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Doe v. Shanahan

United States Court of Appeals, District of Columbia Circuit

March 8, 2019

Jane Doe 2, et al., Appellees
v.
Patrick M. Shanahan, in his official capacity as Acting Secretary of Defense, et al., Appellants

          Argued December 10, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-01597)

          Brinton Lucas, Counsel to the Assistant Attorney General, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Hashim M. Mooppan, Deputy Assistant Attorney General, Marleigh D. Dover, and Tara S. Morrissey, Attorneys.

          Jennifer Levi argued the cause for appellees. With her on the brief were Paul R.Q. Wolfson, John T. Byrnes, Kevin M. Lamb, Alan E. Schoenfeld, Shannon P. Minter, and Christopher Stoll.

          Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Robert E. Toone, Assistant Attorney General, Janet T. Mills, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Maine, Brian E. Frosh, Attorney General for the State of Maryland, Lori Swanson, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Minnesota, Gurbir S. Grewal, Attorney General, Office of the Attorney General for the State of New Jersey, Hector Balderas, Attorney General, Office of the Attorney General for the State of New Mexico, Barbara Underwood, Attorney General at the time the brief was filed, Office of the Attorney General for the State of New York, Joshua H. Stein, Attorney General, Office of the Attorney General for the State of North Carolina, Xavier Becerra, Attorney General, Office of the Attorney General for the State of California, George Jepsen, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Connecticut, Matthew P. Denn, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Delaware, Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, Russell A. Suzuki, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Hawaii, Lisa Madigan, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Illinois, Tom Miller, Attorney General, Office of the Attorney General for the State of Iowa, Peter F. Kilmartin, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Rhode Island, Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General for the State of Vermont, Mark R. Herring, Attorney General, Office of the Attorney General for the Commonwealth of Virginia, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, and Josh Shapiro, Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, were on the brief for amici curiae The States of Massachusetts, et al. in support of appellees and affirmance of the District Court decision.

          Peter C. Renn, Diana K. Flynn, and Tara L. Borelli were on the brief for amici curiae National Center for Transgender Equality and Other Advocacy Organizations in support of plaintiffs-appellees and affirmance.

          Andrew J. Ehrlich, George W. Kroup, Eric A. Felleman, and Craig A. Benson were on the brief for amici curiae American Veterans Alliance, et al. in support of plaintiffs-appellees and in support of affirmance.

          Eamon P. Joyce, John T. Hebden, Christopher A. Eiswerth, and Robert S. Chang were on the brief for amici curiae Asian American Legal Defense and Education Fund, et al. in support of plaintiffs-appellees.

          Cynthia Cook Robertson and Suzanne B. Goldberg were on the brief for amici curiae The National Organization for Women Foundation, et al. in support of plaintiffs-appellees.

          Douglas H. Hallward-Driemeier, Irina Finkel, and Douglas E. Brayley were on the brief for amici curiae The Organization of Historians and 47 Historians of the Military, National Security, and Foreign Relations supporting plaintiffs-appellees.

          Elizabeth B. Wydra and Ashwin P. Phatak were on the brief for amicus curiae Constitutional Accountability Center in support of plaintiffs-appellees.

          Steven G. Thompson Reed was on the brief for amici curiae The Service Women's Action Network and Other Veterans Service Organizations and Veterans Advocacy Groups in support of affirmance.

          Harold Hongju Koh and Phillip Spector were on the brief for amici curiae Retired Military Offices and Former National Security Officials in support of plaintiffs-appellees.

          Daniel S. Harawa, Sherrilyn A. Ifill, and Janai S. Nelson were on the brief for amicus curiae NAACP Legal Defense & Educational Fund, Inc. in support of appellees and affirmance.

          Devi M. Rao was on the brief for amici curiae American Medical Association and Seven Other HealthCare Organizations in support of plaintiffs-appellees and affirmance.

          Stuart F. Delery was on the brief for amicus curiae The Trevor Project in support of plaintiffs-appellees and affirmance.

          Susan Baker Manning and Stephanie Schuster were on the brief for amici curiae Vice Admiral Donald C. Arthur, USN (Ret.) et al. in support of plaintiffs-appellees and affirmance of the District Court decision.

          Before: Griffith and Wilkins, Circuit Judges, and Williams, Senior Circuit Judge.

          WILKINS, Circuit Judge, concurring:

         "[T]he passage of time frequently brings about changed circumstances - changes in the nature of the underlying problem, changes in governing law or its interpretation by the courts, and new policy insights - that warrant reexamination of the original judgment." Horne v. Flores, 557 U.S. 443, 448 (2009). As we described in the Judgment, the District Court's finding of no changed circumstances and its denial of the motion to dissolve the preliminary injunction was error. I write separately to elaborate on why I believe that was the case.

         First, we must review some history and background.

         I.

         At issue in this case is the regulation of military service by transgender persons. As noted in the report of the Transgender Military Service Commission chaired by former Surgeon General Jocelyn Elders, a prevalent theme in this area is that "regulatory terminology that references transgender identity is inconsistent." J.A. 753. Thus, to avoid confusion, it is critically important to define terms and characterize military regulations carefully and precisely.

         Based on the record, transgender persons are "individuals who identify with a gender different from the sex they were assigned at birth." J.A. 606; see also J.A. 263. Thus, while a transgender woman may have been assigned the male sex at birth, she nonetheless identifies with the female gender. Similarly, a transgender man was assigned the female sex at birth but identifies with the male gender.

