Doe v. Trump

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANE DOE 1, et al.,
Plaintiffs
v. Civil Action No. 17-1597 (CKK)
DONALD J. TRUMP, et al.,
Defendants
MEMORANDUM OPINION
(October 30, 2017)
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.” A formal Presidential Memorandum followed on August 25,
2017. Before the Presidential Memorandum, the Department of Defense had announced that
openly transgender individuals would be allowed to enlist in the military, effective January 1,
2018, and had prohibited the discharge of service members based solely on their gender
identities. The Presidential Memorandum reversed these policies. First, the Memorandum
indefinitely extends a prohibition against transgender individuals entering the military, a process
formally referred to as “accession” (the “Accession Directive”). Second, the Memorandum
requires the military to authorize, by no later than March 23, 2018, the discharge of transgender
service members (the “Retention Directive”).
The Department of Defense is required to submit a plan implementing the directives of
the Presidential Memorandum by February 21, 2018. On September 14, 2017, Secretary of
Defense James Mattis promulgated Interim Guidance establishing Department of Defense policy
toward transgender service members until the directives of the Presidential Memorandum take
effect. Pursuant to the Presidential Memorandum and the Interim Guidance, the protections
afforded to transgender service members against discharge lapse early next year.
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Plaintiffs are current and aspiring service members who are transgender. Many have
years of experience in the military. Some have decades. They have been deployed on active
duty in Iraq and Afghanistan. They have and continue to serve with distinction. All fear that the
directives of the Presidential Memorandum will have devastating impacts on their careers and
their families. They have moved the Court to enjoin the directives of the Presidential
Memorandum, believing that these directives violate the fundamental guarantees of due process
afforded by the Fifth Amendment to the United States Constitution. Defendants have moved to
dismiss this case, principally on the basis that the Court lacks jurisdiction. Although highly
technical, these jurisdictional arguments reduce to a few simple points: the Presidential
Memorandum has not effected a definitive change in military policy; rather, that policy is still
subject to review; until that review is complete, transgender service members are protected; and
any prospective injuries are too speculative to require judicial intervention.
These arguments, while perhaps compelling in the abstract, wither away under scrutiny.
The Memorandum unequivocally directs the military to prohibit indefinitely the accession of
transgender individuals and to authorize their discharge. This decision has already been made.
These directives must be executed by a date certain, and there is no reason to believe that they
will not be executed. Plaintiffs have established that they will be injured by these directives, due
both to the inherent inequality they impose, and the risk of discharge and denial of accession that
they engender. Further delay would only serve to harm the Plaintiffs. Given these
circumstances, the Court is in a positon to preliminarily adjudicate the propriety of these
directives, and it does so here.
The Court holds that Plaintiffs are likely to succeed on their Fifth Amendment claim. As
a form of government action that classifies people based on their gender identity, and disfavors a
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class of historically persecuted and politically powerless individuals, the President’s directives
are subject to a fairly searching form of scrutiny. Plaintiffs claim that the President’s directives
cannot survive such scrutiny because they are not genuinely based on legitimate concerns
regarding military effectiveness or budget constraints, but are instead driven by a desire to
express disapproval of transgender people generally. The Court finds that a number of factors—
including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances
surrounding the President’s announcement of them, the fact that the reasons given for them do
not appear to be supported by any facts, and the recent rejection of those reasons by the military
itself—strongly suggest that Plaintiffs’ Fifth Amendment claim is meritorious.
Accordingly, following an exhaustive review of the record, the pleadings, 1 and the
relevant authorities, the Court GRANTS-IN-PART and DENIES-IN-PART Plaintiffs’ Motion
1
The Court’s consideration has focused on the following documents: Pls.’ App. for
Preliminary Injunction, ECF No. 13 (“Pls.’ Mem.”); Defs.’ Mot. to Dismiss and Opp’n to Pls.’
App. for Preliminary Injunction, ECF No. 45 (“Defs.’ Mem.”); Pls.’ Opp’n to Defs.’ Mot. to
Dismiss and Reply in Support of App. for Preliminary Injunction, ECF No. 55 (“Pls.’ Reply”);
and Defs.’ Reply in Support of Mot. to Dismiss, ECF No. 57 (“Defs.’ Reply”). The Court has
also considered the declarations attached to these pleadings, including: Decl. of Kevin M. Lamb,
ECF No. 13-1 (“Lamb Decl.”); Decl. of Brad R. Carson, ECF No. 13-3 (“Carson Decl.”); Decl.
of Deborah L. James, ECF No. 13-5 (“James Decl.”); Decl. of Eric K. Fanning, ECF No. 13-7
(“Fanning Decl.”); Decl. of Raymond E. Mabus, Jr., ECF No. 13-9 (“Mabus Decl.”); Decl. of
George R. Brown, MD, ECF No. 13-11 (“Brown Decl.”); Decl. of Margaret C. Wilmoth, ECF
No. 13-13 (“Wilmoth Decl.”); Decl. of Regan V. Kibby, ECF No. 13-14 (“Kibby Decl.”); Decl.
of Dylan Kohere, ECF No. 13-15 (“Kohere Decl.”); Decl. of Christopher R. Looney, ECF No. 40
(“Looney Decl.”); Decl. of Robert B. Chadwick, ECF No. 45-2 (“Chadwick Decl.”); Decl. of
Robert O. Burns, ECF No. 45-3 (“Burns Decl.”); Supp. Decl. of Raymond E. Mabus, Jr., ECF
No. 51-1 (“Mabus Supp. Decl.”); Supp. Decl. of Deborah L. James, ECF No. 51-2 (“James Supp.
Decl.”); Supp. Decl. of Eric K. Fanning, ECF No. 51-3 (“Fanning Supp. Decl.”); Decl. of Mark
J. Eitelberg, ECF No. 51-4 (“Eitelberg Decl.”); Supp. Decl. of George R. Brown, MD, ECF No.
51-5 (“Brown Supp. Decl.”); Decl. Pertaining to Jane Doe 1, ECF No. 56-1 (“Decl. re Jane Doe
1”); Decl. Pertaining to Jane Doe 2, ECF No. 56-2 (“Decl. re Jane Doe 2”); Decl. Pertaining to
Jane Doe 3, ECF No. 56-3 (“Decl. re Jane Doe 3”); Decl. Pertaining to Jane Doe 4, ECF No. 56-
4 (“Decl. re Jane Doe 4”); Decl. Pertaining to Jane Doe 5, ECF No. 56-5 (“Decl. re Jane Doe 5”);
Decl. Pertaining to John Doe 1, ECF No. 56-6 (“Decl. re John Doe 1”).
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for Preliminary Injunction. Defendants shall be preliminarily enjoined from enforcing the
Accession and Retention Directives, corresponding with sections 1(b) and 2(a) of the
Presidential Memorandum, until further order of the Court or until this case is resolved. The
effect of the Court’s Order is to revert to the status quo with regard to accession and retention
that existed before the issuance of the Presidential Memorandum—that is, the retention and
accession policies established in a June 30, 2016 Directive-type Memorandum and later modified
by Secretary of Defense James Mattis on June 30, 2017.
The Court also GRANTS-IN-PART and DENIES-IN-PART Defendants’ Motion to
Dismiss. The Court has jurisdiction over and reaches the merits of Plaintiffs’ Fifth Amendment
claim as it pertains to the Accession and Retention Directives. Plaintiffs have also challenged
the Presidential Memorandum’s prohibition against the expenditure of military resources on sex
reassignment surgeries. Because no Plaintiff has established a likelihood of being impacted by
that prohibition, the Court lacks jurisdiction to adjudicate the propriety of this directive. Finally,
Plaintiffs have also claimed relief under a theory of estoppel. At this time, that claim will be
dismissed without prejudice because the Amended Complaint lacks allegations of the sort of
particularized representations, reliance, or government misconduct that could justify estoppel
against the government. Plaintiffs may file a further amended complaint with respect to
estoppel.
In an exercise of its discretion, the Court finds that holding oral argument in this action
would not be of assistance in rendering a decision. See LCvR 7(f).
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I. BACKGROUND
A. The Military’s Policy Toward Transgender Service
1. Military Policy Prior to 2014
Accession
Prior to 2014, Department of Defense Instruction (“DODI”) 6130.03 “contain[ed] a list of
disqualifying physical and mental conditions that preclude[d] applicants from joining the
military . . . .” Lamb Decl., Ex. B (Palm Center Report of the Transgender Service
Commission), at 7. Disqualifying conditions included “defects of the genitalia including but not
limited to change of sex,” and “[c]urrent or history of psychosexual conditions, including but not
limited to transsexualism, . . . transvestism, . . . and other paraphilias.” Id.; see also Defs.’ Mem.
at 4 (“For decades, [disqualifying] conditions [under DODI 6130.03] have included
‘transsexualism.’”).
DODI 6130.03 also requires that the “Secretaries of the Military Departments and
Commandant of the Coast Guard shall . . . [a]uthorize the waiver of the standards in individual
cases for applicable reasons and ensure uniform waiver determinations.” Lamb Decl., Ex. B, at
7. Service-specific implementing rules set forth the waiver process for each branch of the
military. For example, under the applicable Army regulations, “[e]xaminees initially reported as
medically unacceptable by reason of medical unfitness . . . may request a waiver of the medical
fitness standards in accordance with the basic administrative directive governing the personnel
action.” Army Reg. 40-501 (Standards of Medical Fitness), ¶ 1-6(b); see also Lamb Decl., Ex.
B, at 7. Although Defendants contend that transgender-related conditions were and remain
subject to waiver, see Defs.’ Mem. at 4, evidence in the record suggests otherwise. At least
under the pertinent regulations as they existed prior to 2014, “because some conditions related to
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transgender identity [were] grounds for discharge, and because recruiters [could not] waive a
condition upon enlistment that would be disqualifying for retention, transgender individuals
[could not] obtain medical waivers for entrance into the military.” Lamb Decl., Ex. B, at 8. A
March 2014 report was unable to find “any instances in which transgender-related conditions
have been waived for accession[,]” id., and Defendants have adduced no evidence of waivers
ever being granted for this purpose.
Retention
Pertinent regulations prior to 2014 also appear to have provided military commanders
with discretion to separate enlisted personnel for transgender-related conditions. In particular,
DODI 1332.14, which “controls administrative separations for enlisted persons,” provided that a
“service member may be separated for the convenience of the government and at the discretion
of a commander for ‘other designated physical or mental conditions,’ a category defined to
include ‘sexual gender and identity disorders.’” Lamb Decl., Ex. B, at 8. Furthermore, DODI
1332.38, “which contains rules for retiring or separating service members because of physical
disability” provided that “service members with conditions ‘not constituting a physical
disability’ . . . can be separated administratively from military service at a commander’s
discretion, without the opportunity to demonstrate medical fitness for duty or eligibility for
disability compensation.” Id. This category of conditions, under prior iterations of the
instruction, included “Sexual Gender and Identity Disorders, including Sexual Dysfunctions and
Paraphilias.” Id.
2. August 2014 Regulation and July 28, 2015 Memorandum
At least with respect to retention, changes to this regulatory scheme were first enacted in
August 2014, when “the Department of Defense issued a new regulation, DODI 1332.18,
6
Disability Evaluation System (DES).” Fanning Decl. ¶ 12. According to Former Secretary of the
Army Eric K. Fanning and Former Secretary of the Air Force Deborah Lee James, the new
regulation
eliminated a DoD-wide list of conditions that would disqualify
persons from retention in military service, including the categorical
ban on open service by transgender persons. This new regulation
instructed each branch of the Armed Forces to reassess whether
disqualification based on these conditions, including the ban on
service by transgender persons, was justified. As of August 2014,
there was no longer a DoD-wide position on whether transgender
persons should be disqualified for retention.
Id. (emphasis added); James Decl. ¶ 8.
Subsequently, 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, without the
personal approval of the Under Secretary of Defense for Personnel and Readiness.” Carson
Decl., Ex. A. The memorandum further ordered the Undersecretary of Defense for Personnel
and Readiness to “chair 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
Service members.” Id.
3. The Working Group and the RAND Report
The working group convened by the Undersecretary (“the Working Group”) consisted of
senior uniformed officers and senior civilian officers from each department of the military.
Carson Decl. ¶ 9. The Working Group sought to identify any possible issues related to open
military service of transgender individuals. Id. ¶ 22. It considered a broad range of information
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provided by senior military personnel, various types of experts, health insurance companies,
civilian employers, transgender service members themselves, and representatives from the
militaries of other nations who allow open service by transgender people. Id. ¶ 10. Finally, the
Working Group commissioned the RAND Corporation’s National Defense Research Institute to
conduct a study on the impact of permitting transgender service members to serve openly. Id. ¶
11. RAND is a nonprofit research institution that provides research and analysis to the Armed
Services. Id.
The RAND Corporation subsequently issued a 91-page report entitled “Assessing the
Implications of Allowing Transgender Personnel to Serve Openly.” Carson Decl., Ex. B
(“RAND Report”). The RAND Report 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.” Id. at xi–xii,
39–47, 69–70. The RAND Report also found that “[i]n no case” where foreign militaries have
allowed transgender individuals to serve “was there any evidence of an effect on the operational
effectiveness, operational readiness, or cohesion of the force.” Id. at xiii.
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. Not only did the group
conclude that allowing transgender people to serve would not significantly affect military
readiness or costs, it found that prohibiting transgender people from serving undermines military
effectiveness and readiness because it excludes qualified individuals on a basis that has no
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relevance to one’s fitness to serve, and creates unexpected vacancies requiring expensive and
time-consuming recruitment and training of replacements. 2
The Working Group communicated its conclusion to the Secretary of Defense, along with
detailed recommendations for policies and procedures for open transgender service.
4. June 30, 2016 Directive-Type Memorandum 16-005
On June 30, 2016, the Secretary of Defense Ash Carter issued a Directive-type
Memorandum (“DTM”) establishing a policy, assigning responsibilities, and prescribing
procedures for “the retention, accession, separation, in-service transition and medical coverage
for transgender personnel serving in the Military Services.” James Decl., Ex. B, at 1. The DTM
took effect immediately. Id. In the DTM, the Secretary of Defense stated his conclusion that
open service by transgender Americans was “consistent with military readiness and with strength
2
See generally Carson Decl. ¶¶ 26–27 (“The Working Group . . . concluded that banning
service by openly transgender persons would harm the military” and “unanimously resolved that
transgender personnel should be permitted to serve openly in the military.”); James Decl. ¶ 22
(“The Working Group did not find that permitting transgender soldiers to serve would impose
any significant costs or have a negative impact on military effectiveness or readiness,” but did
find “that barring transgender people from military service causes significant harms to the
military, including arbitrarily excluding potential qualified recruits based on a characteristic with
no relevance to their ability to serve.”); Fanning Decl. ¶¶ 25–26 (“At the conclusion of its
discussion and analysis, the members of the Working Group did not identify any basis for a
blanket prohibition on open military service of transgender people. Likewise, no one suggested
to me that a bar on military service by transgender persons was necessary for any reason,
including readiness or unit cohesion. The Working Group communicated its conclusions to the
Secretary of Defense, including that permitting transgender people to serve openly in the United
States military would not pose any significant costs or risks to readiness, unit cohesion, morale,
or good order and discipline.”); Mabus Decl. ¶ 21 (stating that “all members of the Working
Group . . . expressed their agreement that transgender people should be permitted to serve openly
in the United States Armed Forces” and that “President Trump’s stated rationales for reversing
the policy and banning military service by transgender people make no sense,” “have no basis in
fact and are refuted by the comprehensive analysis of relevant data and information that was
carefully, thoroughly, and deliberately conducted by the Working Group”); Wilmoth Decl. ¶ 23
(“The Working Group concluded that there were no barriers that should prevent transgender
service members from serving openly in the military.”).
