite wrong” and “palpably
exceed[s]” our authority to “undertak[e] an independent
evaluation of [] evidence, rather than adopting an appropriately
deferential examination” of the political branches’ “evaluation
28
of that evidence.” Id. at 81, 82–83; accord, e.g., Trump v.
Hawaii, 138 S. Ct. 2392, 2421–22 (2018) (declining in matters
of national security to “substitute” the Court’s own “predictive
judgments,” or its own “evaluation of the underlying facts,” for
those of the President); Goldman, 475 U.S. at 509.
Under these principles, I believe the Mattis policy survives
constitutional scrutiny.
B
To begin, plaintiffs do not—and cannot—seriously
challenge the Mattis policy’s reliance on gender dysphoria for
limiting the access of those suffering from that medical
condition to military service. They, after all, sought and the
district court ordered, see Second Am. Compl. 20, J.A. 209;
Doe II, 315 F. Supp. 3d at 480, 484, a return to the Carter
policy, which uses the same condition (a “history of gender
dysphoria”) to presumptively disqualify persons from
accession into the military, subject to some exceptions. Carter
Memo, attachment at 1, J.A. 588; cf. Mattis Memo 2, J.A. 264.
In any event, to the extent plaintiffs contend that the Mattis
policy’s focus on gender dysphoria springs from hostility to
transgender persons, this aspect of the policy is far from
suspect. Gender dysphoria affects “[o]nly a subset of” (or
“some”) “transgender people,” as even plaintiffs’ experts
repeatedly admit. Decl. of George Richard Brown in Support
of Opp’n to Defs.’ Mot. to Dismiss ¶ 9 (May 11, 2018), J.A.
839 (emphasis added); Decl. of Brad R. Carson in Support of
Pls.’ Mot. for Preliminary Injunction ¶ 23 (Aug. 28, 2017), J.A.
995 (emphasis added); accord, e.g., Carter Memo
Implementation Handbook 13, J.A. 520 (“some transgender
individuals”); DoD Report 19, J.A. 287 (“subset of transgender
persons”); id. at 20, J.A. 288 (“[n]ot all transgender people”
(alteration in original) (quoting American Psychiatric
29
Association)); RAND Report 7, J.A. 623 (“[s]ome transgender
individuals (again, the proportion is largely unknown)”); id. at
x, J.A. 606 (“transgender status alone does not constitute a
medical condition”; “only transgender individuals who
experience significant related distress are considered to have”
gender dysphoria); id. at 6, J.A. 622 (similar); AMA Br. 7
(similar).
Gender dysphoria is also a serious mental health condition
recognized by the American Psychiatric Association. It is
“associated with clinically significant distress or impairment in
social, occupational, or other important areas of functioning.”
DoD Report 13, J.A. 281 (quoting Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 453
(5th ed. 2013)); accord, e.g., Geoffrey M. Reed et al., Disorders
Related to Sexuality and Gender Identity in the ICD-11, 15
World Psychiatry 205, 212 (2016), J.A. 934 (“distress and
dysfunction [are] integral aspects of the condition”); RAND
Report at 6, J.A. 622 (“significant related distress”); Report of
the Transgender Military Service Commission 10 (Mar. 2014),
J.A. 757 (“clinically significant distress”); AMA Br. 2 (same);
see also Carter Memo, attachment at 1, J.A. 588; Carter Memo
Implementation Handbook 12, J.A. 519. Untreated, it “can
cause debilitating distress, depression, impairment of function,
self-mutilation to alter one’s genital or secondary sex
characteristics, other self-injurious behaviors, and suicide.”
AMA Br. 9.
The limits on accession and retention of those with gender
dysphoria, imposed by the military (under both Secretaries
Carter and Mattis), are thus akin to the many demanding
selection practices that render the “vast majority” of military-
age Americans—a full 71%— presumptively ineligible. DoD
Report 6, J.A. 274; see DoD Instruction 6130.03: Medical
Standards for Appointment, Enlistment, or Induction Into the
Military Services (Mar. 30, 2018), J.A. 212 (providing 49 pages
30
of medical guidelines). This includes disqualification for
“[a]ny” DSM-recognized condition that (like gender dysphoria)
is associated with “residual symptoms, or medication side
effects, which impair social or occupational performance.”
DoD Report 34, J.A. 302; see, e.g., DoD Instruction 6130.03,
supra, at 44–46, J.A. 255–57 (disqualifying those with a
“[h]istory of learning disorders after the 14th birthday,” a
“[h]istory of obsessive-compulsive disorder,” or a “[r]epeated
inability to maintain reasonable adjustment in school”). In
presumptively disqualifying individuals with gender dysphoria,
the Mattis policy, like the Carter policy before it, serves the
same legitimate interests as other disqualifications: ensuring
that the armed forces consist “of qualified, effective, and able-
bodied persons.” 10 U.S.C. § 505(a).
C
Plaintiffs, therefore, hitch their wagon to a different star:
the accommodations (or lack thereof) for “gender transition.”
Gender transition, in their view, is “the defining
characteristic of being transgender.” Appellees’ Br. 20. As
plaintiffs see it, “transgender people,” “[b]y definition,” do not
“live in accord with their biological sex.” Id. at 19 (emphasis
added) (quoting Doe II, 315 F. Supp. 3d at 482). Rather,
“transgender people undergo a gender transition in order to live
consistently with their gender identity.” Id. As we’ll soon see,
the record thoroughly belies this claim.
Working from this premise, plaintiffs contend, and district
court agreed, that the Mattis policy “is a ban on transgender
service.” Id. (quoting Doe II, 315 F. Supp. 3d at 495 (quoting,
in turn, Pls.’ Opp’n to Mot. to Dismiss 10 (May 11, 2018), ECF
No. 130)). That is so, they say, because the Mattis policy,
unlike the Carter policy, does not accommodate gender
transition. Whereas the Carter policy allows individuals to
31
undergo a gender transition (ranging, as we have seen, from
purely “social” changes to complete transformational surgery)
and to then serve in their preferred gender (rather than their
biological sex), Carter Memo, attachment at 1–2, J.A. 588–89;
Carter Memo Implementation Handbook 43, J.A. 550, the
Mattis policy sticks to longstanding military practice: “all”
individuals must serve in their “biological sex.” Thus,
individuals who have undergone gender transition (to live
outside their biological sex) are ineligible, Mattis Memo 2–3,
J.A. 264–65 (unless they qualify for a waiver or the reliance
exception).
Plaintiffs’ argument that this policy difference is of
constitutional magnitude is fundamentally flawed—factually
and legally.
1. The facts relating to transition for transgender persons
and to the polices.
At oral argument, plaintiffs doubled down on their claim
that a failure to accommodate gender transition (and life outside
one’s biological sex) is, in effect, a ban on transgender service.
Their counsel’s first substantive words were as follows:
[The Mattis policy] bans transgender people from the
military, it bans only transgender people, and all
transgender people. [The Mattis policy] requires anyone
who serves to do so in their biological sex, [and] not living
in a person’s biological sex is the defining characteristic of
what it means to be transgender.
Oral Arg. Tr. 19:10–16.
That is wrong. By requiring most individuals to serve in
their biological sex, the Mattis policy does not “translate[] into
a ban on transgender persons.” Appellees’ Br. 20 (quoting Doe
II, 315 F. Supp. 3d at 494). This is so for at least three reasons.
32
First, the factual reality: As the panel found, there is
“nothing in the record” to support plaintiffs’ assertion that the
“defining” characteristic of being “transgender” is not living in
one’s biological sex. Panel Judgment *2. To the contrary,
“everything in the record, from the Elders Report, the RAND
Study, the Carter Memo and the Mattis Memo consistently
define a transgender person as a person who does not ‘identify’
with [his or her] biological sex.” Slip op. 11 (Wilkins, J.,
concurring) (emphasis added); see, e.g., DoD Report 7 n.10,
J.A. 275; RAND Report at x, J.A. 606; Report of the
Transgender Military Service Commission 5 (Mar. 2014), J.A.
752; Carter Memo Implementation Handbook 13, J.A. 520.
Even plaintiffs’ own expert, along with the American Medical
Association (in support of plaintiffs), define “transgender” in
terms of how one “identi[fies],” not how one lives. See Brown
2017 Decl. ¶ 13, J.A. 1056 (emphasis added); AMA Br. 3
(same).
There is, moreover, no doubt that many transgender
individuals can, do, and wish to serve in their biological sex.