         As explained by amici American Medical Association and seven other healthcare organizations, "[e]very person has a gender identity, which cannot be altered voluntarily or necessarily ascertained immediately after birth." AMA Amicus Br. 6. A person "communicates gender identity to others through behavior, clothing, hairstyles, voice, or body characteristics," id., and the extent to which transgender individuals express their gender identity varies from person to person. As found by the RAND Corporation in a report for Former Secretary of Defense Ash Carter, some transgender persons express their gender identity though "transitioning," which is "the act of living and working as a gender different from that assigned at birth." J.A. 606 (emphasis added). But according to the information that we have in the record, only "[a] subset of transgender individuals may choose to transition . . ." J.A. 606. As explained in the Transgender Military Service Commission report:

Being transgender does not mean that one has already transitioned to a different gender, or that such a transition will occur in the future. It means recognizing that the gender one has always had does not match the physical gender that was assigned at birth. The transgender community includes people who have already transitioned to the other gender, those who have not yet transitioned but who plan to do so, those who identify with the other gender but do not wish to transition, and others.

J.A. 752.

         Some, but not all, transgender persons develop gender dysphoria, which manifests as stress and anxiety caused by the incongruence between the sex assigned to the person at birth and the person's preferred gender identity. J.A. 622-23. Gender dysphoria is recognized by the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), and is often treated with "psychotherapy, hormone therapy, surgery, and changes to gender expression and role (i.e., how people present themselves to the world . . .)." J.A. 623. Thus, many transgender persons with gender dysphoria require medical treatment, including transitioning to their preferred gender; however, "[n]ot all [transgender persons diagnosed with gender dysphoria] will prefer or need all or any of those options." Id.

         Prior to 2015, the Department of Defense (DoD) effectively banned all transgender persons from either joining or remaining in the military. J.A. 275; J.A. 734; J.A. 784. These accession and retention restrictions were enforced through medical standards that precluded applicants from joining the military if they had "defects of the genitalia" including but not limited to change of sex, and through mental health standards that disqualified persons with any history of certain psychosexual conditions, including "transsexualism" and "transvestism." J.A. 754. Thus, all transgender persons were essentially banned from military service, even if they had never undergone sex-reassignment surgery, even if they did not have gender dysphoria, and even if they had not transitioned to their preferred gender and were willing to serve pursuant to the military standards applicable to the sex assigned to them at birth.

         Under the pre-2015 regime, the only thing that mattered to exclude a person from military service was the person's transgender status: that the person did not identify with the gender assigned to them at birth.

         Things began to change in 2015. On July 28, 2015, then-Secretary of Defense Ash Carter issued a memorandum to the secretaries of the military departments directing that "[e]ffective as of July 13, 2015, no Service member shall be involuntarily separated or denied reenlistment or continuation of active or reserve service on the basis of their gender identity, without the personal approval of the Under Secretary of Defense for Personnel and Readiness." J.A. 709. The memorandum further ordered a working group composed of senior representatives from each of the Military Departments, Joint Staff, and relevant components from the Office of the Secretary of Defense to formulate policy options for the DoD regarding the military service of transgender servicemembers. The working group commissioned the RAND Corporation's National Defense Research Institute to conduct a study on the impact of permitting transgender servicemembers to serve openly.

         The RAND Corporation subsequently issued the aforementioned 91-page report ("RAND Report") that found no evidence that allowing transgender individuals to serve would have any effect on "unit cohesion," and concluded that any related costs or impacts on readiness would be "exceedingly small," "marginal," or "negligible." J.A. 597-708. Based on all of the information it collected, the working group unanimously concluded that transgender people should be allowed to serve openly in the military. The group not only concluded that allowing transgender people to serve would not significantly affect military readiness or costs but also found that prohibiting transgender people from serving would undermine military effectiveness and readiness. Specifically, prohibiting transgender people from serving would exclude qualified individuals on a basis that has no relevance to one's fitness to serve and create unexpected vacancies requiring expensive and time-consuming recruitment and training of replacements.

         On June 30, 2016, Secretary Carter issued Directive-Type Memorandum 16-005 ("Carter Policy"), which announced "that service in the United States military should be open to all who can meet the rigorous standards for military service and readiness," and set forth a policy permitting service by qualified transgender individuals. J.A. 586. The Carter Policy took immediate effect with respect to retention, allowing current transgender servicemembers to serve under "the same standards" as cisgender (non-transgender) servicemembers and prohibiting the discharge of otherwise qualified servicemembers "solely on the basis of their gender identity." J.A. 588. The Carter Policy also allowed transgender servicemembers diagnosed with gender dysphoria to transition to their preferred gender if they so desired. J.A. 275. Upon joining the military, each servicemember is assigned a "gender marker" in the Defense Enrollment Eligibility Reporting System (DEERS), and the servicemember must follow all sex-based military regulations pertinent to that gender marker. J.A. 1045. Thus, under the Carter Policy, transgender servicemembers with a gender dysphoria diagnosis became eligible to change their gender marker in DEERS, and with this transition, begin following the sex-based military regulations for their preferred gender rather than for their biological sex. The sex-based standards and procedures that vary by gender include (1) uniform, grooming, physical fitness, body fat, and drug testing standards; (2) requirements for separate berthing, bathroom and shower facilities; and (3) different policies regulating military training and sports, such as boxing. J.A. 296-98; J.A. 1045.

