Questions Remain, Litigation Continues, over Military Service by Transgender Individuals

Questions Remain, Litigation Continues, over Military Service by Transgender Individuals

Legal Sidebari

Questions Remain, Litigation Continues, over
Military Service by Transgender Individuals
July 5, 2018
At present, the ability of openly transgender individuals to enlist and serve in the military, and receive
certain military-funded medical care, remains unclear. Four lawsuits challenging the President’s August
25, 2017, memorandum concerning transgender individuals in the military continue to work their way
through federal courts in the District of Columbia (Doe v. Trump), Maryland (Stone v. Trump), California
(Stockman v. Trump), and Washington (Karnoski v. Trump). While this litigation was underway, the
President issued a second memorandum on March 23, 2018, revoking the first memorandum, and
providing for further policies with respect to transgender persons. The effect of this second memorandum
on these four cases and the legal arguments they raise—including a constitutional challenge to the
President’s first memorandum on Fifth Amendment equal protection grounds—has yet to be definitively
resolved by the courts. This sidebar discusses the procedural background of these lawsuits, the President’s
first and second memoranda, and the issues that may come before the U.S. Court of Appeals for the Ninth
Circuit (Ninth Circuit), which could be the first federal appellate court to determine the constitutionality
of the President’s latest policies on military service by transgender persons.

The President’s First Memorandum

In the August 25, 2017, memorandum, President Trump ordered the Department of Defense (DoD) to
implement three principal directives: 1) to continue prohibiting the accession (i.e., enlisting) of “openly
transgender” individuals in the military indefinitely; 2) to return to a policy that authorized the discharge
of “such individuals”; and 3) to halt military-funded sex-reassignment surgery, “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.” Under the terms of the memorandum, the accession directive would become effective
January 1, 2018, while the latter two directives—sometimes referred to as the “retention” and “sex
reassignment surgery” directives, respectively—were to take effect March 23, 2018.

The memorandum also directed the Secretaries of Defense and Homeland Security (with respect to the
U.S. Coast Guard) to submit an implementation plan for the President’s directives by February 21, 2018,
and stated that, with respect to transgender individuals currently serving in the military, the Secretary of
Defense “shall determine how to address” such personnel, and that “no action may be taken against such
individuals” under the policy set forth in the memorandum until the Secretary made that determination.
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Legal Challenges to the President’s First Memorandum

In separate lawsuits, the plaintiffs—transgender individuals either currently serving in the military or who
wish to join the military—challenged the President’s policy on the grounds that it unconstitutionally
denied them equal protection and due process under the Fifth Amendment, among other claims. In
support of those arguments, the plaintiffs drew attention to the President’s July 26, 2017, statements on
Twitter shortly before issuing the August 25, 2017, memorandum, that “the United States Government
will not accept or allow...Transgender individuals to serve in any capacity in the U.S. Military.” After the
lawsuits were filed, two states formally intervened as co-plaintiffs in two of the four cases—the State of
California in Stockman v. Trump, and the State of Washington in Karnoski v. Trump.

Upon filing the lawsuits, each set of respective plaintiffs sought a preliminary injunction to stop the
military’s implementation of the President’s three directives. By the end of 2017, all four district courts
had granted preliminary injunctions. The district court in Doe v. Trump, for example, which was the first
court to issue an injunction, concluded that the plaintiffs lacked standing to challenge the sex
reassignment surgery directive, but ordered a preliminary injunction as to the accession and retention
directives. The other three district courts subsequently concluded that the plaintiffs in their respective
cases alleged facts distinguishable from Doe v. Trump sufficient to establish standing to challenge the sex
reassignment surgery directive, and granted preliminary injunctions as to all three directives.

Though the language of the injunctions varied, three of the courts enjoined the military from enforcing
any of the three directives in the August 25 memorandum, pending final resolution of the litigation. The
district court in Doe v. Trump phrased its injunction to require the military to “revert to the status quo” by
maintaining the previous administration’s policy on the accession and retention of transgender individuals
in the military, as reflected in a June 30, 2016 memorandum. That memorandum required the military to
permit transgender individuals currently in the military to serve openly, prohibited the military from firing
or denying a service member continued service on the basis of being transgender, and would have begun
the accession of transgender applicants no later than July 1, 2017; however, the current administration
delayed implementation of that policy until January 1, 2018.

After the district courts’ decisions, the government appealed seeking a stay of the preliminary injunctions,
which the Fourth Circuit and the D.C. Circuit denied in December 2017. (The government also filed an
appeal to the Ninth Circuit, but withdrew it before that court issued a ruling.) Thereafter, the Department
of Defense announced that it would comply with federal court orders pending final judicial resolution of
the cases, and began allowing the accession of transgender individuals on January 1, 2018, provided
accession standards were met.

The President’s Second Memorandum

On March 23, 2018, as the litigation was underway, the President issued a second memorandum that
“revoke[s] my memorandum of August 25, 2017” and “any other directive I may have made with respect
to military service by transgender individuals.” This second memorandum directs the Secretaries of
Defense and Homeland Security to “exercise their authority to implement any appropriate policies
concerning military service by transgender individuals,” and expressly referred to policies that Secretary
of Defense James Mattis recommended to the President in a February 22, 2018, memorandum and
accompanying 44-page report.

Specifically, Secretary of Defense Mattis recommended that transgender persons who require or have
undergone gender transition be disqualified from military service; whereas transgender persons who do

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not have a history or diagnosis of gender dysphoria may serve, provided they serve in their biological sex
and are otherwise qualified for service. The accompanying report describes gender dysphoria as “a mental
health condition that can require substantial medical treatment,” involving a “marked incongruence
between one’s own experience/expressed gender and assigned gender, of at least six months duration,”
and which is “associated with clinically significant distress or impairment in social, occupational, or other
important areas of functioning.” The report characterizes individuals with gender dysphoria as a subset of
transgender persons, and states that “transgender status alone is not a condition.”