Contrary to plaintiffs’ assertion, the transgender community is
not a monolith in which every person wants to take steps
necessary to live in accord with his or her preferred gender
(rather than his or her biological sex). Quite the opposite. The
implementation handbook for the Carter policy, for example,
explains that only “some” transgender individuals “feel
compelled” to “transition to the preferred gender.” Carter
Memo Implementation Handbook 13, J.A. 52. The Elders
Report adds that the “transgender community includes people”
who do not even “wish to transition.” Report of the
Transgender Military Service Commission 5, J.A. 752. And the
RAND Report specifies that only 55% of “transgender
individuals” reported “living” in their preferred gender; of the
remainder, only half—27% of the total—even “wished to
transition at some point in the future.” RAND Report 20 & n.2,
J.A. 636 & n.2. This leaves but one conclusion, as the military
33
has already found: transgender individuals can serve and are
“serving[] with distinction . . . [in] their biological sex.” Panel
Judgment *2 (quoting DoD Report 6, J.A. 274).
Second, the Mattis policy’s exceptions to the requirement
of service in one’s biological sex: Again, as the panel found,
the policy “contains a reliance exception,” Panel Judgment *2,
that expressly permits certain transgender individuals “to serve
in their preferred gender,” rather than their biological sex,
Mattis Memo 2, J.A. 264. This exception covers around 1000
individuals, see DoD Report 22, J.A. 290, so that even on the
false premise that transgender must be equated with transition,
the policy would not be a “ban” on “all transgender people.” It
was “clear error” for the district court to hold otherwise. Panel
Judgment *2. Moreover, the military reserves the authority—
as it does for virtually all standards, DoD Report 10, J.A. 278—
to issue waivers for persons who would otherwise be ineligible,
id. at 5, J.A. 273.
Third, the internal inconsistency in plaintiffs’ position:
Plaintiffs demand a return to the Carter policy. See Second
Am. Compl. 20, J.A. 209; Doe I, 275 F. Supp. 3d at 177. But
even that policy, plaintiffs admit, requires transgender persons
to serve in their biological sex until their gender transition is
“complete.” Appellees’ Br. 45; see Carter Memo
Implementation Handbook 11, J.A. 518. So, if “a requirement
to serve in one’s biological sex is a transgender ban,”
Appellees’ Br. 15, plaintiffs’ logic seems to doom the very
remedy they now seek.
To put it simply: The Mattis policy—by declining to make
the same accommodations for gender transition as the Carter
policy—does not translate into a “transgender ban.” See Panel
Judgment *2 (holding that the district court “clear[ly] err[ed]”
in “finding that the Mattis Plan was the equivalent of a blanket
ban on transgender service”). And no amount of discovery will
34
change “this fact.” But cf. Slip op. 20 n.* (Wilkins, J.,
concurring).
2. The executive branch relied on an abundance of
legitimate military concerns.
In reasoning about the policy issues it confronted, the
executive branch relied on an abundance—some might say a
superabundance—of concerns. Given the “biological
differences” between males and females, military “policy and
practice has long maintained a clear line between” the
biological sexes. DoD Report, 41, J.A. 309. The military, for
example, maintains separate berthing, bathroom, and shower
facilities, along with different sets of physical fitness, body fat,
uniform, and grooming standards, for biological males and
biological females, id.—as required (in part) by Congress, see
10 U.S.C. §§ 7419, 7420, 8431, 8432, 9419. The DoD Report
drafted at Secretary Mattis’s request found that these “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. DoD Report 40, J.A. 308.
The Supreme Court has expressly acknowledged the
(rather widely shared) understanding of a key premise of the
military judgment: that, in the military setting, “[p]hysical
differences between men and women . . . are enduring: ‘[T]he
two sexes are not fungible[.]’” Virginia, 518 U.S. at 533
(quoting Ballard v. United States, 329 U.S. 187, 193 (1946)).
For that reason, “[s]ex classifications may be used[.]” Id. It is,
the Court has said, “undoubtedly . . . necessary to afford
members of each sex privacy from the other sex in living
arrangements” and to “adjust aspects of the physical training
programs” in light of the biological differences between males
and females. Id. at 550 n.19; see also Rostker, 453 U.S. at 81
 35
(recognizing the need for “different treatment” of males and
females “with regard to dependency, hardship, and physical
standards”).
Unsurprisingly, then, plaintiffs “do not challenge the
military’s ability to maintain any of its sex-based standards,”
Appellees’ Br. 44; instead they try to work around it with a
linguistic device. They contend that “the military can maintain
sex-based standards” by applying to each service member the
standard (male or female) that happens to match his or her
“gender marker in [the military’s] personnel database.” Id. at
45 (citing Carter Memo Implementation Handbook 11, J.A.
518). But for transgender persons who have exercised the
asserted right to transition (whether socially, hormonally or
surgically), that “marker” would only randomly relate to the
physical differences between biological males and biological
females (as differentiated by “chromosomes, gonads,
hormones, and genitals,” DoD Report 7 n.10, J.A. 275). Those
physical differences, however, are what the military’s sex-
based standards are actually based upon. And they are what the
Supreme Court’s approval of those standards, quoted in the
paragraph immediately above, actually rested on.
Plaintiffs’ plan would demolish the military’s sex-based
standards. Under their view, individuals could switch genders
(and adjust their gender marker) by simply “living in the
preferred gender.” Carter Memo Implementation Handbook
31, J.A. 538. In other words, a person need not undergo any
“sex reassignment surgery,” id. at 50, J.A. 557, or even “cross-
sex hormone therapy,” id. at 37, J.A. 544, in order to be
recognized as, and thus subject to the standards associated with,
his or her “preferred gender,” id. at 43, J.A. 550. Instead, any
person who remained (for example) biologically male in every
respect could demand to be treated, in all respects, as female,
including for “medical fitness, physical fitness, uniform and
grooming, deployability and retention standards,” as well as for
36
assignment to “berthing, bathroom, and shower facilities.” Id.
at 43–44, J.A. 550–51.
Plaintiffs’ “approach[]” may be wise (or equitable).
Appellees’ Br. 24. But it in no way responds to the concerns
over unit cohesion, unit readiness, and related burdens relied on
by the executive:
Unit cohesion. Consider first service members’
“reasonable expectations of privacy.” DoD Report 37, J.A.
305. The military explained that “[g]iven the unique nature of
military service,” service members “of the same biological sex
are often required to live in extremely close proximity to one
another when sleeping, undressing, showering, and using the
bathroom.” Id. In these circumstances, permitting an
individual with (for example) “male genitalia” to live, sleep,
and shower with biological females would surely, as the
military concluded, create some tension within the ranks—as
even the Carter Memo Implementation Handbook admits, see
pp. 63–64, J.A. 570–71 (explaining that biological females may
be “uncomfortable”); see also id. at 29, J.A. 536 (discussing
“privacy” concerns about “showers, bathrooms, or other shared
spaces”). And while reasonable people might disagree, cf. id.
at 65, J.A. 572 (ruling that biological females’ “lack of
comfort” must give way to more egalitarian concerns), the
executive branch “was certainly entitled, in the exercise of its
constitutional powers . . . , to focus on the question of military
need rather than ‘equity,’” Rostker, 453 U.S. at 80; cf. Virginia,
518 U.S. at 550 n.19 (recognizing that it is “necessary to afford
members of each sex privacy from the other sex in living
arrangements”).
The military’s privacy concerns are grounded in—and
partially mandated by—statute. The military is statutorily
required to physically separate “males” and “females” in
various contexts. See 10 U.S.C. §§ 7419, 7420, 8431, 8432,
37
94194; see also id. § 9420 (“same sex”).5 Plaintiffs have not
challenged—or even mentioned—those provisions. Thus we
must examine plaintiffs’ constitutional objections with these
unchallenged “restrictions firmly in mind.” Rostker, 453 U.S.
at 77; see also Schlesinger v. Ballard, 419 U.S. 498, 508 (1975).
The very “existence” of the “restrictions clearly indicates” a
legitimate basis for the policy’s bright-line separation of
biological males and biological females, Rostker, 453 U.S. at
77—i.e., compliance with a congressional directive, see DoD
Report 29 & n.108, 37, J.A. 297, 305. We must interpret
statutory words “consistent with their ‘ordinary meaning . . . at
the time Congress enacted the statute.’” Wisconsin Central Ltd.
v. United States, 138 S. Ct. 2067, 2070 (2018) (alteration in
original) (quoting Perrin v. United States, 444 U.S. 37, 42
(1979)). And at the time Congress enacted the privacy statutes
at issue here—in 1998—there can be little doubt what “male”
and “female” meant in ordinary parlance. See Pub. L. No. 105-
261, §§ 521, 522, 112 Stat. 1920, 2009–13 (1998). Those
words plainly referred to—and thus required separation of
individuals on the basis of—biological sex, not preferred
gender.6 See, e.g., Webster’s Third New International
4
Consider, for example, § 7419: “The Secretary of the Army shall
provide for housing male recruits and female recruits separately and
securely from each other during basic training.” 10 U.S.C.
§ 7419(a)(1) (emphasis added).