         The Carter Policy directed DoD to update its standards for persons entering the military (a process formally referred to as "accession") by July 1, 2017. Secretary of Defense James Mattis subsequently deferred the July 1, 2017 accession deadline to January 1, 2018 so that the services could review their accession plans and provide input on the impact to the readiness and lethality of the armed forces. J.A. 426.

         On July 26, 2017, President Donald J. Trump issued a statement via Twitter announcing that "the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military." J.A. 124. A formal Presidential Memorandum ("2017 Presidential Memorandum") followed on August 25, 2017. J.A. 406-07. The 2017 Presidential Memorandum reversed the Carter Policy. President Trump explained that "[s]hortly before President Obama left office, . . . his Administration dismantled the Departments' established framework by permitting transgender individuals to serve openly in the military, authorizing the use of the Departments' resources to fund sex-reassignment surgical procedures, and permitting accession of such individuals after July 1, 2017 [later extended to January 1, 2018]." J.A. 406. President Trump further declared:

In my judgment, the previous Administration failed to identify a sufficient basis to conclude that terminating the Departments' longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year's policy change would not have those negative effects.

         J.A. 406. Thus, President Trump directed Secretary Mattis "to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above." J.A. 406. President Trump ordered Secretary Mattis to submit a plan for implementing the policy directives of the 2017 Presidential Memorandum by February 2018. J.A. 406-07.

         By ordering a return to pre-Carter policies, President Trump effectively reinstated the prior blanket ban on accession and retention in military service by all transgender persons.

         The President specified that the ban on transgender accession would go into effect immediately and remain in place "until such time as the Secretary of Defense, after consulting with the Secretary of Homeland Security, provides a recommendation to the contrary that I find convincing." J.A. 406. The President also ordered an immediate stop to the "use of DoD or DHS resources to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." J.A. 406. Other than the halt to sex-reassignment funding, the President did not make the transgender ban immediately effective with respect to retention standards, which would have led to the immediate discharge of transgender servicemembers. Instead, President Trump instructed Secretary Mattis to "determine how to address transgender individuals currently serving in the United States military" and ordered that "no action may be taken against such individuals" until that study was complete. J.A. 407.

         On October 30, 2017, the District Court issued a preliminary injunction enjoining the implementation of the 2017 Presidential Memorandum, the effect of which was to reinstate the Carter Policy. As the District Court found, and as we agreed in denying a motion to stay the preliminary injunction, a number of factors "strongly suggest[ed]" that Plaintiffs were likely to succeed on their Fifth Amendment due process claim. Doe 1 v. Trump, 2017 WL 6553389, at *1 (D.C. Cir. Dec. 22, 2017). Those factors included the breadth of the exclusion (virtually a complete ban) ordered by the Memorandum, the unusual and abrupt initial announcement of the ban, the failure to provide any supporting facts for the ban, and the recent professional judgment by the military, after a thorough study, that the prior ban should be lifted. Id. Given that intemperate contemporaneous statements by policymakers, departures from normal procedures, and adoption of policies unsupported or contrary to data can be considered evidence that invidious discrimination was "a motivating factor" in the decision, Village of Arlington Heights v. Metro. Hou. Dev. Corp., 429 U.S. 252, 266-68 (1977), the course of events leading up to the 2017 Presidential Memorandum had more than a whiff of the stench of arbitrariness and of a "bare . . . desire to harm a politically unpopular group." U.S. Dept. of Agric. v. Moreno, 413 U.S. 528, 534 (1973).

         II.

         But that is not the end of the story. In February 2018, as ordered by the 2017 Presidential Memorandum, Secretary Mattis presented a memorandum to the President that proposed a policy regarding transgender military service ("the Mattis Plan"). J.A. 263-65. The reasoning underlying the Mattis Plan is spelled out in a 44-page report prepared by a panel of senior military and civilian experts that was also submitted to the President in February 2018 ("the Panel Report"). J.A. 268-312. The Panel Report concludes that transgender persons with gender dysphoria or who have undergone or will require gender transition undermine the military. According to the Panel Report, these servicemembers are fundamentally incompatible with the military's mental health standards, physical health standards, and sex-based standards and are a detriment to military readiness and unit cohesion. The Panel Report likens gender dysphoria to conditions such as "bipolar disorder, personality disorder, obsessive-compulsive disorder, suicidal behavior, and even body dysmorphic disorder." J.A. 288. It concludes that individuals with gender dysphoria are more likely to have other mental health conditions and substance abuse problems, and to commit suicide. J.A. 289. The Panel Report also states that these individuals impose "disproportionate costs" on the military, J.A. 309, and repeatedly cites "uncertainty" in the medical field about these individuals as a reason to urge that the military "proceed with caution," J.A. 274.

         The Mattis Plan has three key planks. First "[t]ransgender persons without a history or diagnosis of gender dysphoria, who are otherwise qualified for service, may serve, like all other Service members, in their biological sex." J.A. 265. "Biological sex" is not defined, but it appears to mean that the DEERS gender marker for the servicemember is the same as the sex assigned to the person at birth based on a physical examination of the genital organs. J.A. 299. "Serving" in one's biological sex is also not defined, but it appears to mean that the transgender servicemember must follow all sex-based military regulations pertinent to the person's DEERS gender marker. J.A. 273-74. (These critical points should be fleshed out in further proceedings.) The Mattis Plan's panel of experts says that this particular recommendation is consistent with the Carter Policy, which also required transgender persons without gender dysphoria to serve in their biological sex, J.A. 300, and that there are transgender persons who "have served, and are serving, with distinction under the standards for their biological sex," J.A. 274.