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through diversity.” Id. at 2. Accordingly, the DTM stated that it was the policy of the
Department of Defense that “service in the United States military should be open to all who can
meet the rigorous standards for military service and readiness” and that, “consistent with the
policies and procedures set forth in [the DTM], transgender individuals shall be allowed to serve
in the military.” Id.
Retention
The DTM set forth procedures for the retention and accession of transgender military
service members. It stated that “[e]ffective immediately, no otherwise qualified Service member
may be involuntarily separated, discharged or denied reenlistment or continuation of service,
solely on the basis of their gender identity,” or on their “expressed intent to transition genders.”
James Decl., Ex. B, Attach. (Procedures), at 1. The DTM stated that “Transgender Service
members will be subject to the same standards as any other Service member of the same gender;
they may be separated, discharged, or denied reenlistment or continuation of service under
existing processes and basis, but not due solely to their gender identity or an expressed intent to
transition genders.” Id.
Accession
With respect to accession procedures, the DTM stated that by no later than July 1, 2017,
DODI 6130.03 would be updated to allow for the accession of (i) individuals with gender
dysphoria, (ii) individuals that have received medical treatment for gender transition, and (iii)
individuals that have undergone sex reassignment surgeries. Id. at 1–2. The policies and
procedures generally provided that these conditions would be disqualifying unless the acceding
service member was medically stable in their chosen gender for at least 18 months. Id. The
DTM also provided that, effective October 1, 2016, the Department of Defense would
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“implement a construct by which transgender Service members may transition gender while
serving.” Id. at 2.
Equal Opportunity
Finally, the DTM stated that it is “the Department’s position, consistent with the U.S.
Attorney General’s opinion, that discrimination based on gender identity is a form of sex
discrimination.” Id. at 2.
5. June 30, 2016 Remarks by Secretary of Defense Ash Carter
On June 30, 2016, then-Secretary of Defense Ash Carter announced from the Pentagon
briefing room that “we are ending the ban on transgender Americans in the United States
military.” Lamb Decl., Ex. F. He stated that “[e]ffective immediately, transgender Americans
may serve openly, and they can no longer be discharged or otherwise separated from the military
just for being transgender.” Id. Secretary Carter also announced that he had “directed that the
gender identity of an otherwise qualified individual will not bar them from military service, or
from any accession program.” Id. The Secretary stated that on June 30, 2017, after a year-long
implementation period, “the military services will begin acceding transgender individuals who
meet all standards—holding them to the same physical and mental fitness standards as everyone
else who wants to join the military.” Id.
Secretary Carter gave three reasons for the Department’s decision. First, he stated that
“the Defense Department and the military need to avail ourselves of all talent possible in order to
remain what we are now—the finest fighting force the world has ever known.” Id. He added
that “[w]e invest hundreds of thousands of dollars to train and develop each individual, and we
want to take the opportunity to retain people whose talent we’ve invested in and who have
proven themselves.” Id. Second, he stated that “the reality is that we have transgender service
11
members serving in uniform today,” and they and their commanders need “clearer and more
consistent guidance than is provided by current policies.” Id. And third, he stated that, as a
matter of principle, “Americans who want to serve and can meet our standards should be
afforded the opportunity to come to do so.” Id.
6. September 30, 2016 Publication of “Transgender Service in the U.S. Military:
An Implementation Handbook” and Military Department Policies
Consistent with the directives of Secretary Carter in his July 2015 memorandum and June
2016 memorandum and policy announcement, Acting Undersecretary of Defense for Personnel
and Readiness Peter Levine published an “implementation handbook” entitled “Transgender
Service in the U.S. Military.” Mabus Decl., Ex. F; see also James Decl., Ex. D. The document
was “the product of broad collaboration among the Services” and was intended to serve as a
“practical day-to-day guide” to assist Service members and commanders to understand and
implement the policy of open transgender military service. James Decl., ¶ 34. The handbook is
a lengthy, exhaustive document, providing an explanation of the basics of what it means to be
transgender and to undergo gender transition; guidance on how transgender service members can
request an in-service transition and communicate with their leadership about their transition
process; and guidance for commanders interacting with transgender service members. It also
includes extensive question-and-answer and hypothetical scenario sections, as well as a
“roadmap” for gender transition for military personnel.
Individual implementing memoranda were subsequently issued by the branches of the
Armed Forces. On November 4, 2016, the Secretary of the Navy issued SECNAV Instruction
1000.11, the stated purpose of which was to “establish Department of Navy . . . policy for the
accession and service of transgender Sailors and Marines, to include the process for transgender
Service Members to transition gender in-service.” Mabus Decl., Ex. D, at 1. The memorandum
12
stated that “transgender individual shall be allowed to serve openly in the [Department of the
Navy].” Id. at 2.
The Air Force issued a Policy Memorandum on October 6, 2016, which stated that “[i]t is
Air Force policy that service in the United States Air Force should be open to all who can meet
the rigorous standards for military service and readiness. Consistent with the policies set forth in
this memorandum, transgender individuals shall be allowed to serve in the Air Force.” James
Decl., Ex. C.
The Army issued Directive 2016-30 (Army Policy on Military Service of Transgender
Soldiers) on July 1, 2016. Fanning Decl., Ex. D. The Directive stated that
it is Army policy to allow open service by transgender Soldiers. The
Army is open to all who can meet the standards for military service
and remains committed to treating all Soldiers with dignity and
respect while ensuring good order and discipline. Transgender
Soldiers will be subject to the same standards as any other Soldier
of the same gender. An otherwise qualified Soldier shall not be
involuntarily separated, discharged, or denied reenlistment or
continuation of service solely on the basis of gender identity.
Id. at 1.
Army Directive 2016-35 was promulgated on October 7, 2016. Fanning Decl., Ex. E. It
stated that “The Army allows transgender Soldiers to serve openly.” Id. at 1.
7. June 30, 2017 Press Release by Secretary James Mattis
On June 30, 2017, Secretary of Defense James Mattis deferred acceding transgender
applicants into the military until January 1, 2018, stating that the “services will review their
accession plans and provide input on the impact to the readiness and lethality of our forces.”
Lamb Decl., Ex. C.
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8. July 26, 2017 Statement by President Donald J. Trump
On July 26, 2017, President Donald J. Trump issued a statement via Twitter, in which he
announced that 3
3
The full text reads: “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.” Donald J. Trump
(@realDonaldTrump), Twitter (July 26, 2017, 5:55 AM), https://twitter.com/realDonaldTrump/
status/890193981585444864; Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017,
6:04 AM), https://twitter.com/realDonaldTrump/status/890196164313833472; Donald J. Trump
(@realDonaldTrump), Twitter (July 26, 2017, 6:08 AM), https://twitter.com/realDonaldTrump/
status/890197095151546369.
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9. August 25, 2017 Presidential Memorandum
On August 25, 2017, President Trump issued a memorandum entitled “Presidential
Memorandum for the Secretary of Defense and the Secretary of Homeland Security.” Lamb
Decl., Ex. A (the “Presidential Memorandum”). The memorandum begins by stating that until
“June 2016, the Department of Defense (DoD) and the Department of Homeland Security (DHS)
(collectively, the Departments) generally prohibited openly transgender individuals from
accession into the United States military and authorized the discharge of such individuals.”
Presidential Memorandum § 1(a). According to the memorandum, “[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.” Id. The President stated that “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.” Id.
The memorandum has two operative sections, one general, and the other more specific.
Section 1(b) directs “the Secretary of Defense, and the Secretary of Homeland Security with
respect to the U.S. Coast Guard, to return to the longstanding policy and practice on military
service by transgender individuals that was in place prior to June 2016 until such time as a
sufficient basis exists upon which to conclude that terminating that policy and practice would not
have the negative effects discussed above.” Id. § 1(b). As already stated, the memorandum
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defines the pre-June 2016 policy as one under which the military “generally prohibited openly
transgender individuals from accession into the United States military and authorized the
discharge of such individuals.” Id. § 1(a). The directive set forth in section 1(b) takes effect on
March 23, 2018. Id. § 3. The memorandum provides that the “Secretary of Defense, after
consulting with the Secretary of Homeland Security, may advise [the President] at any time, in
writing, that a change to this policy is warranted.” Id. § 1(b).
Section 2 contains two specific directives to the Secretary of Defense and the Secretary of
Homeland Security. First, section 2(a) directs the Secretaries to “maintain the currently effective
policy regarding accession of transgender individuals into military service beyond January 1,
2018, until such time as the Secretary of Defense, after consulting with the Secretary of
Homeland Security, provides a recommendation to the contrary that [the President finds]
convincing . . . .” Id. § 2(a). This section takes effect on January 1, 2018. Id.
Second, section 2(b) directs the Secretaries to “halt all use of DoD or DHS resources to
fund sex reassignment surgical procedures for military personnel, except to the extent necessary
to protect the health of an individual who has already begun a course of treatment to reassign his
or her sex.” Id. § 2(b). This section, like section 1(b), takes effect on March 23, 2018. Id § 3.
By February 21, 2018, the Secretaries must submit a plan to the President “for
implementing both the general policy set forth in section 1(b) of this memorandum and the
specific directives set forth in section 2 of this memorandum.” Id. § 3. This implementation
plan must “determine how to address transgender individuals currently serving in the United
States military.” Id. Until that determination is made—and it must be made as part of the
implementation plan, which must be submitted by February 21, 2018—“no action may be taken
against such individuals under the policy set forth in section 1(b) of this memorandum.” Id.
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That is, only after February 21, 2018, may the Secretaries take actions toward reverting to the
pre-June 2016 policy, which by the terms of the memorandum is a policy under which the
military “generally prohibited openly transgender individuals from accession into the United
States military and authorized the discharge of such individuals.” Id. § 1(a).
Retention Directive
In sum, by March 23, 2018, the Secretaries are required by the plain text of the
President’s directive to revert to a policy under which the military “authorized the discharge of
[transgender] individuals.” Id. §§ 1(a), 1(b), 3. The protections of the memorandum with
respect to discharge and other adverse action expire on February 21, 2018. Id. § 3.
Accession Directive
With respect to accession, the memorandum indefinitely delays the implementation of the
accession policy of the June 2016 DTM, which was previously set for implementation on
January 1, 2018, and by March 23, 2018, requires the Secretaries to revert to a policy by which
the military “generally prohibit[s] openly transgender individuals from accession . . . .” Id. §§
1(a), 1(b), 2(a), 3.
10. August 29, 2017 Statement by Secretary Mattis
On August 29, 2017, Secretary Mattis issued a statement concerning the Presidential
Memorandum. Lamb Decl., Ex. D. He wrote that “[t]he [Department of Defense] will carry out
the president’s policy direction, in consultation with the Department of Homeland Security,” and
that “[a]s directed,” the Department of Defense will “develop a study and implementation plan,
which will contain the steps that will promote military readiness, lethality, and unit cohesion,
with due regard to budgetary constraints and consistent with applicable law.” Id. The plan,
Secretary Mattis wrote, “will address accessions of transgender individuals and transgender
17
individuals currently serving in the United States military.” Id. Secretary Mattis stated that he
would “establish a panel of experts serving within the Departments of Defense and Homeland
Security to provide advice and recommendations on the implementation of the president’s
direction.” Id. After the “panel reports its recommendations and following . . . consultation with
the secretary of Homeland Security,” Secretary Mattis “will provide [his] advice to the president
concerning implementation of his policy direction.” Id. In the interim, “current policy with
respect to currently serving members will remain in place.” Id.
11. September 14, 2017 Interim Guidance
On September 14, 2017, Secretary Mattis issued interim guidance that took “effect
immediately and will remain in effect until [he] promulgate[s] DoD’s final policy in this matter.”
Defs.’ Mem., ECF No. 45, Ex. 1 (“Interim Guidance”). The Interim Guidance states that “[n]ot
later than February 21, 2018, [Secretary Mattis] will present the President with a plan to
implement the policy and directives in the Presidential Memorandum.” Id. at 1. The
“implementation plan will establish the policy, standards and procedures for transgender
individuals serving in the military.” Id.
Accession
With respect to accession, the Interim Guidance provides that the procedures previously
set forth in a 2010 policy instruction, “which generally prohibit the accession of transgender
individuals into the Military Services, remain in effect . . . .” Id. at 2.
Medical Care and Treatment
With respect to medical care and treatment, the Interim Guidance provides that “[s]ervice
members who receive a gender dysphoria diagnosis from a military medical provider will be
provided treatment for the diagnosed medical condition,” but that “no new sex reassignment
18
surgical procedures for military personnel will be permitted after March 22, 2018, 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.” Id.
Retention
With respect to the separation or retention of transgender service members, the Interim
Guidance provides that “[a]n otherwise qualified transgender Service member whose term of
service expires while this Interim Guidance remains in effect, may, at the Service member’s
request, be re-enlisted in service under existing procedures.” Id. (emphasis in original).
Finally, the Interim Guidance states that “[a]s directed by the [Presidential]
Memorandum, no action may be taken to involuntarily separate or discharge an otherwise
qualified Service member solely on the basis of a gender dysphoria diagnosis or transgender
status.” Id.
B. The Plaintiffs
1. Jane Doe 1
Plaintiff Jane Doe 1 has served in the Coast Guard since 2003. Looney Decl., Ex. A
(“Redacted Jane Doe 1 Decl.”), ¶ 1. Jane Doe 1 is transgender. The Coast Guard has made a
substantial investment in educating and training Jane Doe 1, and she has done her “best to be
hardworking, faithful, and loyal to the Coast Guard.” Id. ¶ 11. She is married and is the primary
wage earner for her family. She and her spouse receive health insurance coverage, called
TRICARE, based on her enlisted status. Id. ¶ 12. When she came to the realization of her
transgender identity, Jane Doe 1, with her spouse’s support, sought professional help. Id. ¶ 14.
She paid for this help herself, fearing that she may be separated from the Coast Guard if she went
through military health channels. Id. She was diagnosed with gender dysphoria and has
19
received medical treatment for this condition. Id. ¶ 15. However, because TRICARE does not
provide comprehensive gender transition healthcare, following the issuance of the June 2016
DTM, she was required to obtain waivers from the Defense Health Agency to obtain treatment.
Because this process often led to delays, Jane Doe 1 has continued to pay for her care herself,
including surgical care. Id. ¶ 21.
Following the President’s statement regarding transgender service members, issued via
Twitter, Commandant of the Coast Guard Paul F. Zukunft stated, with respect to transgender
service members, that “[w]e have made an investment in you and you have made an investment
in the Coast Guard and I will not break faith.” Id. ¶ 23.
According to Jane Doe 1, the Presidential Memorandum has disrupted her medical care,
and has had “serious consequences for [her] financial future.” Id. ¶¶ 29–30. For one, separation
from the Coast Guard would mean loss of substantial pension benefits, and health insurance for
her and her family. Id. ¶¶ 30–31. Separation also means the loss of “a central part of [her]
identity.” Id. ¶ 36. In her own words: “As much as the Coast Guard has invested in me, I have
invested in the Coast Guard. I love serving, . . . I had expected to continue serving as a Coast
Guard officer for many years.” Id.