5
Sections 7419, 7420, 8431, 8432, 9419, and 9420 were previously
sections 4319, 4320, 6931, 6932, 9319, and 9320, respectively. See
Pub. L. No. 115-232, §§ 806(a)(3), 807(c)(1), 808(c)(1), 132 Stat.
1636, 1832, 1836, 1839 (2018) (renumbering).
6
The same is true for 10 U.S.C. § 9420, which, in certain
circumstances, prohibits training personnel from accessing the living
quarters of recruits unless they are of the “same sex.” “As a matter
of ordinary usage, the term ‘sex,’” like the terms male or female,
“does not mean . . . ‘transgender status.’” Wittmer v. Phillips 66 Co.,
38
Dictionary 1366 (unabr. ed. 1993) (defining “male” in terms of
“being the sex” that “perform[s] the fertilization function”);
The American Heritage Dictionary 759 (2d coll. ed. 1985) (“the
sex that has organs to produce spermatozoa”); The
Randomhouse College Dictionary 809 (rev. ed. 1980) (“the sex
that begets young by fertilizing the female”); see also Black’s
Law Dictionary 1379 (7th ed. 1999) (defining “sex” in terms of
the “structure[s] and function[s] that distinguish a male from a
female organism”).
Safety. The military explained that “combat remains a
physical endeavor.” DoD Report 37, J.A. 305. So, naturally,
“vigorous competition, especially physical competition,”
remains “central to the military life and is indispensable to the
training and preparation of warriors.” Id. at 36, J.A. 304. But
in such “physically violent training and competition,” the
military concluded, “pitting biological females against
biological males who identify as female, and vice versa”—as
plaintiffs demand, see, e.g., Appellees’ Br. 45 (demanding
treatment in preferred gender “for all purposes”)—would create
a “serious safety risk.” DoD Report 36, J.A. 304. That is a risk
that the military is not constitutionally required to accept (or
force upon its members). See Virginia, 518 U.S. at 550 n.19
(recognizing that it is “necessary” to “adjust aspects of the
physical training programs” for biological males and biological
females).
Unfairness or the perception thereof also provides a
legitimate basis for the Mattis policy—and easily falls within
our precedent. The military concluded that it “could be
915 F.3d 328, 333 (5th Cir. 2019) (Ho, J., concurring). “In common,
ordinary usage, . . . the word ‘sex’ means biologically male or
female[.]” Id. at 333–34 (quoting Hively v. Ivy Tech Community
Coll. of Indiana, 853 F.3d 339, 363 (7th Cir. 2017) (Sykes, J.,
dissenting)).
39
perceived as discriminatory to apply different biologically-
based standards to persons of the same biological sex based on
gender identity, which is irrelevant to standards grounded in
physical biology.” DoD Report 36, J.A. 304. “For example, it
unfairly discriminates against biological males who identify as
male and are held to male standards to allow biological males
who identify as female to be held to female standards,
especially where the transgender female retains many of the
biological characteristics and capabilities of a male.” Id. It
would also “result in perceived unfairness by biological
females who identify as female” and would “be required to
compete against” biological males who identify as female “in
training and athletic competition.” Id.
In the military’s view, plaintiffs’ demands would pit the
interests of transgender service members against the interests
of a potentially vast array of other service members who will
be placed in an awkward, potentially unfair, and possibly
bitterness-inducing posture of having to compete against those
who are either far stronger or weaker than they are. It may turn
out that these worries are overblown. Or it may be that wisdom
counsels running the risks in order to accommodate transgender
service members’ preferences. But to pretend that the military
cannot rationally be concerned about this novel source of
potential social conflict, resentment, and intra-unit strife is
untenable. The concern is at least reasonable, and the courts
cannot second-guess the military’s decision.
Indeed, if, as we’ve previously held, the military could
refuse to exempt certain religious males from male uniform
standards, so as to avoid “incurring resentment from those who
are compelled to adhere to the rules strictly,” Goldman v. Sec’y
of Defense, 734 F.2d 1531, 1540 (D.C. Cir. 1984), aff’d sub
nom. Goldman v. Weinberger, 475 U.S. 503, then surely the
military could, for the same reason, refuse to exempt certain
biological males from male dress standards (not to mention
40
body composition assessments and physical readiness testing),
DoD Report 31, J.A. 299. After all, the ability to express one’s
“religious . . . identity,” Goldman, 475 U.S. at 517 (Brennan,
J., dissenting), is surely no less protected than the ability to
express one’s “gender identity,” Appellees’ Br. 21; cf. U.S.
Const. amend. I.
Unit readiness. Gender transition is available under the
Carter policy only as a treatment for gender dysphoria. See,
e.g., Carter Memo Implementation Handbook 11, 14, J.A. 518,
521; Carter Memo Implementation Handbook: Navy
Supplement 2, J.A. 461; see also Appellees’ Br. 19, 41, 42
(referring to transition as “treatment”). The military concluded
here that accommodating requests for transition would “present
a significant challenge for unit readiness.” DoD Report 35, J.A.
303. As its report noted, “there is considerable scientific
uncertainty concerning whether” gender transition treatments
(e.g., sex reassignment surgery) “fully remedy . . . the mental
health problems associated with gender dysphoria.” Id. at 32,
J.A. 300; see, e.g., id. at 24, J.A. 292 (reporting the conclusion
of the Centers for Medicare and Medicaid Services “that there
was ‘not enough high quality evidence to determine whether
gender reassignment surgery improves health outcomes for
Medicare beneficiaries with gender dysphoria’”); RAND
Report 10, J.A. 626 (“[I]t is important to note that none of these
studies [on gender-transition related healthcare] were
randomized controlled trials (the gold standard for determining
treatment efficacy). In the absence of quality randomized trial
evidence, it is difficult to fully assess the outcomes of treatment
for [gender dysphoria].”). Those mental health problems, if un-
remedied, are substantial: Gender dysphoria is undisputedly
associated with “clinically significant distress,” e.g., Decl. of
George Richard Brown in Support of Plaintiffs ¶ 8 (May 11,
2018), J.A. 838; Report of the Transgender Military Service
Commission 10 (Mar. 2014), J.A. 757; AMA Br. 2; see also
Appellees’ Br. 19 (noting the “distress”), and can cause
41
“depression, impairment of function, self-mutilation to alter
one’s genital or secondary sex characteristics, other self-
injurious behaviors, and suicide,” AMA Br. 9. Any
“persistence of these problems is,” as the military reasonably
concluded, “a risk for readiness.” DoD Report 32, J.A. 300.
The military’s decision to “proceed cautiously” was thus
reasonable. Id. at 27, J.A. 295. We cannot, after all, “substitute
our own assessment for the Executive’s predictive judgments”
on matters of “national security.” Hawaii, 138 S. Ct. at 2421.
Administrative burdens. Such burdens are “not for this
Court to dismiss.” Rostker, 453 U.S. at 81 (upholding gender-
based classification where “Congress simply did not consider
it worth the added [administrative] burdens of including
women in draft and registration plans”). As the military
recognized, the “unique leadership challenges arising from
gender transition are evident in the [] handbook implementing
the Carter policy.” DoD Report 38, J.A. 306. This 71-page
handbook—actually touted by plaintiffs and the district court
as evidence of the Carter policy’s feasibility, see, e.g., Doe 2 v.
Mattis, 344 F. Supp. 3d 16, 28–29 (D.D.C. 2018); Decl. of
Deborah Lee James in Support of Pls.’ Mot. for Preliminary
Injunction ¶ 34 (Aug. 29, 2017), J.A. 1008–09—provides
guidance on “some of the issues” that commanders will face
under the Carter policy. Carter Memo Implementation
Handbook 8, J.A. 515. Consider one example—a simple swim
test, required semi-annually throughout the military: “[A]
female to male transgender Service member who has fully
transitioned, but did not undergo surgical change, would like to
wear a male swimsuit for the test with no shirt or other top
coverage.” Id. at 63, J.A. 570. The commanding officer has
much to do. First, consult the handbook for his options:
“counsel the individual,” “address the unit,” and consider
“additional options (e.g., requiring all personnel to wear
shirts).” Id. But the handbook is not “directive in nature”; it
provides only a “general discussion.” Id. at 48, J.A. 555. So,
42
the commander is “reminded” to also “consult with [his] Chain
of Command, . . . Service, and DoD guidelines before
determining the best course(s) of action.” Id. And, as always,
he should “[c]onsult with [the] SCCC [the Service Central
Coordination Cell],” id. at 63, J.A. 570; accord id. 48, J.A.
555—a service-level “cell of experts created to provide multi-
disciplinary (e.g., medical, legal) advice and assistance to
commanders with regard to service by transgender Service
members,” id. at 12, J.A. 519. And this is only a swim test.
