Employment Law Daily Injunction preventing implementation of ban on military service by transgender individuals remains in effect
Wednesday, April 18, 2018

Injunction preventing implementation of ban on military service by transgender individuals remains in effect

By Kathleen Kapusta, J.D.

The nationwide preliminary injunction issued last December preventing the military from implementing President Trump’s ban on military service by openly transgender people will remain in effect, a federal district court in Washington announced, finding that each of the claims raised by the plaintiffs and the State of Washington remains viable. Further, said the court, “because transgender people have long been subjected to systemic oppression and forced to live in silence, they are a protected class” and thus any attempt to exclude them from military service will be subject to strict scrutiny. Granting in part and denying in part cross-motions for summary judgment, the court explained that the case continues forward on the issue of whether the ban is well-supported by evidence and entitled to deference, or whether it fails as an impermissible violation of constitutional rights. The court also declined to dismiss President Trump from the case, allowing claims for declaratory relief to go forward against him (Karnoski v. Trump, April 13, 2018, Pechman, M).

Following up his July 2017 Twitter announcement that the United States would no longer “accept or allow” transgender people “to serve in any capacity in the U.S. military,” President Trump issued a Presidential Memorandum in August directing the Secretaries of Defense and Homeland Security to return to an earlier policy excluding transgender service members. The Memorandum authorized the discharge of openly transgender service members, prohibited their accession, prohibited the use of DOD and DHS resources to fund “sex reassignment” surgical procedures, and ordered the Defense Secretary to submit a plan implementing both its general policy and its specific directives.

In response, the Secretary delivered the Implementation Plan. In in a 2018 Presidential Memorandum, Trump confirmed receipt of the Plan and purported to revoke his 2017 Presidential Memorandum.

Preliminary injunction. In the meantime, the plaintiffs, nine transgender individuals and three organizations, challenged the constitutionality of the ban as set forth in the Twitter announcement and the 2017 Memorandum. In November 2017, the State of Washington intervened in the lawsuit. In December 2017, the court issued the nationwide preliminary injunction barring the defendants from “taking any action relative to transgender individuals that is inconsistent with the status quo that existed prior to President Trump’s July 26, 2017, announcement.” Both parties subsequently filed cross-motions for summary judgment.

Mootness. According to the plaintiffs, summary judgment is proper because the ban is unsupported by any constitutionally adequate government interest as a matter of law, and therefore it violates equal protection, substantive due process, and the First Amendment. The defendants, however, argued that the plaintiffs’ and Washington’s challenges were moot because the policy set forth in the 2017 Memorandum was revoked and replaced by that in the 2018 Memorandum. Disagreeing, the court found the 2018 Memorandum and Implementation Plan did not substantively rescind or revoke the ban, but instead threatened the very same violations that caused it and other courts to enjoin the ban in the first place.

Serve “in their biological sex.” Observing that the 2018 Implementation Plan prohibits transgender people—including those who have neither transitioned nor been diagnosed with gender dysphoria—from serving, unless they are “willing and able to adhere to all standards associated with their biological sex,” the court explained that requiring transgender people to serve in their “biological sex” does not constitute “open” service in any meaningful way, and cannot reasonably be considered an “exception” to the ban. “Rather,” said the court, “it would force transgender service members to suppress the very characteristic that defines them as transgender in the first place.”

Standing. Next, the court found that the plaintiffs did not lack standing to challenge the ban. Two of the individual plaintiffs have “taken clinically appropriate steps to transition” and would be excluded from acceding under the Plan; one does not currently serve openly, but was intending to come out and transition surgically before the Twitter announcement, and thus the ban unambiguously subjects her to discharge should she seek to do either; and five have been diagnosed with gender dysphoria and likewise would be subject to discharge under the ban. In addition, the court pointed out, the ban already has denied them the opportunity to serve in the military on the same terms as others; has deprived them of dignity; and has subjected them to stigmatization, which they each detailed through affidavits. And because each of the individual plaintiffs has standing, the court found that so too did the organizations they represent.