2. Jane Doe 2
Jane Doe 2 joined the Army National Guard in 2003, when she was 17. Looney Decl.,
Ex. B (“Redacted Jane Doe 2 Decl.”), ¶ 3. She met her wife while serving, who soon became
pregnant. Jane Doe 2 then “made the decision to go on active duty with the U.S. Army so [she]
could obtain health care benefits to support [her] growing family.” Id. ¶ 5. She now has three
children. Id. While on active duty, she served in South Korea and was deployed to Kandahar in
Afghanistan. Id. ¶ 7.
20
During active duty, Jane Doe 2 came out to her wife as transgender. Id. ¶ 9. She felt
more connected to her wife and she stopped drinking. Id. After the Department of Defense
promulgated new regulations in late 2015, she made a public post on Facebook stating that she
was transgender. Redacted Jane Doe 2 Decl. ¶ 10. Her company commander was very
supportive. Id. ¶ 11. She began to see an Army therapist, and following the June 2016 DTM,
she obtained a formal gender dysphoria diagnosis which permitted her to receive transition
treatment from military healthcare providers, and she began receiving hormone treatment. Id. ¶
13.
Following the President’s statement and the Presidential Memorandum, Jane Doe 2
believes that she has received an unfavorable work detail to keep her “separated from the rest of
[her] unit because [she is] transgender and because of the President’s ban, as [she] never had any
problems with this kind of treatment in [her] old unit and [does] not know of any other reason
[why] she would be treated this way.” Id. ¶ 15. She also fears the loss of retirement benefits,
which accrue following 20 years of service, and access to “health care services for [her] family
on base.” Id. ¶ 16. She has already accrued 12 to 13 years of service toward these benefits. Id.
¶¶ 16, 18. The directives of the Presidential Memorandum have “left [her] feeling excluded, and
it hurts [her] that people like [her] are being singled out and told that [they] aren’t good enough
to serve our country based on a characteristic that has no relevance at all to our abilities or fitness
to serve.” Id. ¶ 19.
Jane Doe 2 “loves this country and [has] served it faithfully and well.” Id. For her, to
“be told that [she is] no longer worthy to serve is a terrible blow. It affects how [she sees
herself] . . . .” Id. “All [she wants] is to be allowed to serve [her] country and to be evaluated
based on [her] job performance rather than on [her] status as a transgender person.” Id. ¶ 20.
21
3. Jane Doe 3
Jane Doe 3 serves in the Army. After completing her basic training, she was deployed to
Afghanistan for six months. Looney Decl., Ex. C (“Redacted Jane Doe 3 Decl.”), ¶ 4. She is
currently scheduled to deploy again to Iraq, where she will be going as a team leader, with
soldiers reporting to her. Id. ¶ 6.
Jane Doe 3 has received a gender dysphoria diagnosis from an Army therapist. Id. ¶ 7.
Although she has developed a transition plan in coordination with medical professionals, she has
not begun any of the treatment steps, which include surgery. Id. ¶ 9.
Before the President’s statement regarding transgender individuals, Jane Doe 3 “had not
come out to anyone in [her] chain of command.” Id. ¶ 10. However, after the statement, she had
a conversation with her company commander, believing that she would receive support based on
the June 2016 DTM. Id. She told her company commander that she was worried that she would
not be deployed, and that she was committed to being deployed. Id.
The commander was not supportive—expressing shock and surprise—but she has
received support from her squad leader, the platoon sergeant, and another friend in her unit. Id. ¶
11. Since that conversation, she has continued to prepare for deployment, with the
understanding that she will not be able to begin her treatment until she returns. Id. ¶ 12. In her
words, she “will not put [her] personal needs ahead of the needs of the mission and [her] fellow
soldiers.” Id.
Jane Doe 3 has “not told anyone else at [her] rank or below that [she] is transgender.” Id.
¶ 15. As a result, she “was able to hear an unfiltered reaction to the President’s announcement
right after he tweeted it.” Id. “Some made ugly remarks about transgender service members,
while others remarked [that] people who kill transgender people should not be punished.” Id.
22
According to Jane Doe 3, after “the tweets, people seemed emboldened to express hostility to
transgender people.” Id. ¶ 15.
4. Jane Doe 4
Jane Doe 4 serves in the Army National Guard, but was previously on active duty with
the Army. After basic training, she served in South Korea, and subsequently served a tour in
Iraq after the 9/11 terrorist attacks. Looney Decl., Ex. D (“Redacted Jane Doe 4 Decl.”), ¶¶ 5–6.
After she returned from Iraq, Jane Doe 4 enlisted in the Army National Guard, and then joined
the Active Guard Reserve. Id. ¶ 7. In that capacity, she has been employed as a specialist by the
Department of Defense. Id. ¶ 10.
Following the June 2016 DTM, Jane Doe 4 decided to come out as transgender to her
chain of command. Id. ¶ 13. She first spoke to the senior non-commissioned officer of her unit,
who said she supported her decision “100%.” She then spoke with her commanding officer, a
Major, “who acknowledged that he was not very knowledgeable about the experiences of
transgender people, but told [her] that he and the rest of [her] unit would support and work with
[her] through the process . . . .” Id. According to Jane Doe 4, the “change in policy allowing
transgender soldiers to serve openly . . . changed [her] life in the military.” Id. ¶ 14. Her “fellow
soldiers in [her] unit and [her] senior leaders . . . told [her] that they . . . noticed how much
happier [she was].” Id.
The President’s statement regarding transgender service members has been “devastating”
to her, making her feel “ashamed” and “deeply saddened that he was ordering the Army, which
[she] had been a part of for so long and which [she] loved so much, to stop treating [her] with
respect.” Id. ¶ 15. She “went to work each day wondering whether [she] would be discharged,
23
not because of any problem with [her] job performance or [her] commitment to serve this
country, but solely because of [her] gender identity.” Id.
Jane Doe 4 reenlisted effective August 24, 2017, and has extended her commitment to the
Army until February 2020. See Defs.’ Mem. at 11 (citing Sealed Decl. relating to Jane Doe 4,
ECF No. 56-4).
5. Jane Doe 5
“Jane Doe 5 has been an active duty member of the United States Air Force for nearly
twenty years, serving multiple tours of duty abroad, including two in Iraq.” Am. Compl., ECF
No. 9, ¶ 30. After June 2016, she notified her superiors that she is transgender. Id. ¶ 31. Her
“livelihood depends on her military service[,]” and “[s]eparation from the military w[ould] have
devastating financial and emotional consequences for her.” Id. ¶ 32.
6. John Doe 1
John Doe 1 serves in the Army. His family has “a proud history of serving in the Armed
Forces.” Looney Decl., Ex. E (“Redacted John Doe 1 Decl.”), ¶ 3. His great grandfather served
in Europe in World War II. Id. His father served in the Air Force and was awarded the Bronze
Star for valor. His uncle was a United States Marine who was wounded and paralyzed by an
improvised explosive during Operation Desert Storm. His aunt served in the military as well.
Id. John Doe 1 has idolized military service since childhood. Id.
John Doe 1 entered college on a full academic scholarship. Id. ¶ 4. After graduating
magna cum laude, he entered the Army Reserve Officers’ Training Corps (“ROTC”) program
while pursuing a master’s degree. Id. ¶ 5. His fellow cadets in the program knew that he was
transgender and were supportive, and his superiors were generally supportive as well. Id. ¶ 6.
He was ranked third in his ROTC class, and was allowed to wear a male dress uniform as part of
24
his duties for the ROTC Color Guard. Id. ¶ 6. While serving in the ROTC program, John Doe 1
also joined the National Guard. Id. ¶ 7. He met his future wife, with whom he has a two-year-
old son. Id. ¶ 9. He graduated in the top 20% of his ROTC class. Id. ¶ 12.
Following the June 2016 DTM, John Doe 1 began training at the Basic Officer
Leadership Course (“BOLC”), at which time he came out to his platoon instructors, who were
very supportive and treated him as male despite his official gender designation. Id. ¶¶ 14–15.
After the BOLC, John Doe 1 was stationed as the executive officer for his unit, performing
administrative tasks on behalf of and reporting directly to his commanding officer. Id. ¶ 16. He
serves as both the maintenance and supply officer for his unit. Id. He is also in charge of
preparing his unit for deployment. Id. Until recently, John Doe 1 was preparing to deploy to the
Middle East with his unit in mid-2018. Id; Am. Compl. ¶ 33.
During his first meeting with his commanding officer, John Doe 1 came out as
transgender. Redacted John Doe 1 Decl. ¶ 17. He stressed that his “first priority was being a
solider, and that in crafting an approved plan for medical treatment under the new policy, it was
extremely important to [him] to make sure that [his] plan would not interfere with [his] duties.”
Id. Both his company and battalion commanders have been very supportive “beyond [his]
greatest expectations.” Id.
John Doe 1 has received an approved treatment plan, which includes a planned surgery.
The surgery was “encouraged and supported by [his] command team at every level up to and
including [his] Brigade Commander.” Id. ¶ 18. His official gender designation has been
changed to male. Id. ¶ 19. John Doe 1 is scheduled for transition-related surgery on January 4,
2018. Defs.’ Mem. at 11 (citing Sealed Declaration relating to John Doe 1).
25
John Doe 1 has been “devastated by the President’s cancellation of the policy [he] had
relied upon to notify command of the fact that [he is] transgender and to take steps forward in
treatment for gender transition.” Redacted John Doe 1 Decl. ¶ 26. If he is discharged, he fears
serious financial and medical consequences for him and his family. Id. ¶¶ 27–28.
7. Regan Kibby
Plaintiff Regan Kibby is a 19-year-old midshipman at the United States Naval Academy.
Kibby Decl. ¶ 1. Kibby’s father served in the Navy, and Kibby has wanted to follow in his
footsteps from an early age. Id. ¶¶ 2–3. He spent his summers in high school attending seminars
at military academies. Id. ¶ 5. Despite being accepted with full scholarships to other schools,
Kibby immediately decided to enroll at the Naval Academy when he was accepted. Id. ¶¶ 7–8.
He has now successfully completed his first two years of school and hopes to become a Surface
Warfare Officer in the Navy after graduation. Id. ¶ 9.
Kibby is transgender. Id. ¶ 1. After Secretary of Defense Carter announced that
transgender people could not be separated on the basis of their gender identity during his first
year at the Naval Academy, Kibby began to come out. Id. ¶¶ 13–14. Kibby’s Company Officer
was very accepting and supportive, and put Kibby in contact with the Brigade Medical Officer to
begin the process of preparing a medical treatment plan. Id. ¶¶ 16–19. The first step was to
receive an official diagnosis, which Kibby did. Id. ¶ 20.
Working with the Brigade Medical Officer, Kibby determined that in order to comply
with the 18 month stability requirement of the recently announced accession policy for
transgender service members, he would have to take a year off from the Naval Academy to
ensure that he had completed his transition plan prior to graduating and acceding. Id. ¶ 24. His
Commandant and the Superintendent officially approved Kibby’s medical transition plan and his
26
request for a year-long medical leave of absence. Id. ¶ 26. Kibby is now on medical leave
undergoing his medical transition and plans to return to the Academy in the fall of 2018. Id. ¶
28.
When Plaintiff Kibby saw the President’s Tweet he “was devastated” and felt that “[t]he
entire future [he] had been planning for [himself] was crumbling around [him].” Id. ¶ 31. When
Kibby came out, he was relying on the recent pronouncements by the Secretary of Defense and
the Navy that he would be able to enlist despite being transgender. Id. ¶ 33. He is now living in
a state of uncertainty and great distress because if the Presidential Memorandum is allowed to
stand, he will never be able to serve in the Armed Forces—something he has strived for since he
was a child. Id. ¶¶ 33–34.
8. Dylan Kohere
Plaintiff Dylan Kohere is an 18-year-old student and member of the Army ROTC at the
University of New Haven. Kohere Decl. ¶ 1. Both of Dylan’s grandfathers served in the
military, and Dylan has wanted to serve since he was a young child. Id. ¶ 2. He entered the
ROTC program to obtain the career opportunities that come with being a commissioned officer.
Id. ¶ 2.
Dylan is transgender, and has come out as such to his Sergeant. Id. ¶ 9. He has started to
work with medical professionals to begin a treatment plan for his transition. Id. ¶ 10. When the
President declared on Twitter that transgender service members would no longer be allowed to
serve in the military in any capacity, Dylan felt that the plan he had made for his life had been
“thrown out the window.” Id. ¶¶ 12–13. He had come out as transgender in the ROTC in
reliance on the military’s announcement that transgender people could serve openly. Id. ¶¶ 11,
15. He feels disheartened that if the Presidential Memorandum remains in force, he will “be
27
denied an opportunity to serve based on something that has nothing to do with [his] ability or
performance.” Id. ¶ 15. If he is prevented from serving or completing ROTC because of his
transgender status, he will lose educational and career opportunities, as well as the opportunity to
apply for an ROTC scholarship. Id. ¶ 18. 4
II. LEGAL STANDARDS
A. Motion to Dismiss for Lack of Jurisdiction
When a motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(1) is
filed, a federal court is required to ensure that it has “the ‘statutory or constitutional power to
adjudicate [the] case[.]’” Morrow v. United States, 723 F. Supp. 2d 71, 77 (D.D.C. 2010)
(emphasis omitted) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)).
“Federal courts are courts of limited jurisdiction” and can adjudicate only those cases or
controversies entrusted to them by the Constitution or an Act of Congress. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In determining whether there is
jurisdiction on a motion to dismiss, the Court may “consider the complaint supplemented by
undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d
193, 198 (D.C. Cir. 2003) (citations omitted). “Although a court must accept as true all factual
allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule
12(b)(1),” the factual allegations in the complaint “will bear closer scrutiny in resolving a
12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v.
Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (citations omitted).
4
Plaintiffs’ Motion for Leave to File Declarations Under Seal, ECF No. 51, is
GRANTED for the reasons set forth in the Court’s prior Order regarding sealing.
28
B. Motion to Dismiss for Failure to State a Claim
Under Rule 12(b)(6), a party may move to dismiss a pleading on the grounds that it
“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A]
complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007)). Rather, a complaint, or counterclaim, must contain sufficient factual
allegations that, if accepted as true, “state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
C. Motion for Preliminary Injunction
Preliminary injunctive relief is “an extraordinary remedy that may only be awarded upon
a clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388,
392 (D.C. Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)).
A plaintiff seeking a preliminary injunction “must establish [1] that he is likely to succeed on the
merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that
the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”
Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley, 644 F.3d at 392
(quoting Winter, 555 U.S. at 20) (alteration in original; quotation marks omitted)). When
seeking such relief, “‘the movant has the burden to show that all four factors, taken together,
weigh in favor of the injunction.’” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014)
(quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). “The
four factors have typically been evaluated on a ‘sliding scale.’” Davis, 571 F.3d at 1291 (citation
29
omitted). Under this sliding-scale framework, “[i]f the movant makes an unusually strong
showing on one of the factors, then it does not necessarily have to make as strong a showing on
another factor.” Id. at 1291–92. 5
III. DISCUSSION
The Court’s Opinion will be divided into three parts. The first part of the Opinion
assesses the Court’s jurisdiction and addresses Defendants’ arguments that Plaintiffs lack
standing and that their claims are not ripe. The second part of the Opinion dismisses Plaintiffs’
estoppel cause of action for failure to state a claim. Finally, in the third part of the Opinion, the
Court addresses Plaintiffs’ motion for preliminary injunction.