         Second, transgender persons who require or have undergone gender transition are disqualified from service, so they may not join, and may not be retained in, the military. J.A. 273. (However, the Mattis Plan includes a grandfather clause, which exempts current servicemembers who were diagnosed with gender dysphoria and began their transition pursuant to the Carter Policy and prior to the effective date of the Mattis Plan. J.A. 264; J.A. 273-74; J.A. 311.)

         Third, transgender persons are disqualified from accession or retention in military service if they have "a history or diagnosis of gender dysphoria and require, or have already undertaken, a course of treatment to change their gender." J.A. 264; see also J.A. 300. (As above, the grandfather clause in the Mattis Plan exempts current servicemembers who were diagnosed with gender dysphoria and began their transition pursuant to the Carter Policy and prior to the effective date of the Mattis Plan. J.A. 264; J.A. 273-74; J.A. 311.) Thus, unless grandfathered, a transgender person with a history or current diagnosis of gender dysphoria can remain in the military only if the person is willing and able to serve in his or her biological sex. Similarly, a transgender person with a current diagnosis of gender dysphoria cannot join the military, and a transgender person with a history of gender dysphoria can join only if the person can "demonstrate 36 consecutive months of stability (i.e. absence of gender dysphoria)," has not transitioned, and is willing and able to serve in his or her biological sex. J.A. 273.

         On March 23, 2018, the President issued a 2018 Presidential Memorandum, which stated that he "revoke[s]" his 2017 Presidential Memorandum, "and any other directive [he] may have made with respect to military service by transgender individuals." J.A. 261. The President ordered that "[t]he Secretary of Defense, and the Secretary of Homeland Security, with respect to the U.S. Coast Guard, may exercise their authority to implement any appropriate policies concerning military service by transgender individuals." J.A. 261. That same day, the government moved to dissolve the October 2017 injunction so that the military could implement the Mattis Plan. On August 6, 2018, the District Court found that the Mattis Plan had not "genuinely changed" the circumstances in the case, J.A. 94, and thus denied the motion to dissolve its injunction, J.A. 64-98.

         III.

         As stated earlier, consistency and clarity in terminology and definitions are important, and that was a key problem below.

         The District Court ruled that by definition, transgender persons "do not identify or live in accord with their biological sex." J.A. 69; J.A. 91. Plaintiffs urged this definition upon the District Court, just as they urge it upon us, by arguing that all transgender persons undergo a gender transition, Appellee Br. 19. The problem is that there is no record support for this definition of the term. As noted earlier, everything in the record, from the Elders Report, the RAND Study, the Carter Policy and the Mattis Plan consistently defines a transgender person as a person who does not "identify" with his or her biological sex. Indeed, Plaintiffs' own expert witness, J.A. 1056, and the American Medical Association, amici in support of Plaintiffs, AMA Amicus Br. 3, define transgender in terms of identifying with, rather than identifying with and living in accord with, one's preferred gender.

         This subtle shift in definition by Plaintiffs is significant, because it provides the lynchpin for their argument that the Mattis Plan was no different than the policy of the 2017 Presidential Memorandum. Plaintiffs, and the District Court, swept aside all distinctions in the various elements of the Mattis Plan by characterizing it as a monolith. Under this construct, the Mattis Plan is a total ban on service by transgender persons because a transgender person cannot "liv[e] in accord with their gender identity" while serving in the military according to their biological sex. Appellee Br. 21; see also J.A. 69; J.A. 91. In this paradigm, the Mattis Plan is a blanket transgender ban because it does not permit each and every transgender person to serve in his or her preferred gender; unless grandfathered, the Mattis Plan requires that transgender persons serve in accord with their biological sex.

         Plaintiffs acknowledge that the term transgender is often defined to include persons who identify with another gender but who do not wish to live or work in accordance with that preferred gender, but they blithely dismiss that definition with the argument that any "broader meaning [of transgender] is irrelevant to this case." Appellee Br. 23. How so? Plaintiffs want us to ignore the fact that they did not present evidence showing that all transgender persons necessarily "live" or "work" in their preferred gender rather than their biological sex. There were no findings below describing what it means to "serve in one's biological sex," let alone findings that all transgender persons either currently serving or applying to join the military must suppress who they are to "serve in their biological sex" and are unwilling or unable to do so. Instead, Plaintiffs want us to adopt the position that transgender persons who desire to serve in their biological sex are not really transgender, at least for the purpose of this lawsuit. But we cannot simply substitute Plaintiffs' ipse dixit for evidence.

         In sum, the record - at least at this point - shows that the Mattis Plan does not exclude all transgender persons serving in the military (unless grandfathered), as Plaintiffs maintain and as the District Court found. Rather, the record supports the conclusion that the Mattis Plan excludes (unless grandfathered) transgender persons who desire to express their gender identity by transitioning - changing their gender marker in DEERS - and thereby serving in accordance with all of the military requirements for their preferred gender. To the extent that there are transgender servicemembers who desire to serve under the standards for their biological sex, under the Mattis Plan, they may identify as they wish with their preferred gender while complying with the service requirements applicable to the DEERS gender marker for their biological sex.

         None of this is to say that the Mattis Plan is not a hardship for transgender servicemembers who wish to transition. Nor is this dispositive of whether the Mattis Plan targets only transgender persons or is instead facially neutral. But it does mean that the Mattis Plan does not target all transgender persons, at least on this record, and it was therefore error to conclude that the Mattis Plan was not a substantive change from the 2017 Presidential Memorandum.