A multitude of similar puzzles—e.g., issues concerning
showers (“Scenario 11”), sleeping (“Scenario 15”), and social
events (“Scenario 16”)—would call on the commander to re-
consult the handbook, his “Chain of Command, SCCC,
Service, and DoD guidelines before determining the best
course(s) of action.” Id. at 48, J.A. 555; see id. at 60–65, J.A.
567–72. If the commander found time for military issues—
after, say, adjusting the “timing” of the shower facilities to
avoid any conflicts and ensuring that each “shower stall[]”
contains “curtains” and “clothing hooks,” id. at 60–61, J.A.
567–68—then matters become “more complicated” still, id. at
69, J.A. 576. Consider deployments. Because “[s]ome nations
view transgender people as culturally unacceptable and will not
recognize [an] individual’s preferred gender,” the commander
must “[c]onduct a thorough analysis of the” destination country
by reviewing “the U.S. State Department’s country specific
website” and the “DoD Foreign Clearance Guide”—as well as,
of course, “discuss[ing] the situation with [his] chain of
command and the SCCC.” Id. After that, the commander must
also ensure that any “male” who happened to “have female
anatomical characteristics” was “screened for pregnancy.” Id.
at 51, J.A. 558. But there’s a wrinkle: Because the Carter policy
provided and plaintiffs demand that a person’s “gender marker
in DOD’s personnel database” line up with his or her preferred
gender (as opposed to biological sex), see Appellees’ Br. 45,
the commander must remember (because it’s not recorded in
43
the system) which of his “male” subordinates “maintained
female anatomy,” see Carter Memo Implementation Handbook
51, J.A. 558.
Whether these accommodations are “worth the added
burdens” or not is “not for this Court to” say. Rostker, 453 U.S.
at 81. It is for the executive.
3. We assess plaintiffs’ empirical attacks on the military’s
justifications with extreme deference.
Plaintiffs lob empirical attacks at the military’s
justifications. They contend that the justifications are mere ipse
dixit, with no “indication” or “data” in the record to support
them, and are “contrary” to both “expert” testimony and “the
consensus of the medical community.” Appellees’ Br. at 42.
But when the Supreme Court instructed that we in the judiciary
“must be particularly careful not to substitute . . . our own
evaluation of evidence for a reasonable evaluation by” the
political branches, it meant it. Rostker, 453 U.S. at 68. Given
the military’s reasonable evaluations, recounted above, the
Court has written off arguments like plaintiffs’ as “quite beside
the point.” Goldman, 475 U.S. at 509.
Take the military’s decision, citing unit cohesion issues, to
apply different dress regulations to biological males and
biological females, without exception. In Goldman, a plaintiff
attacked comparable dress standards, arguing, as plaintiffs do
here, that the military’s justifications for them were “mere ipse
dixit, with no support from actual experience or a scientific
study in the record, and [were] contradicted by expert
testimony.” 475 U.S. at 509. The Court, however, would have
none of it. Even though the regulations would have been
subject to heightened scrutiny if a government had sought to
apply them in the civilian world, see id. at 506 (citing Sherbert
v. Verner, 374 U.S. 398, 406 (1963)), the Court simply held that
44
the “desirability of dress regulations in the military [was]
decided by the appropriate military officials,” who were “under
no constitutional mandate to abandon their considered
professional judgment,” id. at 509. So too here.
Or consider the military’s decision to presumptively
disqualify individuals who have undergone gender transition,
citing “scientific uncertainty.” DoD Report 32, J.A. 300. The
military directly acknowledged plaintiffs’ argument—that the
“prevailing judgment of mental health practitioners is that
gender dysphoria can be treated with [] transition-related
care”—but explained that none of the relevant “studies account
for the added stress of military life, deployments, and combat.”
Id. at 24, J.A. 292. I recognize, of course, that a service member
who has surgically transitioned to his or her preferred gender
does not present many of the anomalies and confusions
applicable to social or hormonal transition. But as I’ve already
mentioned, the studies leave uncertainty even for civilian life,
and the military could reasonably rest on special characteristics
of military life. As in Rostker, a court would “palpably
exceed[] its authority” if it “ignored” this “considered
response.” 453 U.S. at 81.
D
Given the “healthy deference” that we owe the political
branches “in the area of military affairs,” Rostker, 453 U.S. at
66, plaintiffs look elsewhere to support their claim—namely, to
Twitter. As did the district court, they write off the entire
Mattis policy (along with the extensive supporting study) as
fruit of the poisonous tweet. As plaintiffs and the district court
see it, “unusual factors” supposedly surrounding the
President’s July 2017 tweet continue to taint all that has
happened since (and, evidently, even the Mattis memo of June
30, 2017, which predated the President’s intervention). The
“post hoc processes and rationales,” they assert, “appear to
45
have been constrained by, and not truly independent from, the
President’s initial policy decisions.” Appellees’ Br. 26
(quoting Doe II, 315 F. Supp. 3d at 497). In fact, it’s hard to
discern anything especially “unusual” in the process.
1. The executive change of policy was not unusual.
What of the circumstances supposedly surrounding the
“President’s initial policy decisions”—the July-August 2017
tweet and memorandum? Appellees’ Br. 26 (quoting Doe II,
315 F. Supp. 3d at 497). As the district court saw it, the “2017
Presidential directives” represented “an abrupt reversal in
policy” announced without “formality” (never defined by the
court) and contrary to the conclusions of the military itself. See
Doe II, 315 F. Supp. 3d at 497; see also Doe I, 275 F. Supp. 3d
212–13. Not exactly.
First, President Trump’s July-August 2017 directives
came a month after, and were consistent with, Secretary
Mattis’s prior memorandum. Compare Memorandum from
Secretary Mattis, to Secretaries of Military Departments (June
30, 2017), J.A. 425 (delaying implementation of Secretary
Carter’s policy change in order to have “additional time to
evaluate more carefully the impact”), with 2017 Presidential
Memorandum, 82 Fed. Reg. at 41,319 (Aug. 25, 2017)
(delaying implementation of Secretary Carter’s “policy
change” and, among other things, calling for “further study”).
What formality was lacking? After Chairman Dunford of the
Joint Chiefs made clear that a tweet was an inadequate ground
for action, see Memorandum from Chairman Dunford to Chiefs
of Military Services (July 27, 2017), J.A. 408, the President
issued a formal memorandum, published in the Federal
Register. See Nat’l Inst. of Military Justice v. U.S. Dep’t of
Defense, 512 F.3d 677, 692 (D.C. Cir. 2008) (Tatel, J.,
dissenting) (Instructions “published in the Federal Register
would be ‘formal.’”).
46
Second, even if the “2017 Presidential directives”
“abrupt[ly]” reversed the policy of the prior administration and
were issued without “formality,” Doe II, 315 F. Supp. 3d at
497, “there’s nothing unusual about a new” administration
“coming to office inclined to favor a different policy direction,
. . . disagreeing with staff, or cutting through red tape,” In re
Dep’t of Commerce, 139 S. Ct. 16, 17 (2018) (Gorsuch, J.,
concurring in part, dissenting in part); cf. Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 59 (1983) (Rehnquist, J., concurring in part, dissenting in
part) (“A change in administration brought about by the people
casting their votes is a perfectly reasonable basis for an
executive agency’s reappraisal of the costs and benefits of its
programs and regulations.”); Elena Kagan, Presidential
Administration, 114 Harv. L. Rev. 2245, 2378 (2001) (“[N]ew
administrative interpretations following new presidential
elections should provide a reason to think deference
appropriate rather than the opposite.”).
2. The military need not be independent of the President.
Consider next plaintiffs’ contention, accepted by the
district court, that “[d]eference to military decisionmaking . . .
depends on the actual exercise of independent military
judgment.” Appellees’ Br. 32; accord, e.g., 322 F. Supp. 3d at
100–01; Doe II, 315 F. Supp. 3d at 497; Doe I, 275 F. Supp. 3d
214. Accordingly, plaintiffs and the district court argue,
“deference does not apply here” because the Mattis policy did
not result from a process that was “‘truly independent’” of the
“‘President’s initial policy decisions.’” Appellees’ Br. 32
(quoting Doe II, 315 F. Supp. 3d at 497).
Forget the rhetorical disregard of the true sequence of
events. The “Constitution itself requires” deference to the
military choices of the political branches. Rostker, 453 U.S. at
67; see, e.g., U.S. Const. art. II, § 1, cl. 1. This includes
47
deference to the judgments of military officials—not because
of their expertise—but because “the military authorities have
been charged by the” constitutionally responsible branches—
that is, “the Executive and Legislative Branches”—“with
carrying out our Nation’s military policy.” Goldman, 475 U.S.
at 507–08.
Plaintiffs’ implication that military policies are suspect
unless they are (somehow) “independent” of the views of the
Commander in Chief, Appellees’ Br. 32; Doe II, 315 F. Supp.