A. Subject Matter Jurisdiction
Article III of the Constitution limits the jurisdiction of this Court to the adjudication of
“Cases” and “Controversies.” U.S. Const., Art. III, § 2. “In an attempt to give meaning to
Article III’s case-or-controversy requirement, the courts have developed a series of principles
termed ‘justiciability doctrines,’ among which are standing [and] ripeness.” Nat’l Treasury
Emps. Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (citing Allen v. Wright, 468
U.S. 737, 750 (1984)). Defendants challenge the Court’s jurisdiction on the basis of standing
and ripeness.
5
The Court notes that it is not clear whether this circuit’s sliding-scale approach to
assessing the four preliminary injunction factors survives the Supreme Court’s decision in
Winter. See Save Jobs USA v. U.S. Dep’t of Homeland Sec., 105 F. Supp. 3d 108, 112 (D.D.C.
2015). Several judges on the United States Court of Appeals for the District of Columbia Circuit
(“D.C. Circuit”) have “read Winter at least to suggest if not to hold ‘that a likelihood of success
is an independent, free-standing requirement for a preliminary injunction.’” Sherley, 644 F.3d at
393 (quoting Davis, 571 F.3d at 1296 (concurring opinion)). However, the D.C. Circuit has yet
to hold definitively that Winter has displaced the sliding-scale analysis. See id.; see also Save
Jobs USA, 105 F. Supp. 3d at 112. In any event, this Court need not resolve the viability of the
sliding-scale approach today, as it finds that each of the preliminary injunctive factors favors
awarding relief on the pending motion.
30
Plaintiffs bear the burden of establishing jurisdiction, and each “element must be
supported in the same way as any other matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at the successive stages of the litigation.”
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014) (“SBA List”) (internal quotation
marks omitted). On a motion for preliminary injunction, the plaintiff “must show a substantial
likelihood of standing[,]” while on a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1), the plaintiff must merely “state a plausible claim that they have suffered an
injury in fact fairly traceable to the actions of the defendant that is likely to be redressed by a
favorable decision on the merits.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913
(D.C. Cir. 2015) (internal quotation marks and alterations omitted). Although Defendants have
pressed their jurisdictional arguments in a motion to dismiss, the Court also has an independent
duty to assess its jurisdiction for purposes of Plaintiffs’ pending motion for preliminary
injunction. Consequently, the Court proceeds by applying the higher burden necessitated by a
motion for preliminary injunction.
For the reasons stated below, the Court concludes that it has jurisdiction to adjudicate the
propriety of the directives of the Presidential Memorandum with respect to the accession and
retention of transgender individuals for military service, which corresponds with sections 1(b)
and 2(a) of the Presidential Memorandum (i.e., the Accession and Retention Directives). The
Court does not have jurisdiction over section 2(b), which prohibits the use of military resources
to fund sex reassignment surgical procedures, because no Plaintiff has demonstrated that they are
substantially likely to be impacted by this directive (the “Sex Reassignment Surgery Directive”).
1. Standing
Standing is an element of the Court’s subject-matter jurisdiction, and requires, in essence,
31
that a plaintiff have “a personal stake in the outcome of the controversy . . . .” Warth v. Seldin,
422 U.S. 490, 498 (1975). A plaintiff cannot be a mere bystander or interested third-party, or a
self-appointed representative of the public interest; he or she must show that the defendant’s
conduct has affected them in a “personal and individual way.” Lujan v. Defs. of Wildlife, 504
U.S. 555, 561 (1992). “The law of Article III standing, which is built on separation-of-powers
principles, serves to prevent the judicial process from being used to usurp the powers of the
political branches.” SBA List, 134 S. Ct. at 2341–42 (internal quotation marks omitted).
Consequently, the standing analysis is “especially rigorous when reaching the merits of the
dispute would force [the court] to decide whether an action taken by one of the other two
branches of the Federal Government was unconstitutional.” Clapper v. Amnesty Int’l USA, 568
U.S. 398, 408 (2013).
The familiar requirements of Article III standing are:
(1) that the plaintiff have suffered an “injury in fact”—an invasion
of a judicially cognizable interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) that there be a causal connection between the injury
and the conduct complained of—the injury must be fairly traceable
to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court; and (3)
that it be likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.
Bennett v. Spear, 520 U.S. 154, 167 (1997) (citing Lujan, 504 U.S. at 560–61); see also Spokeo,
Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
The parties disagree only over the first element of standing: injury in fact. For the
reasons stated below, Plaintiffs have carried their burden of demonstrating a substantial
likelihood of standing on the basis of at least two distinct injuries. First, Plaintiffs are subject to
a competitive barrier that violates equal protection. Second, they are subject to a substantial risk
32
of being denied accession, or being discharged from the military, due to their transgender status.
Furthermore, Plaintiffs have demonstrated satisfactorily that both of these injuries are caused by
the directives of the Presidential Memorandum, and that they are redressable by this Court.
a. The Import of the Presidential Memorandum
Before turning to the legal basis of the two injuries that support Plaintiffs’ standing, the
Court first addresses the crux of Defendants’ arguments regarding standing, and indeed, this
Court’s subject-matter jurisdiction more generally.
According to Defendants, the Court lacks subject-matter jurisdiction with respect to the
directives of the Presidential Memorandum because Plaintiffs have merely “brought a
constitutional challenge to the President’s policy directive to conduct further study before the
military changes its longstanding policies regarding service by transgender individuals.” Defs.’
Mem. at 15. According to Defendants, Plaintiffs “challenge a notional policy regarding military
service by transgender individuals, but as they concede, that policy is currently being studied and
has not been implemented or applied to anyone, let alone Plaintiffs.” Defs.’ Reply at 1.
Defendants also highlight the protections afforded by the Interim Guidance: “Secretary of
Defense Mattis has put in place Interim Guidance that, by its terms, maintains the status quo for
both current service members and those who seek to accede into the military.” Id. In
Defendants’ view, the Court is being asked “to prejudge the constitutionality of a future
Government policy regarding military service by transgender individuals and issue the
extraordinary relief of a worldwide preliminary injunction.” Defs.’ Mem. at 1. They further
contend that “it is unclear whether those currently serving members will be affected by the future
policy regarding service by transgender individuals once it is finalized and implemented.” Id. at
2.
33
According to Defendants, the President has only “directed the Secretary of Defense to
determine how to address transgender individuals currently serving in the military and that no
action be taken against such individuals until after a policy review is completed.” Id. at 1
(emphasis in original). In their words: “Secretary Mattis’s Memorandum is unambiguous: The
Interim Guidance is the operative policy and will remain so until he promulgates DoD’s final
policy regarding service by transgender individuals.” Defs.’ Reply at 3. “The Interim Guidance
is equally clear: Transgender service members, including the service member Plaintiffs, continue
to serve fully in the military.” Id. With respect to accession, Defendants contend that the
operative policy is not a “ban” because transgender individuals are “subject to the normal waiver
process.” Id. (internal quotation marks omitted). In sum, Defendants argue that Plaintiffs
disregard the actual policy regarding transgender service members, and instead rely “on a
hypothetical future policy on transgender military service.” Id.
Ultimately, all of these contentions can be summarized into a few overarching points: the
Presidential Memorandum merely commissioned an additional policy review; that review is
underway; nothing is set in stone, and what policy may come about is unknown; and regardless,
Plaintiffs are protected by the Interim Guidance. And while accession by transgender individuals
is not permitted, they may obtain waivers. In the Court’s view, the government’s jurisdictional
arguments are a red herring.
The President controls the United States military. The directives of the Presidential
Memorandum, to the extent they are definitive, are the operative policy toward military service
by transgender service members. The Court must and shall assume that the directives of the
Presidential Memorandum will be faithfully executed. See Nat’l Mining Ass’n v. U.S. Army
Corps of Engineers, 145 F.3d 1399, 1408 (D.C. Cir. 1998) (assessing “faithful” application of
34
agency rule). Consequently, the Interim Guidance must be read as implementing the directives
of the Presidential Memorandum, and any protections afforded by the Interim Guidance are
necessarily limited to the extent they conflict with the express directives of the memorandum.
Finally, to the extent there is ambiguity about the meaning of the Presidential Memorandum, the
best guidance is the President’s own statements regarding his intentions with respect to service
by transgender individuals. To recount: On July 26, 2017, the President issued a statement
announcing that the “United States government will not accept or allow transgender individuals
to serve in any capacity in the U.S. military.” On August 25, 2017, the President issued the
Presidential Memorandum. There, the President states that until “June 2016, the [military]
generally prohibited openly transgender individuals from accession into the United States
military and authorized the discharge of such individuals.” Finding subsequent changes to that
policy unjustified, in section 1(b), the President directs the military “to return to the longstanding
policy and practice on military service by transgender individuals that was in place prior to June
2016 . . . .” Accordingly, the military has been directed by section 1(b) to return to a policy
under which: (i) transgender individuals are generally prohibited from accession; and (ii) the
military is authorized to discharge individuals who are transgender.
This change in policy must occur by March 23, 2018, except that the prohibition on
accession is extended indefinitely as of January 1, 2018. Likewise, as of March 23, 2018, the
military is expressly prohibited from funding sex reassignment surgeries, except as necessary to
protect the health of an already transitioning individual. The Memorandum provides that “[a]s
part of the implementation plan, the Secretary of Defense . . . shall determine how to address
transgender individuals currently serving in the United States military.” “Until the Secretary has
made that determination, no action may be taken against such individuals under the policy set
35
forth in section 1(b)”—that is, the directive that requires a return to the policy under which
transgender individuals could not accede, and could be discharged. As these two clauses make
clear, transgender individuals are immunized only until the Secretary of Defense makes the
“determination”; the “determination” must be made “as part of the implementation plan”; and the
“implementation plan” must be submitted to the President by February 21, 2018. This means
that the “determination” must be made by February 21, 2018, and because the protections
afforded to transgender individuals last only until the “determination” is made, those protections
necessarily lapse by February 21, 2018, unless the “determination” is made earlier.
Consequently, as of January 1, 2018, transgender individuals are prohibited from acceding to the
military “until such time [that the President receives] a recommendation to the contrary that [he]
find[s] convincing;” and as of March 23, 2018, the military must authorize the discharge of
transgender service members. The protections afforded to these individuals by the terms of the
Presidential Memorandum lapse, at the latest, by February 21, 2018.
Nothing in the August 2017 Statement by Secretary Mattis, or the Interim Guidance, can
or does alter these realities. The Statement provides that Secretary Mattis will establish a panel
of experts “to provide advice and recommendations on the implementation of the president’s
direction.” After the “panel reports its recommendations and following . . . consultation with the
secretary of Homeland Security,” Secretary Mattis will “provide [his] advice to the president
concerning implementation of his policy direction.” Put differently, the military is studying how
to implement the directives of the Presidential Memorandum. Such a policy review and
implementation plan are likely necessitated by the fact that—as borne out by the RAND Report
and the declarations submitted by the Pseudonym Plaintiffs—transgender service members
occupy a variety of crucial positions throughout the military, including active duty postings in
36
war zones. Presumably, the removal and replacement of such individuals during a time of war
cannot occur overnight. Accordingly, Defendants are correct that policy decisions are still being
made. But the decisions that must be made are how to best implement a policy under which
transgender accession is prohibited, and discharge of transgender service members is authorized.
Unless the directives of the Presidential Memorandum are altered—and there is no evidence that
they will be—military policy toward transgender individuals must fit within these confines.
Similarly, the Interim Guidance provides that “[n]ot later than February 21, 2018,
[Secretary Mattis] will present the President with a plan to implement the policy and directives in
the Presidential Memorandum[,]” and that the “implementation plan will establish the policy,
standards and procedures for transgender individuals serving in the military.” True, the exact
details of the plan to carry out the directives are unknown. But what is known, and what is the
bedrock of Plaintiffs’ constitutional challenge, is that the implementation plan must prohibit
transgender accession and authorize the discharge of transgender service members. Otherwise,
the plan would be out of compliance with the requirements of the Presidential Memorandum, and
the Court shall not presume the military to be unfaithful to the orders of the President.
Consequently, while the Court cannot presently adjudicate the merits of the yet-undecided details
of how the directives will be carried out, it can adjudicate the constitutionality of the directives
themselves, which are definite, and must be implemented by the military.
Finally, although Defendants make much of the protections afforded by the Interim
Guidance to transgender individuals, that protection is necessarily qualified by the Presidential
Memorandum. The Interim Guidance provides that: “As directed by the [Presidential]
Memorandum, no action may be taken to involuntarily separate or discharge an otherwise
qualified Service member solely on the basis of a gender dysphoria diagnosis or transgender
37
status.” (Emphasis added). The protections afforded by the Presidential Memorandum lapse by
February 21, 2018, and discharge must be authorized by March 23, 2018. The Interim Guidance
can do nothing to obviate these facts. Nor is standing vitiated by the mere possibility that the
President may alter the directives of the Presidential Memorandum. See Appalachian Power Co.
v. EPA, 208 F.3d 1015, 1022 (D.C. Cir. 2000) (“[A]ll laws are subject to change. Even that most
enduring of documents, the Constitution of the United States, may be amended from time to
time. The fact that a law may be altered in the future has nothing to do with whether it is subject
to judicial review at the moment.”). Nor is there evidence that such a change may occur, given
the President’s unequivocal pronouncement that “the United States government will not accept
or allow transgender individuals to serve in any capacity in the U.S. military.” Accordingly, for
purposes of its standing analysis, the Court concludes that there is a substantial likelihood that
transgender individuals will be indefinitely prevented from acceding to the military as of January
1, 2018, and that the military shall authorize the discharge of current service members who are
transgender as of March 23, 2018.
b. Equal Protection Injury
i. Relevant Case Law
The primary injury alleged by Plaintiffs, and which forms the basis of the Court’s
decision on the merits, is that the directives of the Presidential Memorandum violate the
guarantee of equal protection afforded by the Due Process Clause of the Fifth Amendment. For
purposes of the standing analysis, the Court assumes arguendo that these directives are, in fact,
violative of equal protection. Schnitzler v. United States, 761 F.3d 33, 40 (D.C. Cir. 2014)
(“[T]he Supreme Court has made clear that when considering whether a plaintiff has Article III
38
standing, a federal court must assume arguendo the merits of his or her legal claim.” (internal
quotation marks omitted)).
The Supreme Court and this Circuit have made clear that the “injury in fact element of
standing in an equal protection case is the denial of equal treatment resulting from the imposition
of the barrier.” Am. Freedom Law Ctr. v. Obama, 821 F.3d 44, 51 (D.C. Cir. 2016) (citing Ne.
Florida Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S.
656, 666 (1993) (Thomas, J.)), cert. denied, 137 S. Ct. 1069 (2017). In City of Jacksonville, the
Supreme Court assessed a city ordinance that “required that 10% of the amount spent on city
contracts be set aside each fiscal year for so-called ‘Minority Business Enterprises’ (MBE’s).”