Notwithstanding the general disqualification of transgender persons diagnosed with gender dysphoria, the
military would allow transgender persons with a history or diagnosis of the condition to serve upon a
showing of one of three exceptions: 1) the individual has been stable for 36 consecutive months in his or
her biological sex prior to accession; 2) the individual is a service member who was diagnosed with
gender dysphoria after entering military service, does not require a change in gender, and remains
deployable within applicable retention standards; or 3) the individual is a service member who had been
diagnosed with gender dysphoria since the previous administration’s policy took effect and prior to the
effective date of this new policy, in which case the individual may serve in the preferred gender and
receive medically necessary treatment for gender dysphoria.

Impact of the President’s Second Memorandum

The President’s second memorandum has prompted a new set of arguments and questions, including the
constitutionality of these latest policies and whether the plaintiffs can challenge the second memorandum
through the current litigation. For example, the government argues that the legal challenges to the first
memorandum are moot, as the second memorandum supersedes it, and constitutes a different policy that
focuses on gender dysphoria rather than transgender status. The plaintiffs, however, argue that because
the second memorandum substantively continues the discriminatory policies of the first memorandum,
they can challenge the second memorandum in the context of the four existing cases.

At this juncture, the first federal district court to have substantively reached some of these issues with
respect to the latest policies—in Karnoski v. Trump—rejected the government’s arguments that the
President’s second memorandum constituted a new and substantially different policy from the first
memorandum, and that the preliminary injunction with respect to the first policy should be dissolved.
Instead, in an April 13, 2018, decision, the court in Washington held that the preliminary injunction was
to remain in place, and enjoined the military from taking any action concerning transgender individuals
“that is inconsistent with the status quo that existed prior to President Trump’s July 26, 2017
announcement.” The court, however, declined to rule on the constitutionality of this second set of policies
at this stage, stating that further fact-finding was needed concerning the military’s deliberations relating to
the 2018 policies. This evidence, the court stated, would be relevant to whether the government’s actions
could survive constitutional review. On June 15, 2018, the court also issued an order denying the
government’s motion to stay the preliminary injunction, and rejected the contention that the injunction
should be narrowed from a nationwide scope to the nine individual plaintiffs. A bench trial is currently
scheduled for April 2019.

The other three federal district courts have not yet ruled on the government’s motions to either dissolve
the preliminary injunctions in light of the second memorandum or to dismiss the plaintiffs’ amended
complaints incorporating the second memorandum, but are likely to do so in the next several months.

The Ninth Circuit’s Forthcoming Decision and Options for Congress

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The Ninth Circuit may be the first federal appellate court to weigh in on the latest iteration of the
military’s transgender policies. Following the Washington district court’s April 13, 2018, decision in
Karnoski, the government filed an appeal of that decision to the Ninth Circuit, and the parties are
presently submitting briefs to the court. Among the issues before the Ninth Circuit, several involve novel
and noteworthy legal questions that could have lasting implication.

First, the Ninth Circuit may address whether or not to lift the preliminary injunction in part or in whole, as
the injunction currently enjoins the military from implementing the 2018 policy nationwide. The
government argues that, at a minimum, the nationwide injunction should be narrowed to preliminarily
enjoin military action only as to the plaintiffs who would not fall into an exception under the new 2018
policy. If the court narrows the scope of the preliminary injunction or lifts it altogether, this would impact
whether and when the military could begin implementing some or all of the policies reflected in the
February 22, 2018, memorandum and report, and could affect transgender individuals who are current and
prospective service members.

Second, in its analysis of the plaintiffs’ Fifth Amendment due process and equal protection claims, the
appeals court may address what level of review courts should apply—rational basis, intermediate, or strict
scrutiny—when evaluating the constitutionality of a government action based on transgender status. The
district court in Karnoski held that transgender status is a suspect class that triggers strict scrutiny—the
most stringent level of judicial review and the same level of review applied to racial classifications. The
other three district courts—in Doe v. Trump, Stone v. Trump, and Stockman v. Trump—held that
intermediate review—the standard applied to sex-based classifications—applies. Meanwhile, the
government argues that the new 2018 policy is no longer based on transgender status, but on gender
dysphoria, and thus, that the court should review the new policies under the most lenient standard—
rational basis review.

Finally, the Ninth Circuit may also address whether, as the government argues, a court should apply a
particularly deferential level of review when assessing the constitutionality of a government action in the
military context, in light of Supreme Court precedent such as Rostker v. Goldberg, discussing the level of
deference courts should accord to military judgments, including when military decisions are challenged
on equal protection grounds. The district court described Rostker as signaling that deference is owed to
“well-reasoned policies” and concluded that the deference question could not be resolved at this juncture
without evidence concerning DoD’s deliberative process regarding its transgender policy. The court
stated that its preliminary injunction was not intended to prevent the military from ever modifying the
previous administration’s policy, but also noted that even if it found that Rostker-type deference was due,
“it would not be rendered powerless to address Plaintiffs’ and Washington’s constitutional claims.”

As courts evaluate the constitutionality of the President’s policies, Congress could introduce legislation
addressing issues related to military service by transgender individuals, pursuant to its powers under
Article 1 Section 8 of the U.S. Constitution to “raise and support armies,” to “provide and maintain a
navy,” and “make rules for the government and regulation of the land and naval forces.” Some legislation
was introduced in the 115th Congress on transgender individuals in the military, such as H.R. 4041 and S.
1820, which would prohibit the termination of a currently serving member of the Armed Forces on the
basis of a member’s gender identity.

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Author Information

Christine J. Back

Legislative Attorney

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