3d at 497, verges on weird. We did, after all, rest our claim to
national independence in part on anathematizing George III’s
attempts to “render the Military independent of and superior to
the Civil Power.” The Declaration of Independence para. 14
(U.S. 1776) (emphasis added). And we endeavored in our
Constitution to make sure that such independence was never
exercised again. See, e.g., U.S. Const. art. II, § 2, cl. 1. That is
why “decisions as to the composition, training, equipping, and
control of a military force are . . . subject always to civilian
control of the Legislative and Executive Branches.” Gilligan,
413 U.S. at 10 (second emphasis added). “It is this power of
oversight and control of military force by elected
representatives and officials which underlies our entire
constitutional system.” Id. (emphasis added).
In any case, the record belies plaintiffs’ claim that the
Mattis policy and the supporting study were “constrained by
. . . the President’s initial policy decisions.” Appellees’ Br. 26
(quoting Doe II, 315 F. Supp. 3d at 497). Consider the events
following Secretary Mattis’s initial order to delay effectiveness
of the Carter plan and the President’s later tweet:
The President himself called for a comprehensive study:
“The Secretary of Defense . . . may advise me at any time,
in writing, that a change to [the pre-Carter] policy is
48
warranted.” 2017 Presidential Memorandum, 82 Fed.
Reg. at 41,319.
Secretary Mattis ordered a comprehensive study: “The
Panel and designated support personnel shall bring a
comprehensive, holistic, and objective approach to study
military service by transgender individuals, focusing on
military readiness, lethality, and unit cohesion, with due
regard for budgetary constraints and consistent with
applicable law.” Memorandum from Secretary Mattis to
Secretaries of Military Departments 2 (Sept. 14, 2017),
J.A. 404.
The Department of Defense understood the panel of
experts that Secretary Mattis convened to have conducted
a comprehensive study: “To fulfill its mandate, the Panel
addressed three questions:” (i) “Should the Department of
Defense access transgender individuals?” (ii) “Should the
Department allow transgender individuals to transition
gender while serving, and if so, what treatment should be
authorized?” (iii) “How should the Department address
transgender individuals who are currently serving?” DoD
Report 18, J.A. 286 (emphasis added).
The Department’s report and recommendations were, in
fact, comprehensive—and contrary to the President’s
initial policy decisions: Whereas the President’s July-
August 2017 directives called for “generally prohibit[ing]
openly transgender individuals” from serving, 2017
Presidential Memorandum, 82 Fed. Reg. at 41,319, the
Department “conclude[d] that transgender persons should
not be disqualified from service solely on account of their
transgender status,” DoD Report 19, J.A. 287.
When transmitting the proposed policy to the President,
Secretary Mattis confirmed that the review was
49
independent: “I charged the Panel to provide its best
military advise, based on increasing the lethality and
readiness of America’s armed forces, without regard to any
external factors.” Mattis Memo 1, J.A. 263.
In the same transmittal, Secretary Mattis asked the
President to “revoke” his initial policy directives: “I []
respectfully recommend that you revoke your
memorandum of August 25, 2017, regarding Military
Service by Transgender Individuals, thus allowing me . . .
to implement appropriate policies concerning military
service by transgender persons.” Mattis Memo 3, J.A. 265.
The President acknowledged Secretary Mattis’s
“independent judgment,” and “revoke[d]” his initial
policy decisions: “I hereby revoke my memorandum of
August 25, 2017, ‘Military Service by Transgender
Individuals,’ and any other directives I may have made
with respect to military service by transgender
individuals. . . . The Secretary of Defense . . . may
exercise [his] authority to implement any appropriate
policies concerning military service by transgender
individuals.” 83 Fed. Reg. at 13,367.
Especially given Secretary Mattis’s initial call for a “review”
of “all relevant considerations” a month before the President
tweeted anything, see Memorandum from Secretary Mattis to
Secretaries of Military Departments (June 30, 2017), J.A.
425—this is hardly a fait accompli by tweet, much less a coup
d’état, oxymoronic as that would be in context.
3. Our review of military decision-making is limited.
Plaintiffs and the district court may, to be sure, regard the
entire decisionmaking record as a Potemkin village, designed
to pull the wool over the eyes of simple-minded observers
50
(including reviewing courts). Of course the plausibility of such
a scheme tends to unravel as we try to imagine the dozens of
participants—the “Cabinet members and other officials,”
Hawaii, 138 S. Ct. at 2405—who would have been needed for
its realization.
But apart from implausibility, plaintiffs’ approach rests on
a fundamental misunderstanding of the nature of our review. In
Trump v. Hawaii, the Supreme Court addressed an executive
order that had been preceded by presidential tweets that the
dissenters characterized as “expressing animus toward Islam,”
138 S. Ct. at 2435 (Sotomayor, J., dissenting); accord id. at
2433 (Breyer, J., dissenting), a claim never directly refuted by
the majority. Refusing to see the issue as “whether to denounce
the statements,” and rejecting the exhortation to “probe the
sincerity of the stated justifications for the policy by reference
to extrinsic statements,” the Court saw its task as being to
“consider not only the statements of a particular President, but
also the authority of the Presidency itself.” 138 S. Ct. at 2418
(majority opinion). Although it might be permissible to
“consider plaintiffs’ extrinsic evidence” (in Hawaii, the
government conceded this point), the Court made clear that
courts must nevertheless “uphold the [challenged] policy so
long as it can reasonably be understood to result from a
justification independent of unconstitutional grounds.” Id. at
2420. And for all the reasons discussed above, the Mattis
policy can easily be understood to have arisen out of perfectly
legitimate considerations.
This “narrow standard of review ‘has particular force’”
where, as here, the case “overlap[s] with ‘the area of national
security.’” Id. at 2419 (quoting Kerry v. Din, 135 S. Ct. 2128,
2140 (2015) (Kennedy, J., concurring)). The Hawaii Court
offered two justifications for this standard of review—both of
which readily apply here. “For one, ‘[j]udicial inquiry into the
national-security realm raises concerns for the separation of
51
powers’ by intruding on the President’s constitutional
responsibilities[.]” Id. (alteration in original) (quoting Ziglar v.
Abbasi, 137 S. Ct. 1843, 1861 (2017)); see Gilligan, 413 U.S.
at 10–11. “For another, ‘when it comes to collecting evidence
and drawing inferences’ on questions of national security, ‘the
lack of competence on the part of the courts is marked.’”
Hawaii, 138 S. Ct. at 2419 (quoting Holder v. Humanitarian
Law Project, 561 U.S. 1, 34 (2010)). For both reasons, our
review into matters of “national security is highly constrained.”
Id. at 2420; see also id. at 2420 n.5 (rejecting a “more free-
ranging inquiry” in the “national security” context).
This highly deferential approach is evident in the Court’s
review—and affirmance—of two facially discriminatory,
gender-based classifications that would unquestionably have
fallen had any government attempted to apply them in the
civilian world. In Schlesinger the Court upheld a statute
entitling male and female Navy lieutenants to different periods
of tenure, 419 U.S. at 499–500—that is, a statue “premised
solely upon” a “[s]uspect” classification, id. at 511 (Brennan,
J., dissenting). Although the dissent focused (at length) on
what “in fact” was “behind” Congress’s decision, id. at 520, the
majority made quick work of the challenge, looking, instead, to
what “Congress may . . . quite rationally have believed,” id. at
508 (majority opinion) (emphasis added). This was not a
searching inquiry. See id. at 511 (Brennan, J., dissenting)
(“[T]he Court goes far to conjure up a legislative purpose which
may have underlain the gender-based distinction here
attacked.”). Rather, the majority’s approach was one grounded
in—and thus constrained by—a proper understanding of the
separation of powers. See id. at 510–11 (majority opinion)
(discussing U.S. Const. art. I, § 8, cls. 12–14; art. II, § 2, cl. 1).
Rostker—upholding a statutory exclusion of females from
draft registration—pursued a similarly constrained analysis.
As in Schlesinger, the dissenting justices homed in on what
52
they thought “Congress itself [had] concluded.” Rostker, 453
U.S. at 83 (White, J., dissenting); see also, e.g., id. at 106–07
(Marshall, J., dissenting) (finding “nothing in the Senate
Report” to support the majority’s representation of what
“Congress believed”). Yet, again, the majority declined to
embark on a searching inquiry of congressional motives.
Rather, invoking Schlesinger, see 453 U.S. at 70 (majority
opinion) (describing it as “perhaps” the “best instance[]” of
proper “reconciliation between the deference due Congress”
and the Court’s own duty), the Court simply identified
conclusions or facts in the record that justified Congress’s
policy choice—the whole time scrupulously resisting the urge
to substitute its own “evaluation of evidence” for that of
Congress, id. at 68.
In the words of Hawaii, the Court upheld these policies
because they could “reasonably be understood to result from a
justification independent of unconstitutional grounds,” 138 S.
Ct. at 2420—as could the Mattis policy.