         IV.

         As we observed in the Judgment, the separation of powers principles upon which our Constitution is based requires that courts defer to the reasoned, professional analysis of Congress and the Executive on matters strictly within the realm of military expertise. This is so because the Constitution vests authority over the armed forces with Congress and the Executive, because military policies devised by the political branches are accountable to the electorate while those imposed by judges are not, and because, generally speaking, judges do not have competence in matters of military personnel and training. See generally Rostker v. Goldberg, 453 U.S. 57, 77-79 (1981); Goldman v. Weinberger, 475 U.S. 503, 507-10 (1986).

         But that does not mean that Congress and the Executive have a wholesale license to discriminate in matters of military policy. Over forty years ago, the Supreme Court struck down a statute that required married female servicemembers to prove the financial dependency of their husbands in order to receive increased housing and healthcare benefits, while married male servicemembers automatically received the increased benefits, even if their wives were not financially dependent upon them. Frontiero v. Richardson, 411 U.S. 677, 678-79 (1973). The statute, justified as promoting "administrative convenience," was a classification based on sex and therefore subject to heightened scrutiny, the same as any non-military, sex-based statute or policy. Id. at 688-89. To satisfy heightened scrutiny, the Court demanded "concrete evidence" that the law promoted the claimed justification of administrative convenience, and finding none, held that the statute violated due process protections. Id. at 689-91.

         There was no deference in Frontiero to the expertise or judgment of the Congress that enacted the law or of the military officials who administered it. The facially discriminatory military decree in Frontiero was simply struck down.

         Plaintiffs argue that transgender persons are a suspect class for due process and equal protection purposes, that the Mattis Plan facially discriminates against transgender persons, and citing Frontiero, that heightened scrutiny is appropriate. Appellee Br. 29-33. The government responds that transgender persons are not a suspect class, that the Mattis Plan does not target transgender persons, and that even if it did, it should not receive heightened scrutiny because policies strictly of a military nature can never be subject to heightened scrutiny. Appellant Br. 19-23; Reply Br. 9-15. The government, citing our opinion in Goldman, argues that the only reason heightened scrutiny was applied in Frontiero was because the statute involved personnel benefits and was therefore not "purported to be a congressional judgment on a uniquely military matter." Goldman v. Sec'y of Defense, 734 F.2d 1531, 1537 (D.C. Cir. 1984).

         The government thus has a point, but we also observed in Goldman that not every infringement of a constitutional right can be judged equally, distinguishing between the "freedom to believe" in one's religion, which is "absolute," and the "freedom to act" in accordance with one's religion, which is "regulable for a permissible reason, provided that the regulation is not unduly restrictive." Id. at 1540-41. It would follow that a military policy prohibiting a servicemember from stating his adherence to Jewish beliefs would receive more scrutiny than a military policy restricting the wearing of a yarmulke in observance of that faith. Similarly, we have stated that even in the military context, "[c]lassifications based on race or religion, of course, would trigger strict scrutiny," Steffan v. Perry, 41 F.3d 677, 689 n.9 (D.C. Cir. 1994) (en banc), so we presumably would give more scrutiny to a military policy that permits the wearing of any religious headgear except yarmulkes than we would give to a neutral policy that restricts all religious headgear.

         Since Frontiero, facially discriminatory military policies have been upheld only when there was a showing that the two classes of individuals were not truly "similarly situated" or when the discrimination was not against members of a suspect class. See Schlesinger v. Ballard, 419 U.S. 498, 508-09 (1975) (distinguishing Frontiero and upholding tenure statute that differentiated between male and female naval officers because it applied only in those circumstances where men and women were not similarly situated); Rostker, 453 U.S. at 77-79 (upholding sex-based draft-registration statute aimed at developing the pool of potential combat troops, where there was no challenge to the then-existing exclusion of women from combat, and thus the policy was "not invidious, but rather realistically reflect[ed] the fact that the sexes [were] not similarly situated"); Steffan, 41 F.3d at 684 n.3 (no heightened scrutiny of Naval Academy policy prohibiting attendance of homosexuals because homosexuals were not a suspect class under the unchallenged, then-existing military regulations criminalizing homosexual conduct - reasoning that is untenable after Lawrence v. Texas, 539 U.S. 558, 578-79 (2003), which struck down a state statute criminalizing consensual homosexual sodomy). But cf. Trump v. Hawaii, 138 S.Ct. 2392, 2419 (2018) (noting that in Fiallo v. Bell, 430 U.S. 787 (1977), the Court upheld an immigration statute that included a "'categorical' entry classification that discriminated on the basis of sex and legitimacy").

         Furthermore, most constitutional challenges to military laws and regulations have involved policies that were facially neutral. See, e.g., Greer v. Spock, 424 U.S. 828, 839-40 (1976) (regulations restricting partisan political speeches, demonstrations, and literature distribution were "politically neutral," and there was no claim that the military had acted "irrationally, invidiously, or arbitrarily"); Goldman, 475 U.S. at 513 (Stevens, J., concurring) (uniform regulation was "based on a neutral, completely objective standard - visibility"); In re Navy Chaplaincy, 738 F.3d 425, 430 (D.C. Cir. 2013) (personnel policies for promoting chaplains were "facially neutral" and there was "no showing of intent to discriminate" based upon religion). At a minimum, the observation that the military policy was facially neutral in each of those cases demonstrates that the presence or absence of neutrality must have some relevance to the analysis. Cf. Hawaii, 138 S.Ct. at 2417-18 (in resolving constitutional challenge to a Presidential Proclamation in the analogous context of national security, the Court's first step was to determine that the Proclamation was facially neutral). Even when dealing with facially neutral policies, Congress and the Executive receive deference only where military policies are based upon the "considered professional judgment" of "appropriate military officials" and only after finding that the policies "reasonably and evenhandedly regulate" the matter at issue, Goldman, 475 U.S. at 509-10; see also Rostker, 453 U.S. at 68 (court will not substitute its "own evaluation of evidence for a reasonable evaluation by the Legislative Branch").