508 U.S. at 658. “Once projects were earmarked for MBE bidding by the city’s chief purchasing
officer, they were deemed reserved for minority business enterprises only.” Id. (internal
quotation marks omitted). Plaintiff was an association of individuals and firms in the
construction industry who did business in the city and most of whom did not qualify under the
ordinance. Id. at 659. The members of the association alleged that they “regularly bid on and
perform[ed] construction work for the City of Jacksonville,” and that they “would have bid on
designated set aside contracts but for the restrictions imposed by the ordinance.” Id. (internal
quotations marks and alterations omitted). In assessing the members’ standing to challenge the
ordinance under these circumstances, the Court held that:
When the government erects a barrier that makes it more difficult
for members of one group to obtain a benefit than it is for members
of another group, a member of the former group seeking to challenge
the barrier need not allege that he would have obtained the benefit
but for the barrier in order to establish standing. The “injury in fact”
in an equal protection case of this variety is the denial of equal
treatment resulting from the imposition of the barrier, not the
ultimate inability to obtain the benefit. . . . And in the context of a
challenge to a set-aside program, the “injury in fact” is the inability
to compete on an equal footing in the bidding process, not the loss
39
of a contract. . . . To establish standing, therefore, a party
challenging a set-aside program like Jacksonville’s need only
demonstrate that it is able and ready to bid on contracts and that a
discriminatory policy prevents it from doing so on an equal basis.
Id. at 666 (emphasis added) (citations omitted).
In Adarand, the Court assessed a requirement that federal agency contracts for general
contractors contain a clause providing for additional compensation if the general contractor hired
subcontractors “certified as small businesses controlled by socially and economically
disadvantaged individuals,” where socially and economically disadvantaged individuals were
deemed to include “Black Americans, Hispanic Americans, Native Americans, Asian Pacific
Americans, and other minorities . . . .” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 205
(1995) (internal quotation marks omitted). Plaintiff submitted a lower bid, but lost to a
competing subcontractor that qualified the general contractor for additional compensation under
the clause. Id. In assessing Plaintiff’s standing for purposes of prospective injunctive relief—
that is, with respect to future injuries—the Court held that the “concrete and particularized”
element of injury in fact was readily satisfied by Plaintiff’s “claim that the Government’s use of
subcontractor compensation clauses denies it equal protection of the laws . . . .” Id. at 211. The
Court was less certain, however, “that the future use of subcontractor compensation clauses will
cause [the plaintiff] ‘imminent’ injury[,]” and consequently required a “showing that sometime
in the relatively near future [the plaintiff] will bid on another Government contract that offers
financial incentives to a prime contractor for hiring disadvantaged subcontractors.” Id. The
plaintiff made a sufficient showing by demonstrating that it was “very likely” to bid on an
affected contract at least once per year, and that in so bidding, the plaintiff often competed
against small disadvantaged businesses. Id. at 212.
40
In Gratz, the plaintiffs, two students who were denied entrance to the University of
Michigan, brought suit challenging the University’s consideration of race as part of its
undergraduate admissions process as violative of equal protection. Gratz v. Bollinger, 539 U.S.
244, 251 (2003) (Rehnquist, C.J.). The Court considered whether one of the plaintiffs had
standing to seek prospective injunctive relief given his statement that he would not apply for
admission as a transfer student until the race-based admissions policy was terminated. Id. at 261.
Relying on City of Jacksonville, the Court found that the plaintiff had standing because “the
University had denied him the opportunity to compete for admission on an equal basis.” Id. at
262. In particular, “[a]fter being denied admission, [the plaintiff] demonstrated that he was ‘able
and ready’ to apply as a transfer student should the University cease to use race in undergraduate
admissions. He therefore [had] standing to seek prospective relief with respect to the
University’s continued use of race in undergraduate admissions.” Id.
More recently, in Parents Involved, the Supreme Court assessed the use by several school
districts of “student assignment plans that rely upon race to determine which public schools
certain children may attend.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S.
701, 709–10 (2007) (Roberts, C.J.). “In Seattle, this racial classification [was] used to allocate
slots in oversubscribed high schools.” Id. at 710. Consequently, Seattle argued that the
members of the plaintiff organization would “only be affected if their children seek to enroll in a
Seattle public high school and choose an oversubscribed school that is integration positive[,]”
which in Seattle’s view was “too speculative a harm to maintain standing.” Id. at 718. The
Court disagreed, finding that plaintiff had standing because its members had “children in the
district’s elementary, middle, and high schools[,]” and injunctive relief was sought on behalf of
members whose children “may be denied admission to the high schools of their choice when
41
they apply for those schools in the future . . . .” Id. (internal quotation marks omitted). The
injury was not eliminated merely because it was “possible that children of group members will
not be denied admission to a school based on their race—because they choose an
undersubscribed school or an oversubscribed school in which their race is an advantage . . . .”
Id.
This line of authority was summarized by the D.C. Circuit in Worth v. Jackson, 451 F.3d
854 (D.C. Cir. 2006) (Tatel, J.). There, the plaintiff challenged written and unwritten
employment policies by the Department of Housing and Urban Development (“HUD”) that
allegedly discriminated on the basis of gender and race, and claimed standing for purposes of
prospective injunctive relief by alleging that he intended “to apply for new positions and
promotions at HUD on a regular basis in the future,” and that HUD would “violate his equal
protection and civil rights” when he did so. Id. at 858 (internal quotation marks and alteration
omitted). Reviewing City of Jacksonville and Adarand, the D.C. Circuit found no reason to
distinguish “between contractors and job applicants[,]” and held that the source of the challenged
policy—“whether a statute, a regulation, or agency guidelines”—did not control the standing
inquiry. Id. at 859. Rather, according to the Circuit, “Adarand rests on the common-sense
notion that when a contractor depends for its livelihood on competing for government contracts,
and when the government has committed itself to doling out those contracts on a race-conscious
basis, it stands to reason that the contractor will soon be competing on an uneven playing field.”
Id. at 859. “Under Adarand, then, the relevant consideration is whether the agency is sufficiently
committed to a particular race-conscious policy that the plaintiff will likely face a career
impediment.” Id.
42
ii. Application to Plaintiffs
For purposes of the standing analysis, Plaintiffs fall into two groups: Named Plaintiffs—
who have yet to accede—and the Pseudonym Plaintiffs—who are currently in the military and
fear that they will be discharged. These two groups challenge the two fundamental directives of
the Presidential Memorandum as unconstitutional: a reversion of accession and retention policy
with respect to transgender individuals (i.e., the Accession and Retention Directives). For the
following reasons, the Court concludes that: (i) the Accession and Retention Directives of the
Presidential Memorandum impose a competitive barrier that the Named and Pseudonym
Plaintiffs are substantially likely to encounter, and (ii) that this barrier constitutes an injury in
fact sufficient to imbue the Named and Pseudonym Plaintiffs with standing to challenge the
propriety of the Accession and Retention Directives of the Presidential Memorandum.
The Accession Directive
Plaintiff Kibby—one of the Named Plaintiffs—has demonstrated a substantial likelihood
that he is able and ready to accede to the military in the relatively near future, and consequently,
that he is in a position to challenge the Accession Directive to the extent it imposes a barrier on
him from acceding based on his transgender status.
Plaintiff Kibby was inducted into the United States Naval Academy in Annapolis,
Maryland as a midshipman on July 1, 2017, and has completed his first two years of education,
out of four. Kibby Decl. ¶ 1. “[A]ll midshipmen are members of the military, [but] are still
considered part of an accessions program since [they] do not receive [their] commission until
graduation.” Id. ¶ 22. After graduation, Plaintiff Kibby hopes “to perform [his] service as a
Surface Warfare Officer aboard a Navy ship.” Id. ¶ 9. Plaintiff Kibby informed his chain of
command that he was transgender in early 2016. Id. ¶ 16. At the end of his last school year, in
43
May 2017, the Commandant and Superintendent “officially approved [Plaintiff’s] medical
transition plan and the request for a year-long medical leave of absence.” Id. ¶ 26. The
transition plan was created in coordination with the Brigade Medical Officer and the
Transgender Care Team at Portsmouth’s Naval Medical Center.” Id. ¶¶ 24–25. The medical
year of absence was taken to comply with the requirement under the June 2016 DTM that
acceding transgender service members be fully transitioned to their chosen gender for at least 18
months prior to accession. Id. ¶ 24. Defendants represent that “Plaintiff Kibby currently is on
medical leave and faces no impediment to returning to the Naval Academy when that leave ends
in May 2018.” Defs.’ Mem. at 16. The Commandant of Midshipmen at the Naval Academy,
Robert B. Chadwick, has represented that Plaintiff Kibby “was afforded much support from the
Brigade Medical Unit, his chain of command, and [the Commandant’s] legal advisors in
developing his [transition] plan and submitting his request [for medical leave].” Chadwick Decl.
¶ 4. According to the Commandant, the “purpose of the [medical] leave is to allow MIDN Kibby
to undergo hormone treatment, and to [obtain] a period of gender stability of sufficient length
under current policy and guidance to ensure his eligibility to accept a commission in May 2020 if
he successfully completes the course of instruction upon return to [the Naval Academy].” Id. ¶
10.
Upon his return, Plaintiff Kibby will be required to meet the male fitness requirements,
which are more difficult than their female counterpart, as well as the Academy’s academic
standards. Id. ¶¶ 15-16. Plaintiff Kibby has represented that during the medical year of absence,
he is “completing a rigorous exercise and training regimen so that [he] will be able to meet the
male fitness standards upon [his] return[,]” and that he “can already meet the male standards for
push-ups and sit-ups and will be working hard on [his] run time.” Kibby Decl. ¶ 28. Given his
44
prior academic success at the Naval Academy, Kibby Decl. ¶ 39, the support afforded to his
transition plan by senior officials, and his representations regarding his fitness training, the Court
finds that Plaintiff Kibby has demonstrated a substantial likelihood that he will be able to meet
the graduation requirements of the Naval Academy. Following graduation, he will be in a
position to accede to the Navy or Marine Corps. Chadwick Decl. ¶ 16. Defendants have not
argued or presented any evidence that Plaintiff Kibby will be unable to graduate from the Naval
Academy—an unsurprising position, given that dismissal stemming from the inability of
transgender individuals to accede would itself likely be an injury sufficient to confer standing to
challenge the constitutionality of the Presidential Memorandum.
Consequently, Plaintiff Kibby has demonstrated that he is “able and ready” to apply for
accession. Using the words of Adarand, he is “very likely” to apply for accession in the
“relatively near future.” Indeed, Plaintiff Kibby has demonstrated a greater likelihood of his
being subject to the competitive barrier than many of the plaintiffs in the equal protection cases
discussed above. In Parents Involved, the members of the plaintiff organization had standing
even though it was possible that they would not even apply to an affected high school—and
nothing was said of the possibility that the students could fail to graduate from elementary or
middle school. In Gratz, the plaintiff merely stated an intention to apply as a transfer student—
surely it was possible that academic failures at his current institution, or other hardships, would
have prevented him from applying. Here, Plaintiff Kibby is on a defined track toward graduation
from the Naval Academy and accession to the military. The track has been approved and
supported by his chain of command. Like any student at the Naval Academy, there are potential
impediments to his graduation. But Plaintiff Kibby has provided affirmative evidence of his
ability to overcome these impediments, and it is unlikely that his chain of command would have
45
adopted a transition plan if they doubted his ability to meet the Academy’s graduation
requirements. It is accordingly likely that he will graduate and attempt to accede. Anything else
is the product of mere speculation. 6
The remaining question is whether Plaintiff Kibby is substantially likely to “hit” a barrier
when he applies for accession to the military. As of January 2018, transgender individuals shall
be prohibited entry to the military, until such time that the President receives a recommendation
to the contrary that he finds convincing. Given the President’s pronouncement that “the United
States government will not accept or allow transgender individuals to serve in any capacity in the
U.S. military,” there is no reason to believe that this directive will change by the time Plaintiff
Kibby is ready to apply for accession in May 2020. Chadwick Decl. ¶ 17. In short, the only
basis from which to conclude that the directive may change is the ever-present reality that every
law is subject to change. But that is insufficient to deprive the Court of subject-matter
jurisdiction. Appalachian Power, 208 F.3d at 1022. Nor does the potential availability of a
waiver change this conclusion. First, Defendants have presented no evidence that waivers are
actually made available to transgender individuals, or that they will be; and the only record
evidence on this point suggests that transgender individuals are not entitled to waivers for
accession purposes. See supra at 5–6. Second, even if a bona fide waiver process were made
available, Plaintiff Kibby would still be subject to a competitive barrier due to his transgender
6
Because the Court concludes that Plaintiff Kibby has a substantial likelihood of
attempting to accede, the Court need not and does not decide whether Plaintiff Kohere has also
demonstrated a likelihood of accession sufficient to stake out an equal protection claim based on
the Accession Directive. See Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651
(2017) (“At least one plaintiff must have standing to seek each form of relief requested in the
complaint.”); Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 53 (2006)
(“the presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy
requirement”).
46
status. For accession purposes, he would be presumptively disqualified because of his
transgender status, unless he obtains a waiver. Those who are not transgender are not subject to
the same blanket proscription. Consequently, a waiver process would not vitiate the barrier that
Plaintiff Kibby claims is violative of equal protection. Accordingly, Plaintiff Kibby has
demonstrated that he is substantially likely to attempt to accede, and to encounter a competitive
barrier at the time of his accession due to his status as a transgender individual, which he claims
is violative of equal protection. This is sufficient to confer standing to challenge the Accession
Directive at this preliminary stage.
With respect to the Pseudonym Plaintiffs, there is no real doubt that they will remain in
the military for long enough to hit the “barrier” that they claim is violative of equal protection.
Each has submitted a declaration stating, and/or alleged, their intention to remain in military
service, and Defendants have submitted declarations for each Pseudonym Plaintiff stating that
they shall not be discharged until the military’s new policy regarding transgender service
members takes effect. See supra at 19–28; Defs.’ Mem at 10–12. There is also no real doubt
that they will face a competitive barrier to their continued retention by the military. As of March
23, 2018, the military is required to effect a policy by which these service members can be
discharged solely due to their transgender status. This barrier to their continued retention is
imposed upon them, but not other service members. And Plaintiffs claim that this competitive
barrier is violative of equal protection. Accordingly, at this preliminary stage, the Pseudonym
Plaintiffs have demonstrated a substantial likelihood of standing to challenge the Presidential
Memorandum’s Retention Directive. See Worth, 451 F.3d at 859 (“Under Adarand, . . . the
relevant consideration is whether the agency is sufficiently committed to a particular race-
conscious policy that the plaintiff will likely face a career impediment.”).
47
iii. Substantial Risk of Injury
Plaintiffs have also established a substantial risk of two future injuries: denial of
accession and discharge from military service. The substantial risk of these two future injuries is
sufficient to constitute an injury in fact. As explained by the Supreme Court, “[a]n allegation of
future injury may suffice if the threatened injury is certainly impending, or there is a substantial
risk that the harm will occur.” SBA List, 134 S. Ct. at 2341 (internal quotation marks omitted;
citing Clapper, 133 S. Ct. at 1147, 1150, n.5). Here, even assuming that the future injuries are
not “certainly impending,” there is a “substantial risk” of their occurrence.
The D.C. Circuit has explained that “the proper way to analyze an increased-risk-of-harm
claim is to consider the ultimate alleged harm . . . as the concrete and particularized injury and
then to determine whether the increased risk of such harm makes injury to an individual citizen
sufficiently imminent for standing purposes.” Attias v. Carefirst, Inc., 865 F.3d 620, 627 (D.C.