E
Confronted with Hawaii, Goldman, Rostker, and
Schlesinger, plaintiffs contend that “heightened scrutiny”
nevertheless applies. Appellees’ Br. 32; accord, e.g., Doe I,
275 F. Supp. 3d at 211 (applying “heightened scrutiny”). This
is so, they claim, because the Mattis policy “facially”
discriminates against a “suspect” class (i.e., transgender
persons).7 See, e.g., Appellees’ Br. 16. But (1) the Mattis
policy is facially neutral, and (2) it would not trigger heightened
scrutiny even if it were not.
7
For the reasons below we need not decide whether transgender
persons are members of a suspect class.
53
The Mattis policy, like the Carter policy before it, turns not
on transgender status, but on a medical condition called gender
dysphoria. See Mattis Memo 2–3, J.A. 264–65; Carter Memo,
attachment at 1, J.A. 588. In fact, the Mattis policy expressly
provides that “[t]ransgender persons without a history or
diagnosis of gender dysphoria, who are otherwise qualified for
service, may serve, like all other Service members, in their
biological sex.” Mattis Memo 3, J.A. 265 (emphasis added).
Plaintiffs, of course, object to the requirement that all must
serve in their biological sex. That is central to their claim. See
Oral Arg. Tr. 19:12–16 (arguing that the Mattis policy “requires
anyone who serves to do so in their biological sex,” but that
“not living in a person’s biological sex is the defining
characteristic of what it means to be transgender”). But the
requirement is nevertheless facially neutral; “all” means “all.”
Transgender or non-transgender; gender dysphoria or non-
gender dysphoria; “all” service members must serve “in their
biological sex.” Mattis Memo 3, J.A. 265. This can’t be
facially discriminatory as to transgender persons; military
officials need not know an individual’s transgender status in
order to enforce the policy—knowledge of physical
characteristics unrelated to gender preference is both necessary
and sufficient. Cf. Crandall v. Paralyzed Veterans of Am., 146
F.3d 894, 897 (D.C. Cir. 1998) (observing that an employer
can’t discriminate on the basis of a disability without an actual
“awareness of the disability itself”).
To be sure, plaintiffs (wrongly) maintain that the
biological-based sex standards operate as a complete ban on
transgender persons. Panel Judgment *2 (This is “clear
error.”). But the effect of these standards on transgender
persons (Slip op. 20 n.* (Wilkins, J., concurring)) is no different
from that of a regulation barring headgear (and thus yarmulkes)
on Orthodox Jews. See Goldman, 475 U.S. at 514 (Brennan,
J., dissenting) (“It sets up an almost absolute bar to the
54
fulfillment of a religious duty.”). Even if both policies require
“suppressi[on] [of] the characteristic that defines [a person’s]
identity,” Appellees’ Br. 21—be it “transgender identity,” id.,
or “religious . . . identity,” Goldman, 475 U.S. at 517 (Brennan,
J., dissenting)—the magnitude of the impact does nothing to
transform a facially neutral policy into a facially discriminatory
one, see id. at 510 (majority opinion) (describing the headgear
policy as “reasonabl[e]” and “evenhanded[]” “even though [its]
effect is to restrict . . . [expression] required by [] religious
beliefs”); id. at 513 (Stevens, J., concurring) (agreeing that the
headgear policy is “neutral, completely objective”).
Plaintiffs, nevertheless, maintain that the Mattis policy is
invalid because it “hinges on a person’s transgender status; it
subjects transgender people—and only transgender people—to
a ‘special additional exclusionary rule.’” Appellees’ Br. 20
(quoting Doe II, 315 F. Supp. 3d at 497); accord, e.g., Stockman
v. Trump, 331 F. Supp. 3d 990, 999–1000 (C.D. Cal. 2018),
appeal docketed, No. 18-56539 (9th Cir. Nov. 16, 2018),
stayed, No. 18A627, 2019 WL 271946 (U.S. Jan. 22, 2019),
and cert. before judgment denied, No. 18-678, 2019 WL
272027 (U.S. Jan. 22, 2019). The argument (it seems) proceeds
as follows: Whereas both transgender and “non-transgender
people can experience gender dysphoria,” Report of the
Transgender Military Service Commission 24 n.31, J.A. 771
(emphasis added); accord DoD Report 20 n.57, J.A. 288, the
Mattis policy presumptively disqualifies only “[t]ransgender
persons with a history or diagnosis of gender dysphoria,”
Appellees’ Br. 20 (quoting Mattis Memo 2, J.A. 264).
But in reality non-transgender people with gender
dysphoria are no better off than their transgender compatriots
in terms of rules for accession and retention. And this would
be true even if the Mattis policy on gender dysphoria were
applied only to transgender persons, as plaintiffs claim, but the
record appears to bely. See DoD Report 42, J.A. 310
55
(describing the Mattis policy’s gender dysphoria
disqualification in terms of all “persons”). Non-transgender
individuals who develop gender dysphoria do so as a
consequence of grievous injuries or diseases, see DoD Report
20 n.57, J.A. 288 (citing Report of the Transgender Military
Service Commission 24 n.31, J.A. 771), that are themselves
presumptively disqualifying. The only examples in the record
involve horrific testicular wounds or mastectomies because of
cancer. But, absent waiver, no individual—transgender or
not—may join the military with a history of such conditions.
See DoD Instruction 6130.03: Medical Standards for
Appointment, Enlistment, or Induction into the Military
Services 25 (May 6, 2018), J.A. 236 (disqualifying those
without testicles); id. at 46, J.A. 257 (same for those with
history of malignancy). And if an individual were already in
the military when he or she began experiencing gender
dysphoria, then—again, regardless of transgender status—that
individual could “be retained” so long as he or she did “not
require a change of gender and remain[ed] deployable within
applicable retention standards.” Mattis Memo 2, J.A. 26. There
is thus no daylight between the opportunities available to
transgender individuals with gender dysphoria and non-
transgender individuals with gender dysphoria.
And even if there were a difference—suppose there were,
theoretically, a non-transgender person who suffered from
gender dysphoria and who was eligible to serve without
waiver—plaintiffs’ attack on the Mattis policy would still be
untenable. Plaintiffs cannot have their cake and eat it, too: they
cannot seek to invalidate the Mattis policy on the basis that it
“subjects transgender people—and only transgender people—
to a ‘special additional exclusionary rule,’” Appellees’ Br. 20,
while, at the same time, seeking a remedy (a return to the Carter
policy, see Second Am. Compl. 20, J.A. 209) that runs afoul of
precisely the principle they invoke against the Mattis policy: it
too subjects “transgender” people—and only “transgender”
56
people—to a special additional exclusionary rule, see Carter
Memo 1, J.A. 585 (“This DTM [Directive-type Memorandum]:
Establishes policy . . . for the standards for retention, accession
. . . for transgender personnel[.]”). Cf. United States v.
Bethlehem Steel Corp., 446 F.2d 652, 661 (2d Cir. 1971)
(rejecting objection to one remedy where party didn’t object to
a different remedy that was “logically . . . subject to the same
[alleged] defect”).
Further, the context refutes plaintiffs’ inference of biased
intent. To the extent that Secretary Mattis addressed
“transgender persons” (as opposed to all persons), this focus
seems more a sign of bureaucratic orderliness than animus.
Recall that Secretary Carter first commissioned studies
regarding service by “transgender Service members” and,
ultimately, established a new policy for service by “transgender
personnel.” See Memorandum from Secretary Carter to
Secretaries of Military Departments (July 28, 2015), J.A. 709;
Carter Memo, J.A. 585. It is only natural that his successor
would follow suit.
In addition, there appear to be genuine bureaucratic
imperatives that swayed Secretary Carter as much as Secretary
Mattis. For example, it seems quite rational to handle on a case-
by-case basis (rather than with a formal policy) the evidently
rare instances in which non-transgender persons develop
gender dysphoria. The examples in the record seem in their
nature to call for case-specific treatment—grievous battlefield
injuries (i.e., “genital wounds”) and drastic surgeries (i.e.,
“mastectom[ies] because of breast cancer”). DoD Report 20
n.57, J.A. 288. To handle these on an individualized basis
seems more a matter of common sense than animus.
In any case, even if the Mattis policy were facially
discriminatory, this fact would not compel a different result.
The policy disputed in Rostker, after all, “was not facially
57
neutral,” as counsel for plaintiffs conceded. See Oral Arg. Tr.
26:16–20 (conceding that “Rostker wasn’t” facially neutral).
Nor is plaintiffs’ comparison to Frontiero v. Richardson, 411
U.S. 677 (1973) (plurality opinion), apt. See Appellees’ Br. 33.
As we have explained, the only reason that the Court applied
heightened scrutiny to the disputed congressional rules on
military fringe benefits was because, unlike here, the
challenged policies “never purported to be a congressional
judgment on a uniquely military matter.” Goldman, 734 F.2d
at 1537.