         The point here is that determining the correct standard of review for military policies, and then properly applying it, is a complex venture. In Rostker, the Court declined the Government's invitation to declare that rational basis scrutiny, rather than heightened scrutiny, necessarily applies to all military policies, even when the policy includes a facially discriminatory classification:

We do not think that the substantive guarantee of due process or certainty in the law will be advanced by any further "refinement" in the applicable tests as suggested by the Government. Announced degrees of "deference" to legislative judgments, just as levels of "scrutiny" which this Court announces that it applies to particular classifications made by a legislative body, may all too readily become facile abstractions used to justify a result. In this case the courts are called upon to decide whether Congress, acting under an explicit constitutional grant of authority, has by that action transgressed an explicit guarantee of individual rights which limits the authority so conferred. Simply labeling the legislative decision "military" on the one hand or "gender-based" on the other does not automatically guide a court to the correct constitutional result.

Rostker, 453 U.S. at 69-70. The fact that a military policy is involved certainly counsels greater deference to Congress and the Executive, but Rostker, Goldman, and the other precedent cited above teach that the standard of review cannot be easily quantified using a specific degree of deference or level of scrutiny. Rather, our review involves the careful assessment of a number of factors, including whether the policy is facially neutral, whether it targets a suspect class, whether the class is similarly situated to others affected, whether the policy was motivated by animus, whether it infringes upon a fundamental right (and, if so, how), what military purposes are furthered by the policy, whether those purposes are legitimate, and whether Congress or the Executive used considered professional judgment and accommodated the servicemembers' rights in a reasonable and evenhanded manner, given the rights at issue.

         At this juncture, I express no views on these various factors, including whether the Mattis Plan was a product of comparable "considered professional judgment" as the policy in Goldman, other than to concur with the Judgment that the Plan and its accompanying Panel Report constituted changed circumstances that warrant vacating the preliminary injunction and assessing the Mattis Plan anew. This is especially true since the preliminary injunction relied heavily on the curious circumstances surrounding the President's tweet and subsequent Memorandum, which reversed a policy supported by lengthy and careful study and replaced it with a policy lacking the apparent support of any contradictory study. Reassessment is also necessary to clarify whether requiring service in one's biological sex impacts all servicemembers who identify as transgender in the same manner, because that impacts whether the Mattis Plan should be construed as one monolithic policy rather than analyzed separately into its constituent elements. Once those matters are understood, the District Court can properly review the policy or policies challenged by Plaintiffs. I express no views on the merits or the outcome of that reassessment. I write only to provide some guidance to the parties and the District Court so that this matter can proceed in an efficient manner. At this stage, and on this record, I believe it is premature to opine, let alone rule, on anything further.

         My concurring colleague would go much further and not only reach the merits of the constitutional issues but also take the drastic step of precluding any discovery and dismissing the lawsuit. Slip op. at 1-2, 20, 58-60 (Williams, J., concurring). For several reasons, I disagree. To begin with, having found adequate non-constitutional reasons to vacate the preliminary injunction, it is inappropriate to seek out constitutional questions to decide in order to reach the same result. The concurrence strains to find a case on point, but all are inapposite; none holds that we are required to reach the merits of the claims in order to dissolve a preliminary injunction. Further, even if we have the discretion to reach the merits, that doesn't mean we should, particularly when they are constitutional claims. "A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them." Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988); see also Stillman v. C.I.A., 319 F.3d 546, 548 (D.C. Cir. 2003); United States v. Rostenkowski, 59 F.3d 1291, 1302-03 (D.C. Cir. 1995).

         I grant that the Court reached out to decide the constitutional issues in Munaf v. Geren, 553 U.S. 674 (2008), but that was not only an extraordinary circumstance but also one where "[a]djudication of the merits . . . rest[ed] on a question of law . . ." id. at 691. Here, the constitutional claims are not purely legal in nature, and the District Court has found that some factual issues are in dispute. The concurrence frets about "intrusions into executive decision making" and of the "President's mental processes," slip op. at 60 (Williams, J., concurring), but that does not justify shutting off all discovery. For instance, as explained in our Judgment and above, there is considerable confusion in this case about how the Mattis Plan impacts transgender servicemembers who must comply with the service requirements for their biological sex.[*] Compelling military or executive officials to explain the operation and purpose of this requirement would not improperly intrude upon such mental processes. "It is the decision-making process that requires shielding from public scrutiny, not the decision itself once it has been acted on." 3 Weinstein's Federal Evidence § 509.23 (2019); see also In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) ("The deliberative process privilege does not shield documents that simply state or explain a decision the government has already made . . . ."); Edward J. Imwinkelreid, The New Wigmore: A Treatise on Evidence § 7.7.2 (3d ed. 2019) ("Nor is there a privilege for a post-decision explanation of the decision."); 26A Charles Alan Wright et al., Federal Practice and Procedure: Evidence § 5680 (2018) ("The [deliberative process] privilege does not apply . . . to explanations of existing regulations or of a past decision."). Now that the Mattis Plan has been adopted, there is nothing unduly intrusive about asking officials to testify about how the policy operates and what military purposes it serves, and we have required similar discovery in the past where military policies were at issue. See Waldie v. Schlesinger, 509 F.2d 508, 510 & n.1 (D.C. Cir. 1974) (denying summary judgment where affidavits of government witnesses were "ambiguous" and "conclusory" in explaining military policies). Indeed, this very type of discovery occurred in Goldman and Rostker without any apparent damage to the republic. See, e.g., Brief for Respondents, Goldman v. Weinberger, 1985 WL 669077, at *4-5 ("At trial, Air Force witnesses explained why the extraordinarily detailed regulation of the official uniform worn by its personnel is deemed essential to the accomplishment of the Air Force's mission."); Brief for Appellant, Rostker v. Goldberg, 1981 WL 390367, at *30 ("[H]igh level military personnel who testified in this case were of the view . . . that developing methods of warfare employed by the United States and its allies would require more combat intensive forces than those that had been required during past military conflicts." (citing deposition testimony)).