Cir. 2017) (internal quotation marks omitted). In some circumstances, the chain of events that is
necessary for the putative future harm to occur is too attenuated to constitute a substantial risk of
that harm and to render that harm imminent. Consequently, in Clapper, the Supreme Court
declined to find standing because the plaintiffs’ “theory of standing [relied] on a highly
attenuated chain of possibilities . . . .” 568 U.S. at 410. “Several links in this chain would have
required the assumption that independent decisionmakers charged with policy discretion . . . and
with resolving complex legal and factual questions . . . would exercise their discretion in a
specific way. . . . With so many links in the causal chain, the injury that the plaintiffs feared was
too speculative to qualify as ‘injury in fact.’” Attias, 865 F.3d at 626 (citation omitted).
Meanwhile, in Attias, a personal data theft case, the D.C. Circuit found standing where the
plaintiffs plausibly alleged that “an unauthorized party has already accessed personally
48
identifying data on [the] servers, and it [was] much less speculative . . . to infer that this party
[had] both the intent and the ability to use that data for ill.” Id. at 628. Here, there is no doubt
that the denial of accession and discharge from the military constitute concrete and particularized
injuries. Whether these are also imminent, based on the reasoning of Clapper and Attias,
requires an analysis of the degree to which these future harms are separated from the present by a
“series of contingent events . . . .” Id.
In Navy Chaplaincy, the plaintiffs, military chaplains who were “non-liturgical
Protestants,” alleged that “the Navy systematically discriminate[d] against members of their
religious denominations in the awarding of promotions in violation” of the Establishment Clause.
In re Navy Chaplaincy, 697 F.3d 1171, 1173 (D.C. Cir. 2012). The plaintiffs claimed standing
for purposes of prospective injunctive relief on the basis that “they face[d] future injury because
they [would] likely suffer discrimination on the basis of their religious denomination when they
are considered for promotion . . . .” Id. at 1176. In the court’s view, the plaintiffs’ assertion of
future injury depended on “two subsidiary premises: that plaintiffs will be considered for
promotion by future selection boards and that selection boards will discriminate against them on
the basis of their religious denomination.” Id. The court found that the plaintiffs had
satisfactorily established both premises. With respect to the first, because the “Navy concede[d]
that future selection boards may very well consider the promotion of at least some plaintiffs.” Id.
With respect to the second, because “plaintiffs challenge[d] specific policies and procedures . . . .
that they claim[ed] resulted in denominational discrimination . . . .” Id.
Plaintiffs have demonstrated a chain of causation leading to concrete and particularized
injuries in which there are few links and each link is substantially likely to occur. With respect
to the Accession Directive, Plaintiff Kibby will suffer an injury in fact if he: (i) graduates from
49
the Naval Academy; (ii) applies for accession; and (iii) is denied accession due to his transgender
status. The first two links in this chain are substantially likely to occur for the reasons already
stated. See supra at 43–46. The third is likely to occur because the Presidential Memorandum
indefinitely delays the accession of transgender individuals, and the President has unequivocally
stated that transgender individuals shall not be permitted to serve in the military. Given this
actuality, it is speculative to assume that transgender individuals will be permitted to accede by
May 2020. At present, there is a substantial risk that accession will remain forbidden, and
Plaintiff Kibby will be precluded from military service.
For the Pseudonym Plaintiffs, the chain of causation is even shorter. They will suffer an
injury in fact if: (i) they remain in the military; and (ii) are discharged based on their transgender
status after March 23, 2018 due to the Retention Directive. On the first point, there is no
disagreement that the Pseudonym Plaintiffs are qualified service members who desire to remain
in military service. See supra at 19–28. On the second point, the available evidence is that the
President—who ultimately controls the military—issued a statement that “the United States
government will not . . . allow transgender individuals to serve in any capacity in the U.S.
military,” and shortly thereafter, issued a Presidential Memorandum that requires the military to
authorize the discharge of transgender service members by March 23, 2018. True, it is
conceivable that the Pseudonym Plaintiffs will not be discharged from the military, despite the
head of the military stating that they will be. But in the absence of a crystal ball, and in light of
these unequivocal factual circumstances, at the present time, the Pseudonym Plaintiffs face a
substantial risk of discharge. This confers upon them an injury in fact.
50
iv. Plaintiffs Have Standing to Challenge the Accession and Retention
Directives
For the foregoing reasons, Plaintiffs have established two injuries in fact with respect to
the Accession and Retention Directives. First, they have demonstrated a substantial likelihood
that they will face a competitive barrier with respect to accession and retention due to their
transgender status. Second, they have demonstrated a substantial risk that they will be denied
accession or discharged from the military due to their transgender status. Defendants do not
contest that these injuries are caused by the Accession and Retention Directives of the
Presidential Memorandum, or that they are redressable by judicial intervention, and the Court
finds that the causation and redressability elements of standing have been satisfied. Were it not
for the Presidential Memorandum, the blanket prohibition against accession by transgender
individuals would have expired on January 1, 2018. Because of the Presidential Memorandum,
that prohibition is extended indefinitely. Furthermore, the Presidential Memorandum requires
the reversion of military policy to one where individuals can be discharged solely based on their
transgender status. Previously, such action was prohibited by the June 2016 DTM. The
accession and retention injuries are caused by the Presidential Memorandum, and they would be
redressed to the extent the Court invalidates the directives of the memorandum. Accordingly,
Plaintiffs have standing to challenge the Accession and Retention Directives.
v. Plaintiffs Do Not Have Standing to Challenge the Sex Reassignment
Surgery Directive
Although the Court concludes that Plaintiffs have standing to challenge the Accession
and Retention Directives, none of the Plaintiffs have demonstrated an injury in fact with respect
to the Sex Reassignment Surgery Directive. First, only some Plaintiffs are implicated by the
provision at all. For those that are, the risk of being impacted by the Sex Reassignment Surgery
Directive is not sufficiently great to confer standing.
51
Jane Doe 1 alleges that “a transition-related procedure Jane Doe 1 was scheduled for was
summarily canceled by the Defense Health Agency.” Am. Compl. ¶ 16. However, Defendants
have submitted a declaration representing that “Jane Doe 1’s application for the supplemental
health care waiver necessary to receive a transition-related surgery is currently being processed
by the Defense Health Agency.” Defs.’ Mem. at 10. Accordingly, Jane Doe 1 has not
demonstrated that she will not receive the surgery prior to the effective date of the Sex
Reassignment Surgery Directive.
Jane Doe 3 has developed a transition treatment plan, but will not begin her treatment until
after she returns from active deployment in Iraq. See supra at 22. Given the possibility of
discharge, the uncertainties attended by the fact that she has yet to begin any transition treatment,
and the lack of certainty on when such treatment will begin, the prospective harm engendered by
the Sex Reassignment Surgery Directive is too speculative to constitute an injury in fact with
respect to Jane Doe 3. Furthermore, John Doe 1 is scheduled for transition related-surgery on
January 4, 2018, and Defendants have represented that this date remains unaffected by the
Presidential Memorandum. Defs.’ Mem. at 11. Finally, the Named Plaintiffs are not currently in
the military and it is speculative whether they will need surgery while in military service.
Plaintiff Kibby, in particular, has stated that he will transition prior to applying for accession.
See supra at 26–27. Accordingly, no Plaintiffs have demonstrated that they are substantially
likely to be impacted by the Sex Reassignment Surgery Directive, and none have standing to
challenge that directive.
2. Ripeness
Defendants also challenge the Court’s subject-matter jurisdiction on the basis of ripeness.
“Determining whether administrative action is ripe for judicial review requires [the Court] to
52
evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of
withholding court consideration.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808
(2003). On the first prong, the Court must consider: “whether the issue is purely legal, whether
consideration of the issue would benefit from a more concrete setting, and whether the agency’s
action is sufficiently final.” Nat’l Ass’n of Home Builders v. U.S. Army Corps of Engineers, 440
F.3d 459, 463–64 (D.C. Cir. 2006) (internal quotation marks omitted). On the second prong, the
Court must consider “whether postponing judicial review would impose an undue burden on [the
Plaintiffs] or would benefit the court.” Id. (internal quotation marks omitted).
A facial equal protection challenge is a purely legal question. See Beach Commc’ns, Inc.
v. FCC, 959 F.2d 975, 986 (D.C. Cir. 1992). To the extent the Court considers factual issues
with respect to the equal protection analysis, they are only those facts that are already
established: namely, those going to the basis for the issuance of the Presidential Memorandum.
Future factual development does not alter that basis, and is consequently irrelevant to the equal
protection analysis. Defendants do not contest this point. See XP Vehicles, Inc. v. Dep’t of
Energy, 118 F. Supp. 3d 38, 58 (D.D.C. 2015) (finding Fifth Amendment challenge to be a
purely legal inquiry).
To a large extent, Defendants’ ripeness arguments have already been addressed in the
standing context. The Court reiterates its conclusion here. While there is present uncertainty
regarding the exact details of the military’s future policy towards transgender service members,
there is no uncertainty regarding two directives of the Presidential Memorandum: the military
must authorize the discharge of transgender service members, and accession by transgender
individuals is prohibited, indefinitely. The Court does not adjudicate the details of that future
policy, but rather, only assesses whether these directives in-and-of-themselves violate the
53
Constitution. The directives are known, and so are the circumstances under which they were
issued. They cannot be more concrete, and future policy by the military—absent action from the
President—cannot change what the directives require. There is no reason to believe that the
President will alter these directives, and the Court must assume that they will be faithfully
executed by the military. See National Mining Association, 145 F.3d at 1408; Appalachian
Power, 208 F.3d at 1022. Consequently, the constitutionality of the Accession and Retention
Directives is a matter fit for judicial resolution.
Furthermore, the nature of the equal protection analysis in this case, which assesses the
facial validity of the Presidential Memorandum, means that the Court would not benefit from
delay—the salient facts regarding the issuance of the Presidential Memorandum are not subject
to change. This contrasts with the burden that delay would impose upon Plaintiffs, who must
continue to serve or strive toward service, expending resources and declining other opportunities,
while faced with the prospect of discharge and preclusion of military service, and the stigma that
the Presidential Memorandum attaches to service by transgender individuals. See supra at 19–
28. Accordingly, the propriety of the Accession and Retention Directives is a matter ripe for
adjudication.
Because Plaintiffs have established standing and ripeness with respect to the Accession
and Retention Directives of the Presidential Memorandum, the Court turns to the merits.
B. Defendants’ Motion to Dismiss for Failure to State a Claim
Plaintiffs assert two overarching claims in this case. Plaintiffs’ first broad claim is that,
for a variety of reasons, the Presidential Memorandum violates the guarantees of the Due Process
Clause of the Fifth Amendment. Plaintiffs’ second distinct claim is for estoppel. Defendants
move to dismiss both claims under Federal Rule 12(b)(6). For the same reasons the Court
concludes that Plaintiffs are likely to succeed on the merits of their Due Process Clause
54
challenge for the purposes of their motion for preliminary injunction—discussed below—the
Court will not dismiss Plaintiffs’ Due Process Clause claims.
However, the Court will dismiss, without prejudice, Plaintiffs’ estoppel claim. The
Supreme Court has expressed substantial skepticism with respect to government estoppel, noting
that when “the Government is unable to enforce the law because the conduct of its agents has
given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is
undermined.” Heckler v. Cmty. Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 60 (1984).
Nonetheless, the Court has refused to adopt “a flat rule that estoppel may not in any
circumstances run against the Government,” noting that “the public interest in ensuring that the
Government can enforce the law free from estoppel might be outweighed by the countervailing
interest of citizens in some minimum standard of decency, honor, and reliability in their dealings
with their Government.” Id. at 60–61; see also Office of Pers. Mgmt. v. Richmond, 496 U.S. 414,
419 (1990) (“From our earliest cases, we have recognized that equitable estoppel will not lie
against the Government as it lies against private litigants.”).
Defendants contend that Plaintiffs’ estoppel claim fails because there is no recognized
federal cause of action for estoppel. Defs.’ Mem. at 37. The Court declines to dismiss Plaintiffs’
claim on this basis, however, because although judicial hostility has been expressed with respect
to government estoppel, neither the Supreme Court or the D.C. Circuit have definitively ruled
out the claim. In fact, recent decisions by the D.C. Circuit have at least assessed the claim on the
merits. See Masters Pharm., Inc. v. DEA, 861 F.3d 206, 225 (D.C. Cir. 2017); Morris
Commc’ns, Inc. v. FCC, 566 F.3d 184, 191 (D.C. Cir. 2009); Graham v. SEC, 222 F.3d 994,
1007 (D.C. Cir. 2000). Accordingly, at least by implication, the D.C. Circuit has recognized that
55
an estoppel claim may be brought against agency defendants—here, the Departments of Defense
and Homeland Security—under certain circumstances.
The elements of a government estoppel claim are that “(1) the government made a
‘definite representation’; (2) on which the entity ‘relied in such a manner as to change its
position for the worse’; (3) the entity’s reliance was reasonable; and (4) ‘the government
engaged in affirmative misconduct.’” Masters Pharm., 861 F.3d at 225 (citations and alterations
omitted). The affirmative misconduct element requires a showing “that government agents
engage[d]—by commission or omission—in conduct that can be characterized as
misrepresentation or concealment, or, at least, behave[d] in ways that have or will cause an
egregiously unfair result.” GAO v. Gen. Accounting Office Pers. Appeals Bd., 698 F.2d 516, 526
(D.C. Cir. 1983).
Based on the allegations in the Amended Complaint, the Court concludes that the facts of
this case are not actionable under an “estoppel” theory. Plaintiffs claim that the June 2016 DTM
“constituted a definite representation to Plaintiffs that they would be able to serve openly.” Pls.’
Mem. at 26. However, the DTM was not a definite representation to any of the individuals
Plaintiffs, but rather constituted a broad policy decision by the government that affected scores
of individuals. The DTM did not specifically represent to any particular individual that he or she
would be permitted to serve. The cases that Plaintiffs cite are distinguishable on this basis. For
example, in Watkins, the Ninth Circuit estopped the Army from refusing to reenlist the plaintiff
“on the basis of his homosexuality” because “the Army affirmatively acted in violation of its
own regulations when it repeatedly represented that [the plaintiff] was eligible to reenlist, as well
as when it reenlisted him time after time.” Watkins v. U.S. Army, 875 F.2d 699, 707–08, 731
(9th Cir. 1989). These representations were directed at the plaintiff, because on “the one
56
occasion when the record was unclear, [the plaintiff] sought clarification and his classification
was immediately changed from ‘unknown’ to ‘eligible for reentry on active duty.’” Id. at 707.
Similarly, in Johnson, the Ninth Circuit estopped the government from rescinding the plaintiff’s
parole “after his parole computation had passed successfully through as many as eight
administrative reviews . . . .” Johnson v. Williford, 682 F.2d 868, 872 (9th Cir. 1982).
It may be that some Plaintiffs have detrimentally relied upon specific representations
from their chain of command that could more plausibly support a government estoppel claim, but
if that is the case, those instances are not adequately alleged; only generalized assertions of
reliance are asserted in the complaint. See, e.g., Am. Compl. ¶ 3 (“Plaintiffs, along with many
other service members, have followed protocol in informing their chain of command that they
are transgender. They did so in reliance on the United States’ express promises that it would
permit them to continue to serve their country openly.”); ¶ 14 (“In or around June 2016, in
reliance on the issuance of the policy permitting open service by transgender service members,
Jane Doe 1 notified her command that she is transgender.”); ¶ 31 (“After June 2016, in reliance
on the announcement that transgender people would be permitted to serve openly, she notified
her superiors that she is transgender. She has served in the intervening time without incident.”).
Allowing estoppel claims to go forward based on such generalized theories of reliance would
seem to implicate the reasonable concerns other courts have raised about government estoppel.