Here, as in Rostker, the Mattis policy’s classifications are
“not invidious, but rather realistically reflect[] the fact that the
sexes are not similarly situated.” Rostker, 453 U.S. at 79. To
say, for example, that a biological male (who identifies as
female) is similarly situated to a biological female is, to put it
courteously, a “gesture[] of superficial equality.” Id. Whatever
the arguments for such a gesture, it is not constitutionally
required in the military context. Rostker, 453 U.S. at 79.
And while some transgender individuals (an exceedingly
small percentage) undergo sex-reassignment surgery, which
might, in some instances, closely align a person’s biological sex
to his preferred gender, the fact is that an anatomical male from
birth is simply not the same as an anatomical male from
surgery: one has undergone a rare medical intervention; the
other has not. The military may legitimately decide that the
two are “not similarly situated,” Rostker, 453 U.S. at 78, and
the executive branch is under no constitutional obligation to roll
the dice, hoping—against its own considered assessment of the
evidence, see, e.g., DoD Report 24, J.A. 292; id. at 32, J.A.
300—that the efficacy of such surgeries will reliably withstand
the rigors of combat. Hawaii, 138 S. Ct. at 2421 (“[W]e cannot
substitute our own assessment for the Executive’s predictive
judgments on” matters of “national security.”).
58
IV
What I have said thus far is enough to reverse the decision
of the district court and dissolve the preliminary injunction.
Having reached this point, a court of appeals would typically
end its review; with the injunction dissolved, the case would
then proceed in the district court. (Under my approach, the
district court would, of course, be constrained by this court’s
analysis of the merits.)
But there are occasions where it is appropriate to proceed
further and “definitively decid[e] the merits.” U.S. Ass’n of
Reptile Keepers, Inc. v. Zinke, 852 F.3d 1131, 1134–35 (D.C.
Cir. 2017) (emphasis added). This is one of them. As I said at
the outset, see supra Part II.B, “once jurisdiction is properly
invoked under [28 U.S.C.] § 1292(a)(1),” we may “‘dispos[e]
of all matters appropriately raised by the record, including entry
of final judgment.’” Hartman, 19 F.3d at 1464 (quoting
Wagner, 836 F.2d at 585); accord, e.g., Munaf, 553 U.S. at 691
(“[A] reviewing court has the power on appeal from an
interlocutory order ‘to examine the merits of the case . . . and
upon deciding them in favor of the defendant to dismiss the
bill.’” (second alteration in original) (quoting Story, 268 U.S.
at 292)).
The present case implicates sensitive separation of powers
concerns—all in the context of military preparedness. See, e.g.,
Munaf, 553 U.S. at 692 (resolving the merits and dismissing the
case, which had arisen “in the context of ongoing military
operations”); see also Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 584–85 (1952) (resolving the merits on appeal
from stay of preliminary injunction). And, for the reasons
discussed above, the government “is entitled to judgment as a
matter of law.” Munaf, 553 U.S. at 692. The district court’s
finding that “some factual issues are in dispute,” Slip op. 19
(Wilkins, J., concurring), does not warrant a different
59
conclusion. As explained above, those “facts”—“about the
process leading up to the development of the Mattis [policy],”
322 F. Supp. 3d at 100; see also Doe II, 315 F. Supp. 3d at
497—are irrelevant to the judicial analysis of military
personnel policy dictated by Supreme Court authority, see
supra Part III.D.3. Nor does any “confusion” concerning the
Mattis policy’s “requirements” for service in accordance with
the standards applicable to one’s “biological sex,” Slip op. 20
(Wilkins, J., concurring), call for further discovery. It’s hard to
imagine how more detail on that subject could have any impact
on plaintiffs’ “facial challenge” (Appellees’ Br. 53) to the
Mattis policy, especially as the Carter policy, which plaintiffs
want the executive branch to “revert to,” see Second Am.
Compl. 20, J.A. 209, similarly required service in one’s
biological sex (at least until a service member’s gender
transition was “complete,” see Appellees’ Br. 45).
Any further proceedings—including a highly intrusive
examination of the President’s mental processes, see, e.g., 322
F. Supp. 3d at 101; 319 F. Supp. 3d at 543—would thus “be
idle, or worse,” Orloff, 345 U.S. at 92, see, e.g., Reptile
Keepers, 852 F.3d at 1135 (“reach[ing] a definitive judgment
. . . in order to ‘save the parties the expense of future litigation’”
(quoting Thornburgh v. Am. Coll. of Obstetricians &
Gynecologists, 476 U.S. 747, 756–57 (1986)). The district
courts in Rostker and Goldman, to be sure, may have permitted
such intrusions into executive decision making, see Slip op. 21
(Wilkins, J., concurring)—but, of course, those courts were
reversed, see Goldman, 475 U.S. at 504 (“The Court of Appeals
. . . reversed . . . and [we] now affirm.”); Rostker, 453 U.S. at
83 (“The decision of the District Court . . . is accordingly
Reversed.”). And it does not appear that the Supreme Court
considered any evidence uncovered by those trial courts’
explorations to be necessary—or even pertinent—to its
disposition of the cases. To the contrary, Goldman dismissed
plaintiff’s “expert testimony” as “quite beside the point,” 475
60
U.S. at 509, and Rostker chastised the district court for
“palpably exceed[ing] its authority” in “relying on [such]
testimony,” 453 U.S. at 81. Compare, e.g., Goldberg v.
Rostker, 509 F. Supp. 586, 600–02 & nn.25–26 (E.D. Pa. 1980)
(three-judge court) (citing deposition testimony that 80,000
females inductees could fill noncombat roles “and release men
for immediate deployment into combat”), and Rostker, 453
U.S. at 84 (White, J., dissenting) (similar), with Rostker, 453
U.S. at 81 (majority opinion) (criticizing the district court for
relying on precisely that testimony). I do not see inviting a
district court to go down the pointless path of the Goldman and
Rostker district courts as a sign of judicial restraint. But cf. Slip
op. 19, 21 (Wilkins, J., concurring).
This is not a matter of privilege, see Slip op. 20 (Wilkins,
J., concurring), or of shielding the government “from all
discovery,” id. at 21, but of respect for the judiciary’s proper
place in our democracy—not to mention common sense:
Where, as here, plaintiffs cannot save their claims with any
further discovery because the law so clearly forecloses their
demands—both on the current record and with any additions
that can plausibly be imagined—the court should not bless (or
invite) a futile fishing expedition into the executive’s
decisionmaking—especially of the intrusive sort contemplated
by the district court. The court should say what the law is and
be done with it.
Here, we have the benefit of the Supreme Court’s views in
Rostker and Goldman—which leave little doubt that further
proceedings would do nothing but harm. After all, “judicial
inquiries into . . . executive motivation represent a substantial
intrusion into the workings of [a coordinate] branch[] of
government.” Vill. of Arlington Heights v. Metro. Housing
Dev. Corp., 429 U.S. 252, 268 n.18 (1977). And litigation itself
“might distract [the executive branch] from the energetic
performance of its constitutional duties”—a distraction that we
61
must guard against, as a matter of “paramount necessity.”
Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 382 (2004).
That is why, where, as here, the executive branch has acted
“within its appropriate sphere,” its action “must be promptly
recognized, and . . . [the] delay and inconvenience of a
prolonged litigation must be avoided by prompt termination of
the proceedings in the district court.” Id. (brackets omitted;
ellipsis in original) (quoting Ex parte Republic of Peru, 318
U.S. 578, 587 (1943)).
In this case, the executive branch has reasonably “drawn
the line” for military service, Goldman, 475 U.S. at 510,
“balancing” the needs of “servicemen against the needs of the
military” itself, Loving, 517 U.S. at 767. Plaintiffs’ claims, by
contrast, are fundamentally flawed in almost every respect.
They give short shrift to the findings of a panel of military
experts commissioned by the secretary of defense. They never
grapple with the fact that the presidential tweet, on which they
place so much weight, post-dates—rather than ante-dates—the
decision of the secretary to reevaluate the previous
administration’s policies. Their theory of the case requires
recharacterizing the policy adopted by Secretary Mattis as a
“ban” on service by transgender persons, which it is not, and
pretending that the military could comply with its existing
(partially congressionally mandated) sex-based standards by
allowing persons of one biological sex to conform to the rules
applicable to the opposite biological sex.
In sum, plaintiffs cannot demonstrate a likelihood of
success on the merits. For that reason, I “need not consider the
other [preliminary injunction] factors,” Greater New Orleans
Fair Hous. Action Ctr. v. U.S. Dep’t of Hous. & Urban Dev.,
639 F.3d 1078, 1089 (D.C. Cir. 2011); see also Munaf, 553 U.S.
at 690 (“[A] party seeking a preliminary injunction must
demonstrate, among other things, ‘a likelihood of success on
the merits.’” (quoting Gonzales v. O Centro Espirita
62
Beneficente Uniao Do Vegetal, 546 U.S. 418, 428 (2006))).
