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Procedural deficiencies in Trump transgender military ban addressed, injunction dissolved

By Lorene D. Park, J.D.

Vacating an order denying the government’s motion to dissolve an October 2017 injunction against the Trump administration’s ban on military service by transgender individuals, the D.C. Circuit held that a lower court erred by finding no change in circumstances. To the appeals court, the policy recommended by Secretary of Defense James Mattis in February 2018 and approved by the president in March 2018 took substantial steps to cure procedural deficiencies by creating a panel of military and medical experts and considering new evidence, among other things. The lower court also erred in finding that the Mattis plan was the equivalent of a blanket ban on transgender service. While it continues to bar many transgender persons from joining or serving in the military, it does allow some who were barred under prior standards to join and serve. The appeals court noted that any judicial review concerning the professional judgment of military authorities should be deferential (Doe 2 v. Shanahan, January 4, 2019, per curiam, unpublished).

Military ban. On July 26, 2017, President Trump announced in a series of Twitter posts that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military. . . .” One month later, he issued a memorandum directing his secretary of defense and secretary of homeland security to indefinitely bar accession of transgender individuals into the military and to halt “all use of DOD or DHS resources to fund sex reassignment surgical procedures” except as “necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.”

Prior proceedings. In one of the federal cases challenging the military ban, the district court for the District of Columbia preliminarily enjoined the controversial ban in October 2017 due to the likelihood that the plaintiffs would prevail on the merits of their equal protection challenge. (Injunctions have also been issued by federal courts in California, Minnesota, and Washington.).

After losing several battles in the federal courts and following a report and memo submitted by the defense secretary, Trump revoked that memorandum. In the March 2018 memo, the president also ordered that the secretaries of defense and homeland security “may exercise their authority to implement any appropriate policies concerning military service by transgender individuals.” However, the implementation plan had already been proposed to the president at the time he issued this memo. The lower court in this case summarized the plan as follows: “individuals who require or have undergone gender transition are absolutely disqualified from military service; individuals with a history or diagnosis of gender dysphoria are largely disqualified from military service; and, to the extent that there are any individuals who identify as ‘transgender’ but do not fall under the first two categories, they may serve, but only ‘in their biological sex.’”

Thereafter, the parties in the District of Columbia case filed numerous motions. The government moved to dismiss and to dissolve the injunction on the grounds that the implementation plan changed the circumstances of the case. It also argued that its decisions were owed great deference and that the plaintiffs lacked jurisdiction because they lacked standing and their claims are moot. In an August 2018 opinion the court denied the government’s motions. It also denied the plaintiff’s motion for summary judgment because the facts related to the government’s process in preparing its policy were disputed and affected both the degree of deference owed by the court to the policy decisions and the level of scrutiny to apply to the challenged policy.

Injunction dissolved. The government appealed, and the D.C. Circuit reversed, ordering that the preliminary injunction be vacated without prejudice. The appeals court explained that the merits of the preliminary injunction entered in October 2017 were not properly before the court and the inquiry was limited to whether the government, as the movant, had demonstrated that changed circumstances made the continuation of the injunction inequitable.

Significant change. Here, the appeals court found that it was “clear error to say there was no significant change with respect to at least two aspects of the policy recommended by Secretary of Defense James Mattis in February 2018 and approved by the President in March 2018.” First, the lower court erred in finding that the Mattis Plan was not a new policy but rather implemented policy directives enjoined in October 2017. In the appellate court’s view, the government took substantial steps to cure the procedural deficiencies identified by the lower court, including the creation of a panel of military and medical experts, consideration of new evidence gleaned from the implementation of the policy instituted by then-Secretary of Defense Ash Carter, and a reassessment of the priorities of the group that produced the Carter Policy. Although the parties disputed whether these efforts were independent of the policy announced in Trump’s 2017 memo, it was error for the district court to conclude that the Mattis Plan was foreordained.

Not a blanket transgender ban. Second, the lower court erred in finding that the Mattis Plan was the equivalent of a blanket ban on transgender service. Although the plan continues to bar many transgender persons from joining or serving in the military, it does allow some who were barred under the military’s standards prior to the Carter Policy to join and serve, explained the appeals court. The Mattis Plan, for example, has a reliance exemption allowing some transgender service members to continue to serve and receive gender transition-related medical care. Also, while the plaintiffs argued that the exclusion of those who have gender dysphoria or who won’t serve in their biological sex constitutes a blanket ban (arguing as if all transgender individuals either have gender dysphoria or transition to their preferred gender), nothing supported that definition of being transgender. Indeed, the reports in the record repeatedly stated that not all transgender persons seek to transition or have dysphoria. Also, the panel of experts convened by Secretary Mattis observed that some transgender individuals have served or are serving with distinction under the standards for their biological sex.

Review must be appropriately deferential. Finally, while acknowledging that military interests do not always trump other considerations, the D.C. Circuit explained that the Constitution does vest the “‘complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force’ exclusively to the legislative and executive branches.” Thus, any judicial review must be “appropriately deferential” in recognition of the fact that the Mattis Plan concerned the composition and internal administration of the military.

The appeals court also noted that the military has substantial arguments for why the Mattis Plan complies with equal protection principles. “Although today’s decision is not a final determination on the merits, we must recognize that the Mattis Plan plausibly relies upon the ‘considered professional judgment’ of ‘appropriate military officials,’ and appears to permit some transgender individuals to serve,” said the appeals court, finding that public interest weighed in favor of dissolving the injunction.

Because the opinion is not published, the clerk was directed by the court to withhold issuance of the mandate for seven days pending any petition for rehearing.