Furthermore, Plaintiffs have not plausibly alleged that government agents have engaged
in specific instances of “affirmative misconduct.” No affirmative instances of misrepresentation
or concealment have been plausibly alleged. While Plaintiffs point to the revocation of the June
2016 DTM—via the Presidential Memorandum—as “egregiously unfair,” they fail to articulate
how that unfairness is the product of “misconduct” as the Court understands that term in this
57
context. See Pl.’s Mem. at 28. Because these specific facts have not been plausibly alleged, the
Court shall not permit the estoppel claim to proceed at this time. Accordingly, the claim is
dismissed without prejudice.
C. Plaintiffs’ Motion for Preliminary Injunction
Having determined that Plaintiffs have standing to challenge the Accession and Retention
Directives and that their claims are ripe, the Court moves on to consider Plaintiffs’ motion for
preliminary injunction. Plaintiffs ask the Court to enjoin the enforcement of the Accession and
Retention Directives pending the final resolution of this lawsuit. The Court will grant Plaintiffs’
motion. The Court finds (1) that Plaintiffs have a likelihood of succeeding on their claim that the
Accession and Retention Directives violate the Fifth Amendment, (2) that Plaintiffs would suffer
irreparable injury in the absence of an injunction, and (3) that the balance of equities and the
public interest favor granting injunctive relief.
1. Likelihood of Success on the Merits
Although Plaintiffs’ estoppel claim has been dismissed, the Court is convinced that
Plaintiffs are likely to succeed in this lawsuit under the Fifth Amendment. The Due Process
Clause of the Fifth Amendment provides that “No person shall be . . . deprived of life, liberty, or
property, without due process of law.” U.S. Const. amend. V. Although Plaintiffs have
suggested a number of different analytical frameworks for considering whether the Accession
and Retention Directives violate this guarantee, the Court finds the framework applicable to the
Due Process Clause’s equal protection component most relevant. “In numerous decisions, [the
Supreme Court] ‘has held that the Due Process Clause of the Fifth Amendment forbids the
Federal Government to deny equal protection of the laws.’” Davis v. Passman, 442 U.S. 228,
234 (1979) (quoting Vance v. Bradley, 440 U.S. 93, 94 n.1 (1979)); see also United States v.
58
Windsor, 133 S. Ct. 2675, 2695 (2013) (“The liberty protected by the Fifth Amendment’s Due
Process Clause contains within it the prohibition against denying to any person the equal
protection of the laws.”). To determine whether the Accession and Retention Directives violate
the Due Process Clause’s guarantee because they deny the equal protection of the laws to
transgender Americans, the Court must decide (a) the level of scrutiny applicable, and (b)
whether the Accession and Retention Directives are likely to survive that level of scrutiny. 7
a. Level of Scrutiny
The general rule is that government action that treats certain classes of people differently
“is presumed to be valid and will be sustained if the classification drawn . . . is rationally related
to a legitimate state interest.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440
(1985). However, this general rule does not apply where the government action draws
distinctions between individuals based on certain suspect or quasi-suspect classifications. Id. at
440–41. In those instances, the Court must apply a heightened degree of scrutiny. Id.
At this preliminary stage of the case, the Court is persuaded that it must apply a
heightened degree of scrutiny to the Accession and Retention Directives. The Court reaches this
conclusion for two reasons. First, on the current record, transgender individuals—who are alone
targeted for exclusion by the Accession and Retention Directives—appear to satisfy the criteria
of at least a quasi-suspect classification. “The Supreme Court has used several explicit criteria to
identify suspect and quasi-suspect classifications.” Padula v. Webster, 822 F.2d 97, 102 (D.C.
Cir. 1987). The Court has observed that a suspect class is one that has “experienced a ‘history of
purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped
7
At the threshold, Defendants argue that Plaintiffs’ claims are unlikely to succeed on the
merits because Plaintiffs lack standing and their claims are not ripe. The Court has already
found that Plaintiffs have standing and ripe claims.
59
characteristics not truly indicative of their abilities.” Massachusetts Bd. of Ret. v. Murgia, 427
U.S. 307, 313 (1976) (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28
(1973)). Also relevant is whether the group has been “relegated to such a position of political
powerlessness as to command extraordinary protection from the majoritarian political process.”
Id. Finally, the Supreme Court has also considered whether the group “exhibit[s] obvious,
immutable, or distinguishing characteristics that define them as a discrete group.” Lyng v.
Castillo, 477 U.S. 635, 638 (1986).
The transgender community satisfies these criteria. Transgender individuals have
immutable and distinguishing characteristics that make them a discernable class. See, e.g.,
Medical Amici Brief at 3-13 (describing what it means to be transgender). 8 As a class,
transgender individuals have suffered, and continue to suffer, severe persecution and
discrimination. See, e.g., State Amici Brief at 3 (describing the discrimination the transgender
community suffers); Trevor Project Amici Brief at 10-12, 15-16 (discussing the harmful effects
of discrimination against transgender youth); see also Whitaker By Whitaker v. Kenosha Unified
Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1051 (7th Cir. 2017) (holding that “[t]here is no
denying that transgender individuals face discrimination, harassment, and violence because of
their gender identity,” and noting report by the National Center for Transgender Equality finding
8
The Motions for Leave to File Amici Curiae Briefs in Support of Plaintiffs filed by
Medical, Nursing, Mental Health, and other Health Care Organizations, ECF No. 44 (“Medical
Amici Brief”), The Trevor Project, ECF No. 49 (“Trevor Project Amici Brief”), Massachusetts,
California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, New Mexico, New York,
Oregon, Pennsylvania, Rhode Island, Vermont, and the District of Columbia, ECF No. 50 (“State
Amici Brief”), and the National Center for Transgender Equality, the Tennessee Transgender
Political Coalition, TGI Network of Rhode Island, the Transgender Allies Group, the
Transgender Legal Defense & Education Fund, TransOhio, the Transgender Resource Center of
New Mexico, and the Southern Arizona Gender Alliance, ECF No. 52, are GRANTED. These
amici briefs have assisted the Court in reaching its decision.
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that 78% of students who identify as transgender or as gender non-conformant report being
harassed while in grades K-12). Despite this discrimination, the Court is aware of no argument
or evidence suggesting that being transgender in any way limits one’s ability to contribute to
society. See State Amici Brief at 2; Medical Amici Brief at 2; Trevor Project Amici Brief at 9.
The exemplary military service of Plaintiffs in this case certainly suggests that it does not.
Finally, transgender people as a group represent a very small subset of society lacking the sort of
political power other groups might harness to protect themselves from discrimination. See
Medical Amici Brief at 4 (noting that recent estimates suggest that transgender individuals make
up approximately 0.6 percent of the adult population in the United States); see also Adkins v.
City of New York, 143 F. Supp. 3d 134, 140 (S.D.N.Y. 2015) (noting that there is “no indication
that there have ever been any transgender members of the United States Congress or the federal
judiciary”).
Although the Court is aware of no binding precedent on this issue, it has taken note of the
findings and conclusions of a number of other courts from across the country that have also
found that discrimination on the basis of someone’s transgender identity is a quasi-suspect form
of classification that triggers heightened scrutiny. See Evancho v. Pine-Richland Sch. Dist., 237
F. Supp. 3d 267, 288 (W.D. Pa. 2017) (holding that “all of the indicia for the application of the
heightened intermediate scrutiny standard are present” for transgender individuals); Bd. of Educ.
of the Highland Local Sch. Dist. v. United States Dep’t of Educ., 208 F. Supp. 3d 850, 872–74
(S.D. Ohio 2016) (finding that “transgender status is a quasi-suspect class under the Equal
Protection Clause”); Adkins, 143 F. Supp. 3d at 140 (“[T]he Court concludes that transgender
people are a quasi-suspect class” and “[a]ccordingly, the Court must apply intermediate scrutiny
to defendants’ treatment of plaintiff”).
61
Second, the Court is also persuaded that the Accession and Retention Directives are a
form of discrimination on the basis of gender, which is itself subject to intermediate scrutiny. It
is well-established that gender-based discrimination includes discrimination based on non-
conformity with gender stereotypes. See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989)
(“[W]e are beyond the day when an employer could evaluate employees by assuming or insisting
that they matched the stereotype associated with their group”). The Accession and Retention
Directives’ exclusion of transgender individuals inherently discriminates against current and
aspiring service members on the basis of their failure to conform to gender stereotypes. The
defining characteristic of a transgender individual is that their inward identity, behavior, and
possibly their physical characteristics, do not conform to stereotypes of how an individual of
their assigned sex should feel, act and look. See Medical Amici Brief at 3-13. By excluding an
entire category of people from military service on this characteristic alone, the Accession and
Retention Directives punish individuals for failing to adhere to gender stereotypes. See
Whitaker, 858 F.3d at 1051 (holding that heightened scrutiny used for sex-based classifications
applied to school policy requiring transgender student to use bathroom of sex listed on his birth
certificate because it “treat[ed] transgender students . . . who fail to conform to the sex-based
stereotypes associated with their assigned sex at birth, differently. . . . These students are
disciplined under the School District’s bathroom policy if they choose to use a bathroom that
conforms to their gender identity”); Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011)
(holding that “discrimination against a transgender individual because of her gender-
nonconformity is sex discrimination”); Smith v. City of Salem, Ohio, 378 F.3d 566, 577 (6th Cir.
2004) (holding that the facts alleged by transsexual plaintiff to support his claims of gender
discrimination on the basis of sex stereotyping “easily constitute a claim of sex discrimination
62
grounded in the Equal Protection Clause of the Constitution”). A service member who was born
a male is punished by the Accession and Retention Directives if he identifies as a woman,
whereas that same service member would be free to join and remain in the military if he was
born a female, or if he agreed to act in the way society expects males to act. The Accession and
Retention Directives are accordingly inextricably intertwined with gender classifications.
For these two reasons, the Court will apply an intermediate level of scrutiny to
Defendants’ exclusion of transgender individuals from the military, akin to the level of scrutiny
applicable in gender discrimination cases. Before moving on to that analysis, however, the Court
pauses to note that meaningful scrutiny of the constitutionality of the Accession and Retention
Directives is appropriate despite the fact that they pertain to decisions about military personnel.
Although the Court recognizes that deference to the Executive and Congress is warranted in the
military context, the Court is not powerless to assess whether the constitutional rights of
America’s service members have been violated. The D.C. Circuit has explained that although
“the operation of the military is vested in Congress and the Executive, and . . . it is not for the
courts to establish the composition of the armed forces[,] . . . constitutional questions that arise
out of military decisions regarding the composition of the armed forces are not committed to the
other coordinate branches of government.” Emory v. Sec’y of Navy, 819 F.2d 291, 294 (D.C.
Cir. 1987). “Where it is alleged, as it is here, that the armed forces have trenched upon
constitutionally guaranteed rights through the promotion and selection process, the courts are not
powerless to act.” Id. “The military has not been exempted from constitutional provisions that
protect the rights of individuals” and, indeed, “[i]t is precisely the role of the courts to determine
whether those rights have been violated.” Id.; see also Chappell v. Wallace, 462 U.S. 296, 304
(1983) (“This Court has never held, nor do we now hold, that military personnel are barred from
63
all redress in civilian courts for constitutional wrongs suffered in the course of military
service.”); Matlovich v. Sec’y of the Air Force, 591 F.2d 852, 859 (D.C. Cir. 1978) (“It is
established, of course, that the federal courts have the power and the duty to inquire whether a
military discharge was properly issued under the Constitution.”).
b. Application of Intermediate Scrutiny
Having determined that an intermediate level of heightened scrutiny should apply to the
Accession and Retention Directives’ discrimination against transgender individuals, the Court
moves on to assessing whether Plaintiffs are likely to succeed when that level of scrutiny is
actually applied. Under intermediate scrutiny, the government must demonstrate an
“exceedingly persuasive justification” for its actions. United States v. Virginia, 518 U.S. 515,
531 (1996). “The burden of justification is demanding and it rests entirely on” the government.
Id. at 533. The government “must show ‘at least that the [challenged] classification serves
important governmental objectives and that the discriminatory means employed are substantially
related to the achievement of those objectives.’” Id. (quoting Mississippi Univ. for Women v.
Hogan, 458 U.S. 718, 724 (1982) (internal quotations omitted)). “The justification must be
genuine, not hypothesized or invented post hoc in response to litigation.” Id. “And it must not
rely on overbroad generalizations about the different talents, capacities, or preferences of males
and females.” Id. Finally, it is well established that “[t]he Constitution’s guarantee of equality
‘must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot’
justify disparate treatment of that group.” Windsor, 133 S. Ct. at 2693 (quoting U. S. Dep’t of
Agric. v. Moreno, 413 U.S. 528, 534-35 (1973)).
Applying these standards, the Court finds that Plaintiffs are likely to succeed in
demonstrating that the Accession and Retention Directives’ exclusion of transgender individuals
64
from the military is unconstitutional. At the outset, the Court reiterates precisely what is at issue
in this case: a policy banning the accession, and allowing the discharge, of an entire category of
individuals from the military solely because they are transgender, despite their ability to meet all
of the physical, psychological, and other standards for military service. Defendants argue that
this policy is necessary for three reasons. First, Defendants argue that “at least some transgender
individuals suffer from medical conditions that could impede the performance of their duties.”
Defs.’ Mem. at 31. Second, Defendants argue that “there is room for the military to think” that
certain medical conditions “may limit the deployability of transgender individuals as well as
impose additional costs on the armed forces.” Id. at 32. Third, Defendants argue that “the
President could reasonably conclude” that the presence of transgender individuals in the military
would harm “unit cohesion.” Id. at 33. 9
Plaintiffs do not dispute that maximizing military effectiveness, lethality and unit
cohesion, and even budgetary considerations, are all important or at least legitimate government
interests. Pls.’ Mem. at 17. They do challenge, however, whether Defendants can satisfy their
burden of demonstrating that the discriminatory means that have been employed in the
Presidential Memorandum—the Accession and Retention Directives—are “substantially related”
to the achievement of these objectives. Based on the combined effect of a number of unusual
factors, the Court finds it likely that Plaintiffs will succeed on this claim.
First, the reasons given for the decision to exclude transgender service members appear to
be hypothetical and extremely overbroad. For instance, Defendants cite concerns that “some”
transgender individuals “could” suffer from medical conditions that impede their duties, and
9
Plaintiffs note that similar arguments were proffered in support of prior policies
precluding service members from being openly gay, maintaining racially segregated ranks and
excluding women from military colleges.
65
assert that “there is room for the military to think” that transgender people may be limited in
their deployability at times. As an initial matter, these hypothetical concerns could be raised
about any service members. Moreover, these concerns do not explain the need to discharge and
deny accession to all transgender people who meet the relevant physical, mental and medical
standards for service. The Accession and Retention Directives are accordingly extremely
overbroad when considered in the light of their proffered justifications. See Romer v. Evans, 517
U.S. 620, 632 (1996) (holding that law’s “sheer breadth is so discontinuous with the reasons
offered for it that [it] seems inexplicable by anything but animus toward the class it affects”).
The breadth of the Accession and Retention Directives is also discontinuous with the purported
concern about costs, which, in addition to having been found to be minimal or negligible,
apparently are primarily related to a surgical procedure that only a subset of transgender
individuals will even need. Similarly, Defendants provide practically no explanation at all, let
alone support, for their suggestion that the presence of transgender individuals may be harmful to
“unit cohesion.” 10 Indeed, Defendants themselves highlight the absence of any prior studies or
evaluations supporting the proffered justifications by arguing that they must now conduct studies
regarding transgender military service before they can adequately defend the President’s
decision. At most, Defendants’ reasons appear therefore to be based on unsupported, “overbroad
generalizations about the different talents, capacities, or preferences,” of transgender people.