         My concurring colleague points out that Rostker and Goldman reversed the trial court rulings on the merits, slip op. at 60 (Williams, J., concurring), but in doing so, the Court did not criticize discovery about how military policies operated or what interests they served. Rather, the Court noted that it was improper for lower courts to consider plaintiff expert testimony that contradicted the military experts about whether the policies at issue were justified under the circumstances. Rostker, 453 U.S. at 80-81; Goldman, 475 U.S. at 509-10. The concurrence cites no case that has adopted the astounding rule that the government is immune from all discovery explaining the operation and purpose of its military policies. Even in a facial challenge, discovery may be necessary where the impact of the regulation is unclear and disputed. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 667-68 (1994) (reversing summary judgment for the government in facial challenge because of factual disputes about the "actual effects" of the regulation). It is one thing to defer to the government's justification for military policy; it is quite another not to require the government to explain fully, under oath, that justification. The former custom of deference is reasonable, but the latter is imprudent. Cf. United States v. Nixon, 418 U.S. 683, 710 n.18 (1974) ("Because of the key role of the testimony of witnesses in the judicial process, courts have historically been cautious about privileges."). The concurrence cites no reason why the current commander-in-chief is entitled to more deference or authorized to provide less explanation than any of his predecessors, and I am certainly not aware of any. It is for this reason that the panel judgment opted for regular order.

          Williams, Senior Circuit Judge, concurring in the result:

         The district court issued a nationwide injunction strictly limiting the authority of the current President and secretary of defense to alter or amend their predecessors' military directives and policy judgments about the composition of the armed forces. In our January 4 judgment, we reversed the court's refusal to dissolve the injunction; we also held that it abused its discretion to the extent it granted plaintiffs additional relief. See Doe 2 v. Shanahan, No. 18-5257, 2019 WL 102309, at *1 & n.1 (D.C. Cir. Jan. 4, 2019) ("Panel Judgment"), rev'g Doe 2 v. Trump, 315 F.Supp.3d 474 (D.D.C. 2018), cert. before judgment denied, No. 18-677, 2019 WL 272026 (U.S. Jan. 22, 2019). I joined the panel in dissolving the injunction-and explained that a separate opinion would follow. This is that opinion.

         I write separately because I believe the record and the law require dismissal of plaintiffs' claims. A correct resolution at this stage is important because the decisions of the district court reflect what in my view are wholly mistaken assumptions about the nature of constitutional review of military personnel policy-at least on the facts of this case. To be specific, the court contemplates a highly intrusive examination of the mental processes of the civilian and military leadership of a coordinate branch of government. See, e.g., Doe 2 v. Mattis, 322 F.Supp.3d 92, 101 (D.D.C. 2018) (declaring that plaintiffs "are entitled to complete discovery" regarding the executive's "alleged deliberations"); Doe 2 v. Trump, 319 F.Supp.3d 539, 543 (D.D.C. 2018) (emphasizing that plaintiffs will "be able" to "seek discovery from" the President). These interrogations are to be aimed, the district court has said, at uncovering infirmities in a policy that the secretary of defense, in his "professional judgment," has determined is essential to putting our armed forces "in the strongest position to protect the American people." Memorandum from Secretary Mattis to President Trump 3 (Feb. 22, 2018) ("Mattis Memo"), J.A. 265. Under prevailing constitutional doctrine, however, this case can (and should) be resolved on the existing record.

         I should start by clarifying what this case is actually about. It is not about a "transgender ban." See, e.g., Appellees' Br. 2. The challenged policy expressly provides that "[t]ransgender persons . . . may serve, like all other Service members." Mattis Memo 3, J.A. 265 (emphasis added). It is instead about whether the Constitution requires the current administration to reinstate a policy created by the previous administration allowing certain transgender individuals to serve in their preferred gender rather than their biological sex, as all service members have for decades. Id. For those transgender persons for whom the value of serving otherwise than in their biological sex exceeds the value of being in the military, of course, the policy thwarts their wish to serve. The Constitution does not compel the military to yield to their preference.

         Once we abstract away from the politically charged subject-matter-as we must-this is a straightforward legal case. Our "Constitution vests [t]he complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force exclusively in the legislative and executive branches." Panel Judgment *2 (alteration in original) (quoting Kreis v. Sec'y of Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989)) (internal quotation marks omitted); see U.S. Const. art. I, § 8, cls. 12-16; art. II, § 2, cl. 1. So, although the policy argument in favor of accommodating plaintiffs' claimed entitlement to transition into their preferred gender may be compelling, the legal argument for requiring such accommodation is not.