As to the State of Washington, in addition to diminishing the number of eligible members for the National Guard, the ban threatens its ability to protect its residents and natural resources in times of emergency and assure its residents that it will act to protect them from “the political, social, and moral damage of discrimination.”

Constitutional violations. Before turning to the plaintiffs’ contention that the ban violates equal protection, substantive due process, and the First Amendment, the court determined that transgender people are a suspect class. The history of discrimination and systemic oppression of transgender people in the United States is long and well-recognized, and it is unrelated to their ability to perform and contribute to society, said the court. Further, transgender people have “immutable” and “distinguishing characteristics that define them as a discrete group,” as experts agree that gender identity has a “biological component,” and there is a medical consensus that gender identity is deep-seated, set early in life, and impervious to external influences. Moreover, despite increased visibility in recent years, transgender people as a group lack the relative political power to protect themselves from wrongful discrimination. Thus, said the court, the ban must satisfy the most exacting level of scrutiny if it is to survive. Accordingly, it granted summary judgment to the plaintiffs and Washington as to the applicable level of scrutiny.

Deference. Turning to the defendants’ claim that considerable deference is owed to the President and the DOD in making military personnel decisions, the court observed that the ban—as set forth in President Trump’s Twitter announcement and 2017 Memorandum—was not owed deference because it was not supported by “any evidence of considered reason or deliberation.” However, now that the specifics of the ban have been further defined in the 2018 Memorandum and the Implementation Plan, the court found that whether it owes deference to the ban “presents a more complicated question.” Finding an unresolved question of fact on this issue, the court noted that the defendants’ claims and evidence regarding their justifications for the ban were presented to it only recently, and the plaintiffs and Washington have not yet had an opportunity to test or respond to these claims. On the present record, the court could not determine whether the DOD’s deliberative process—including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon—is of the type to which it typically should defer.

Accordingly, the court denied summary judgment as to the level of deference due. But even in the event it were to conclude that deference is owed, it would not be rendered powerless to address the plaintiffs’ and Washington’s constitutional claims. Indeed, said the court, the defendants’ “claimed justifications for the ban—to promote ‘military lethality and readiness’ and avoid ‘disrupt[ing] unit cohesion, or tax[ing] military resources’ — are strikingly similar to justifications offered in the past to support the military’s exclusion and segregation of African American service members, its ‘Don’t Ask, Don’t Tell’ policy, and its policy preventing women from serving in combat roles.”

Constitutional violations. Noting that whether the defendants satisfied their burden of showing the ban is constitutionally adequate necessarily turns on facts related to their deliberative process, the court found that these facts were not yet before it and, for the same reasons it could not grant summary judgment as to the level of deference due at this stage, it could not reach the merits of the alleged constitutional violations. Accordingly, it denied summary judgment as to the plaintiffs’ and Washington’s equal protection, due process, and First Amendment claims.

Declaratory relief. As to the defendants’ contention that the court was without jurisdiction to impose injunctive or declaratory relief against President Trump in his official capacity, the plaintiffs and Washington did not oppose summary judgment regarding injunctive relief, but argued that declaratory relief against the President was proper. Observing that it was aware of no case holding that the President is immune from declaratory relief, the court found that not only did it have jurisdiction to issue declaratory relief against the President, but this case presented a “most appropriate instance” for such relief.

Specifically, the ban was announced by the President on Twitter and was memorialized in the 2017 and 2018 Presidential Memorandums, which were each signed by him. While his Twitter announcement suggested he authorized the ban “[a]fter consultation with [his] Generals and military experts,” the defendants to date have failed to identify even one general or military expert he consulted, despite having been ordered to do so repeatedly. Indeed, said the court, the only evidence concerning the lead-up to his Twitter announcement revealed that military officials were entirely unaware of the ban and that the abrupt change in policy was “unexpected.” Consequently, the court granted the defendants’ motion for partial summary judgment with regard to injunctive relief and denied the motion with regard to declaratory relief.

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