Virginia, 518 U.S. at 533.
10
To the extent this is a thinly-veiled reference to an assumption that other service
members are biased against transgender people, this would not be a legitimate rationale for the
challenged policy. “Private biases may be outside the reach of the law, but the law cannot,
directly or indirectly, give them effect.” See Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
66
Nonetheless, given the deference owed to military personnel decisions, the Court has not
based its conclusion solely on the speculative and overbroad nature of the President’s reasons. A
second point is also crucial. As far as the Court is aware at this preliminary stage, all of the
reasons proffered by the President for excluding transgender individuals from the military in this
case were not merely unsupported, but were actually contradicted by the studies, conclusions
and judgment of the military itself. As described above, the effect of transgender individuals
serving in the military had been studied by the military immediately prior to the issuance of the
Presidential Memorandum. In connection with the working group chaired by the Under
Secretary of Defense for Personnel and Readiness, the RAND National Defense Research
Institute conducted a study and issued a report largely debunking any potential concerns about
unit cohesion, military readiness, deployability or health care costs related to transgender
military service. The Department of Defense Working Group, made up of senior uniformed
officers and senior civilian officers from each military department, unanimously concluded that
there were no barriers that should prevent transgender individuals from serving in the military,
rejecting the very concerns supposedly underlying the Accession and Retention Directives. In
fact, the Working Group concluded that prohibiting transgender service members would
undermine military effectiveness and readiness. Next, the Army, Air Force and Navy each
concluded that transgender individuals should be allowed to serve. Finally, the Secretary of
Defense concluded that the needs of the military were best served by allowing transgender
individuals to openly serve. In short, the military concerns purportedly underlying the
President’s decision had been studied and rejected by the military itself. 11 This highly unusual
11
This differentiates this case from Goldman v. Weinberger, 475 U.S. 503, 508 (1986), a
case cited by Defendants, in which the court deferred to a decision that was based on the
“considered professional judgment of the Air Force.”
67
situation is further evidence that the reasons offered for the Accession and Retention Directives
were not substantially related to the military interests the Presidential Memorandum cited.
Third, the Court has also considered the circumstances surrounding the announcement of
the President’s policy. “In determining whether a law is motived by an improper animus or
purpose, ‘[d]iscriminations of an unusual character’ especially require careful consideration.”
Windsor, 133 S. Ct. at 2693 (quoting Romer, 517 U.S. at 633). The discrimination in this case
was certainly of an unusual character. As explained above, after a lengthy review process by
senior military personnel, the military had recently determined that permitting transgender
individuals to serve would not have adverse effects on the military and had announced that such
individuals were free to serve openly. Many transgender service members identified themselves
to their commanding officers in reliance on that pronouncement. Then, the President abruptly
announced, via Twitter—without any of the formality or deliberative processes that generally
accompany the development and announcement of major policy changes that will gravely affect
the lives of many Americans—that all transgender individuals would be precluded from
participating in the military in any capacity. These circumstances provide additional support for
Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine
concerns regarding military efficacy. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 267 (1977) (holding that “[t]he specific sequence of events leading up the
challenged decision . . . may shed some light on the decisionmaker’s purposes” and “[d]epartures
from the normal procedural sequence also might afford evidence that improper purposes are
playing a role”).
In sum, even if none of the reasons discussed above alone would be sufficient for the
Court to conclude that Plaintiffs were likely to succeed on their Fifth Amendment claim, taken
68
together they are highly suggestive of a constitutional violation. The likelihood of success factor
accordingly weighs in favor of granting preliminary injunctive relief. For the same reasons, the
Court will deny Defendants’ motion to dismiss Plaintiffs’ claims under the Due Process Clause.
Defendants make a few additional points regarding the merits of Plaintiffs’ claims that
must be addressed. First, Defendants argue that Plaintiffs cannot demonstrate a likelihood of
success on the merits regarding the Presidential Memorandum’s policy for enlisted service
members in particular because Secretary Mattis’ Interim Guidance is the “operative policy,” and
that guidance “does not impermissibly classify service members based on transgender status, but
rather prohibits disparate treatment of existing service members based on transgender status.”
Defs.’ Mem. at 24. This may be true, but the focus of Plaintiffs’ Amended Complaint is not the
Interim Guidance, but the Presidential Memorandum. The Accession and Retention Directives
of the Presidential Memorandum require the return to a policy that “generally prohibit[s] openly
transgender individuals from accession into the United States military and authorize[s] the
discharge of such individuals.” Presidential Memorandum § 1(a). This overt disparate
treatment, which will become effective when Secretary Mattis’ Interim Guidance elapses early
next year, is the subject of Plaintiffs’ lawsuit.
Second, Defendants cite a number of cases for the proposition that the Presidential
Memorandum “is subject to a highly deferential form of review.” Defs.’ Mem. at 27. The Court
has reviewed those cases and determined that none of them require the Court to apply a different
level of scrutiny than has been applied here. Of primary importance is the Supreme Court’s
opinion in Rostker v. Goldberg, 453 U.S. 57 (1981). The Supreme Court in Rostker expressly
declined to hold that the intermediate scrutiny applicable to gender discrimination did not apply
in the military personnel context. Id. at 69. Instead, the Court reviewed the particular facts
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before it and found that the district court in that case had not sufficiently deferred to the reasoned
decision of Congress in the context of a particular military personnel-related decision.
The facts of that case are strikingly different than those presented here. In Rostker, the
Court noted that “Congress did not act unthinkingly or reflexively and not for any considered
reason,” when it passed the challenged policy. Id. at 72 (internal quotations omitted). To the
contrary, the Court noted Congress’ “studied choice of one alternative in preference to another,”
and relied on the fact that the policy at issue in that case had been “extensively considered by
Congress in hearings, floor debate, and in committee.” Id. In other words, Congress had
received extensive evidence on the issue, and simply chose one of two competing alternatives.
The Supreme Court found that “[t]he District Court was quite wrong in undertaking an
independent evaluation of this evidence, rather than adopting an appropriately deferential
examination of Congress’ evaluation of that evidence.” Id. at 82-83.
The study and evaluation of evidence that the Rostker Court found warranted judicial
deference is completely absent from the current record. Contrary to Defendants’ assertion, this
does not appear to be a case where the Court is required to pick sides in a “battle of experts.”
Defs.’ Mem. at 32. To the contrary, the record at this stage of the case shows that the reasons
offered for categorically excluding transgender individuals were not supported and were in fact
contradicted by the only military judgment available at the time. Accordingly, unlike the district
court in Rostker, the Court’s analysis in this Opinion has not been based on an independent
evaluation of evidence or faulting of the President for choosing between two alternatives based
on competing evidence.
Third, Defendants seem to argue that they are free of the obligation of rationalizing the
Accession and Retention Directives because the directives are a mere continuation of a long-
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standing policy. This is false. The Accession and Retention Directives constituted a revocation
from transgender people of rights they were previously given. Before the Accession and
Retention Directives, transgender people had already been given the right to serve openly and the
right to accede by a date certain in early 2018. The Accession and Retention Directives took
those rights away from transgender people and transgender people only. The targeted revocation
of rights from a particular class of people which they had previously enjoyed—for however short
a period of time—is a fundamentally different act than not giving those rights in the first place,
and it will be the government’s burden in this case to show that this act was substantially related
to important government objectives. See Perry v. Brown, 671 F.3d 1052, 1079-80 (9th Cir.
2012), vacated and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)
(“Withdrawing from a disfavored group the right to obtain a designation with significant societal
consequences is different from declining to extend that designation in the first place, regardless
of whether the right was withdrawn after a week, a year, or a decade.”). Targeted revocations of
rights are a factor that has been present in a number of cases finding equal protection violations.
See Romer, 517 U.S. at 627 (holding that law that “withdr[ew] from homosexuals, but no others,
specific legal protection . . . and . . . forb[ade] reinstatement of these laws and policies” was
unconstitutional); Windsor, 133 S. Ct. at 2695–96 (holding that the purpose of a law that
“impose[d] a disability on [a] class by refusing to acknowledge a status” previously granted was
to “disparage and to injure those” in that class).
Finally, Defendants argue that the military’s previous study of transgender service cannot
forever bind future administrations from looking into the issue themselves. The Court fully
agrees with this point. The Court by no means suggests that it was not within the President’s
authority to order that additional studies be undertaken and that this policy be reevaluated. If the
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President had done so and then decided that banning all transgender individuals from serving in
the military was beneficial to the various military objectives cited, this would be a different case.
But as discussed above, that is not the case before the Court. The Court can only assess
Plaintiffs’ equal protection claim based on the facts before it. At this time, it appears that the
rights of a class of individuals were summarily and abruptly revoked for reasons contrary to the
only then-available studies. As explained above, based on the cumulative effect of various
unusual facts, the Court is convinced that Plaintiffs are likely to succeed on the merits of their
Fifth Amendment claim. This finding in no way should be interpreted to prevent Defendants
from continuing to study issues surrounding the service of transgender individuals in the
military, as they have asserted that they intend to do.
The Court concludes this portion of its Memorandum Opinion with a caveat. This case
comes before the Court on Plaintiffs’ motion for a preliminary injunction and Defendants’
motion to dismiss. It is accordingly still at its very earliest stages, and the record is necessarily
limited. The Court’s task at this time is to determine whether Plaintiffs have stated plausible
claims and demonstrated a likelihood—not a certainty—of success based on the present record.
The Court is persuaded that Plaintiffs have made these fairly modest showings, but this is not a
final adjudication of the merits of Plaintiffs’ claims.
2. Irreparable Injury
Next, the Court finds that Plaintiffs have demonstrated that they would suffer irreparable
injury in the absence of preliminary injunctive relief. In order to satisfy the irreparable injury
requirement, “[f]irst, the injury ‘must be both certain and great; it must be actual and not
theoretical.’” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir.
2006) (citation omitted). “Second, the injury must be beyond remediation.” Id.
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These elements are met here. Defendants argue that “for much the same reasons they
lack standing, Plaintiffs cannot show that they will suffer certain, great, or any actual injuries if
the Court does not enter an injunction.” Defs.’ Mem. at 21. The Court has already rejected those
arguments in the context of finding that Plaintiffs have standing, at least with respect to the
Accession and Retention Directives, and rejects them again in this context. Absent an
injunction, Plaintiffs will suffer a number of harms that cannot be remediated after that fact even
if Plaintiffs were to eventually succeed in this lawsuit. The impending ban brands and
stigmatizes Plaintiffs as less capable of serving in the military, reduces their stature among their
peers and officers, stunts the growth of their careers, and threatens to derail their chosen calling
or access to unique educational opportunities. See Elzie v. Aspin, 841 F. Supp. 439, 443 (D.D.C.
1993) (holding that plaintiff would suffer irreparable injury in the absence of preliminary
injunctive relief because “plaintiff faces the stigma of being removed from active duty as a
sergeant in the Marine Corps—a position which he has performed in a sterling fashion for eleven
years—and labeled as unfit for service solely on the basis of his sexual orientation, a criterion
which has no bearing on his ability to perform his job”). Money damages or other corrective
forms of relief will not be able to fully remediate these injuries once they occur. Moreover, these
injuries are also imminent, in that they are either ongoing or, at the latest, will begin when the
Accession and Retention Directives take effect early next year.
These injuries are irreparable for the additional reason that they are the result of alleged
violations of Plaintiffs’ rights to equal protection of the laws under the Fifth Amendment. “It has
long been established that the loss of constitutional freedoms, ‘for even minimal periods of time,
unquestionably constitutes irreparable injury.’” Mills v. District of Columbia, 571 F.3d 1304,
1312 (D.C. Cir. 2009) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); see also Gordon v.
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Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) (“‘[A] prospective violation of a constitutional right
constitutes irreparable injury.’”) (quoting Davis v. District of Columbia, 158 F.3d 1342, 1346
(D.C. Cir. 1998)); Chaplaincy, 454 F.3d at 305 (“By alleging that Appellees are engaging in
conduct that violates the Establishment Clause, Appellants have satisfied the irreparable injury
prong of the preliminary injunction framework.”). Under this line of authority, Plaintiffs’
allegation of constitutional injury is sufficient to satisfy the irreparable injury requirement for
issuance of a preliminary injunction.
3. Balance of Equities and Public Interest
Finally, the Court finds that Plaintiffs have shown that the public interest and the balance
of hardships weigh in favor of granting injunctive relief. “A party seeking a preliminary
injunction must demonstrate both ‘that the balance of equities tips in [its] favor, and that an
injunction is in the public interest.’” FBME Bank Ltd. v. Lew, 125 F. Supp. 3d 109, 127 (D.D.C.
2015) (quoting Winter, 555 U.S. at 20) (alteration in original). “These factors merge when the
Government is the opposing party.” Id. (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)).
As already established, the Presidential Memorandum is causing Plaintiffs serious
ongoing harms and will cause them further harms in the near future absent an injunction. On this
record, there are no countervailing equities or public interest in precluding transgender service
members from the military that outweigh those harms. Defendants argue that “[t]he public has a
strong interest in national defense.” Defs.’ Mem. at 41. They also argue that the military “is in
the process of gathering a panel of experts” to provide advice and recommendations regarding
“the development and implementation of the policy on military service by transgender
individuals,” and that “[g]ranting Plaintiffs their requested relief would directly interfere with the
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panel’s work and the military’s ability to thoroughly study a complex and important issue
regarding the composition of the armed forces.” Id. at 40–41.
Neither point passes muster. A bare invocation of “national defense” simply cannot
defeat every motion for preliminary injunction that touches on the military. On the record before
the Court, there is absolutely no support for the claim that the ongoing service of transgender
people would have any negative effective on the military at all. In fact, there is considerable
evidence that it is the discharge and banning of such individuals that would have such effects.
The Court also notes that fifteen States have filed an amici brief indicating that they and their
residents will be harmed by the Presidential Memorandum if it is not enjoined. See State Amici
Brief at 13-22. Moreover, the injunction that will be issued will in no way prevent the
government from conducting studies or gathering advice or recommendations on transgender
service. The balance of equities and public interest accordingly weigh in favor of granting
Plaintiffs’ motion.
IV. CONCLUSION
For the reasons set out above, the Court will GRANT-IN-PART and DENY-IN-PART
Defendants’ Motion to Dismiss and GRANT-IN-PART and DENY-IN-PART Plaintiffs’ Motion
for Preliminary Injunction. The Court will grant Defendants’ motion to dismiss Plaintiffs’
claims to the extent they are based on the Sex Reassignment Surgery Directive, as well as
Plaintiffs’ estoppel claim. Defendants’ motion to dismiss is DENIED in all other respects.
Plaintiffs’ motion for preliminary injunction is DENIED with respect to the Sex Reassignment
Surgery Directive. Plaintiffs’ motion for preliminary injunction is GRANTED, however, in that
the Court will preliminarily enjoin enforcement of the Accession and Retention Directives. The
effect of the Court’s Order is to revert to the status quo with regard to accession and retention
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that existed before the issuance of the Presidential Memorandum—that is, the retention and
accession policies established in the June 30, 2016 Directive-type Memorandum as modified by
Secretary of Defense James Mattis on June 30, 2017. An appropriate Order accompanies this
Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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