Plaintiffs cannot prevail—so, as in Munaf, “the wisest course”
is to “terminate the litigation now.” 553 U.S. at 692.
63
Appendix: Standing and the Nationwide Injunction
Because at least one plaintiff has standing, the rather
obvious defects of the others’ standing need not be resolved on
this appeal. And because there would be ample ground to
vacate the nationwide injunction even if it ran (properly) only
in favor of the parties before the court, the same is true of the
injunction’s breadth. But because the district court’s use of the
narrowness of the group before it as a justification for the
breadth of its injunction is so extraordinary, see 344 F. Supp.
3d at 24 (claiming that “nationwide injunctions are proper, and
sometimes necessary, in circumstances where class
certification may be impossible”), and because the plaintiffs’
theories of standing (accepted by the district court) are so flatly
in contradiction of binding precedent, a brief discussion of
these issues seems worthwhile—especially as the case is set to
proceed before the district court. See Air Line Pilots Ass’n v.
UAL Corp., 897 F.2d 1394, 1397 (7th Cir. 1990) (an appellate
court’s reversal on one ground does not moot alternative
grounds for reversal).
Standing. To begin, a majority of the plaintiffs
unquestionably lack standing. Plaintiffs Regan Kibby, Jane
Does 2 through 5, and John Doe 1 were diagnosed with gender
dysphoria in reliance on the Carter policy, see Doe II, 315 F.
Supp. 3d at 486; Second Am. Compl. ¶¶ 7–21, 27–30, 33–34,
J.A. 191–96, and now demand that the military “revert to” the
standards established under that policy, see id. at 20, J.A. 209.
But Secretary Mattis agreed with them: Pursuant to the reliance
exception, these service members “may continue to serve in
their preferred gender and receive medically necessary
treatment for gender dysphoria.” Mattis Memo 2, J.A. 264.
This is not in dispute. See, e.g., Doe II, 315 F. Supp. 3d at 486;
Appellees’ Br. 49. What, then, are they doing here? These
plaintiffs have already secured agreement to exactly what they
64
want; there is thus nothing left for the court to give them; and
their claims must be dismissed.
Plaintiffs respond that they still need judicial intervention
because the Mattis policy—even if it were applied only to
others—would, nonetheless, stigmatize them as members of
“an inherently inferior class of service members.” 344 F. Supp.
3d at 25; see Appellees’ Br. 49–50. But this argument is
frivolous. 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. In re Navy Chaplaincy,
534 F.3d 756, 763 (D.C. Cir. 2008) (Kavanaugh, J.). Period.
The district court’s continued insistence that it does is baffling.
Compare, e.g., Doe II, 315 F. Supp. 3d at 487–88 (“[T]he
‘stigmatic’ aspects of Plaintiffs’ injuries were . . . alone
sufficient to confer standing[.]”), with Allen v. Wright, 468 U.S.
737, 755 (1984) (Plaintiffs cannot establish “standing to litigate
their claims based on the[ir] stigmatizing injury[.]”).8
As an alternative ground for standing, plaintiffs contend
that the Mattis policy—again, even if it were applied only to
others—would, nonetheless, “imperil [their] military careers by
reducing their ‘opportunities for assignments, promotion,
8
The “stigmatizing injury often caused by . . . discrimination” may,
“in some circumstances,” support standing, Allen, 468 U.S. at 755
(citing Heckler v. Mathews, 465 U.S. 728, 739–40 (1984))—namely,
where an individual has been “personally denied equal treatment,”
but relief in the form of an “extension of benefits” is “forbid[den],”
Heckler, 465 U.S. at 740. In such circumstances, the Court has been
ready to “redress[]” the “unequal treatment” by ordering “withdrawal
of benefits from the favored class,” even though the only direct
benefit to the plaintiff would be removal of a “stigma[].” Id. at 739–
40. But where, as here, a plaintiff has not been “personally denied
equal treatment,” the plaintiff does not “have standing to litigate [his]
claims based on the stigmatizing injury.” Allen, 468 U.S. at 755.
65
training, and deployment.’” Appellees’ Br. 50 (quoting Doe II,
315 F. Supp. 3d at 488). That is so, plaintiffs claim, not because
of any particular provision of the policy, but because its mere
existence (along with its “lengthy supporting memorandum”
and, of course, the President’s tweets) would spur military
officers to “place less trust in Plaintiffs.” Doe II, 315 F. Supp.
3d at 488.
How so? Let’s assume (against reason) that plaintiffs are
right—that military officers will so over-zealously implement
an implied instruction (i.e., “that Plaintiffs’ service is harmful
to the military”), that these obsessive followers of “military
hierarchy,” id., will completely overlook an explicit instruction
to the contrary (i.e., respect the military’s “commitment to
these Service members,” DoD Report 43, J.A. 311). How
would an injunction against enforcement of the Mattis policy
bring plaintiffs relief? Whether or not the military could
enforce the Mattis policy has nothing to do with how various
unspecified officers (who, by the way, are not parties before the
court) would react to the policy’s “lengthy supporting
memorandum” or to the President’s tweets. See Doe II, 315 F.
Supp. 3d at 488. Those allegedly malign directives would still
exist: The district court cannot order the Department of Defense
to drop all copies of the military’s study down the memory
hole; nor can it force the secretary of defense to intone some
court-approved truth on the Pentagon’s steps. So, whether
plaintiffs will end up with “an unfavorable work detail” or not,
id., enforcement of the Mattis policy will have nothing to do
with it; their claims, if any ever arise, will be against not the
policy, but the officer who (unlawfully) discriminates.
With no plausible claim to standing, then, the claims of
plaintiffs Regan Kibby, Jane Does 2 through 5, and John Doe
1 must be dismissed.
66
Nationwide Injunction. Plaintiffs demanded that a single
district judge “bar” a coordinate branch of government from
“enforc[ing]” a challenged “policy” directive—not merely
against the ten plaintiffs, but against any individual to whom it
might be applied, whether they are before the court or not.
Appellees’ Br. 53. This so-called “modern” remedy, 344 F.
Supp. 3d at 24, is highly unusual, to put it mildly.
Just last term, the Supreme Court reiterated a critical
message about “the proper—and properly limited—role of the
courts in [our] democratic society.” Gill v. Whitford, 138 S. Ct.
1916, 1929 (2018) (quoting Allen, 468 U.S. at 750). “The
Court’s constitutionally prescribed role is to vindicate the
individual rights of the people appearing before it.” Id. at 1933.
Nothing more. “[I]t is not the role of courts, but that of the
political branches, to shape the institutions of government in
such fashion as to comply with the laws and the Constitution.”
Lewis v. Casey, 518 U.S. 343, 349 (1996). Thus, the Court
“caution[ed],” a plaintiff’s judicial “remedy must be tailored to
redress the plaintiff’s particular injury.” Gill, 138 S. Ct. at 1934
(emphasis added) (quoting DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 353 (2006)).
Such judicial restraint is especially appropriate where, as
here, the case concerns the internal operations of the military.
“Our constitutional framework ‘requires that the judiciary be as
scrupulous not to interfere with legitimate Army matters as the
Army must be scrupulous not to intervene in judicial matters.’”
Munaf, 553 U.S. at 700 (quoting Orloff, 345 U.S. at 94). Thus,
even if a remedy were appropriate in this case—and it’s not—
it should in no event extend beyond the actual plaintiffs. Cf.
Dep’t of Defense v. Meinhold, 510 U.S. 939, 939 (1993)
(staying injunction against military personnel policy to the
extent the injunction “grant[ed] relief to persons other than [the
plaintiff]”); Schlesinger v. Reservists Comm. to Stop the War,
418 U.S. 208, 222 (1974) (explaining that the “framing of relief
67
no broader than required by the precise facts” of the case is
“especially important when the relief sought produces a
confrontation with one of the coordinate branches of the
Government”).
Indeed, when asked at oral argument for any case “in the
history of the Republic in which the judiciary has decided
military-wide rules about accession and retention,” plaintiffs’
counsel offered only Crawford v. Cushman, 531 F.2d 1114 (2d
Cir. 1976). Oral Arg. Tr. 28:21–29:14. But although Crawford
used casual language suggesting readiness to direct an order
“declaring the challenged regulation to be unconstitutional,” id.
at 1126, 1127, it never issued any such order, and, in any event,
the Second Circuit has broadly rejected Crawford’s entire want
of deference to military judgments “in light of the intervening
Supreme Court opinion in Rostker[],” see Mack v. Rumsfeld,
784 F.2d 438, 439 (2d Cir. 1986); see also Goldman, 734 F.2d
at 1537–38 (offering similar criticism).