         The current administration's policy-which is far more accommodating to transgender service than that of any administration from 1789 until 2016-easily passes constitutional muster. Given their biological differences, males and females have long been assigned to separate berthing, bathroom, and shower facilities, and subject to different sets of physical fitness, body fat, uniform, and grooming standards. This is unquestionably lawful; it is required (in part) by Congress, see, e.g., 10 U.S.C. § 7419, and has been approved (repeatedly) by the Supreme Court, see, e.g., United States v. Virginia, 518 U.S. 515, 550 n.19 (1996); Rostker v. Goldberg, 453 U.S. 57, 81 (1981). To put it simply, there is no constitutional right for, say, biological males who identify as female to live, sleep, shower, and train with biological females. Whether allowing such flexibility in military service is a good idea or not is of no concern to the courts; that is a question for the people acting through their elected representatives.

         I

         With the general issue in mind, I discuss the relevant terminology and the successive policies that lie at the root of the case, together with a timeline of the litigation; I then turn to the legal issues.

         A

         Transgender individuals, according to plaintiffs' expert witness, have a "gender identity"-an "internalized, felt sense of who they are as male or female"-that does not align with "their assigned sex at birth." Decl. of George Richard Brown in Support of Plaintiffs ¶¶ 13-14 (Aug. 30, 2017) ("Brown 2017 Decl."), J.A. 1056; accord, e.g., Amici Curiae Am. Medical Ass'n et al. Br. ("AMA Br.") 3. In this way, "[t]rangsender people differ from non-transgender individuals, whose gender identity aligns with the sex assigned at birth." Id. at 4. In virtually all cases, the latter concept, "sex assigned at birth," lines up with an individual's "biological sex," as determined by "chromosomes, gonads, hormones, and genitals," Department of Defense Report and Recommendations on Military Service by Transgender Persons 7 n.10 (Feb. 2018) ("DoD Report"), J.A. 275 (emphasis added); see, e.g., Agnes Gereben Schaefer et al., Assessing the Implications of Allowing Transgender Personnel To Serve Openly 5 (2016) ("RAND Report"), J.A. 621 (explaining that "birth sex . . . typically correlates with primary sex characteristics (e.g., genitalia)"). To be sure, some transgender individuals undergo sex reassignment surgery. But the rates for complete sex reassignment surgery "are exceedingly low-2% of transgender men and 10% of transgender women." DoD Report 31, J.A. 299.

         Gender dysphoria, again according to plaintiffs' experts, is a mental health condition from which only "a subset of transgender people" suffer. Decl. of George Richard Brown in Support of Opp'n to Defs.' Mot. to Dismiss ¶ 9 (May 11, 2018), J.A. 839; accord, e.g., Decl. of Brad R. Carson in Support of Pls.' Mot. for Preliminary Injunction ¶ 23 (Aug. 28, 2017), J.A. 995. It is a serious mental health condition that is recognized by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (or "DSM"). Brown 2017 Decl. ¶¶ 16-18, J.A. 1057; accord, e.g., DoD Report 13, J.A. 281; AMA Br. 7. The condition is "associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning." DoD Report 13, J.A. 281 (quoting Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 453 (5th ed. 2013)); accord, e.g., Brown 2017 Decl. ¶ 17, J.A. 1057; AMA Br. 7. "[U]ntreated," it "can cause debilitating distress, depression, impairment of function, self-mutilation to alter one's genitals or secondary sex characteristics, other self-injurious behaviors, and suicide." Id. at 9.

         "The recommended treatment for gender dysphoria includes assessment, counseling, and, as appropriate," gender transition. AMA Br. at 11. Gender transition includes "social transition, hormone therapy, and surgical interventions to bring the body into alignment with one's gender identity." Id.; accord, e.g., Brown 2017 Decl. ¶ 23, J.A. 1059. Social transition, the sole choice of many, consists simply of "living one's life fully in accordance with one's gender identity." AMA Br. 11. "This typically includes publicly identifying oneself as that gender through all of the ways that people signal their gender to others such as through their name, pronoun usage, dress, manner and appearance, and social interactions." Id.

         Transition became relevant to military personnel administration for the first time in 2016, under the orders of then-Secretary of Defense Ashton Carter. The so-called Carter policy, which we'll discuss in detail below, defined a transition as being "complete" when a service member had "completed the medical care identified or approved by a military medical provider in a documented medical treatment plan as necessary to treat" gender dysphoria. U.S. Dep't of Defense, Transgender Service in the U.S. Military: An Implementation Handbook 11 (Sept. 30, 2016) ("Carter Memo Implementation Handbook"), J.A. 518; see also Memorandum from Secretary Carter to Secretaries of Military Departments, attachment at 1 (June 30, 2017) ("Carter Memo"), J.A. 588 (explaining that a "history of medical treatment associated with gender transition is disqualifying" unless a service member "has completed all medical treatment associated" with the transition).

         B

         We deal here with three successive policies on military service by transgender persons: (1) Pre-2016; (2) the Carter policy (so named after Secretary Carter); and (3) the Mattis policy (so named after James Mattis, Carter's immediate successor as secretary of defense).

         1. Pre-2016.

         (A) Being transgender. The parties appear to agree that transgender persons with or without gender dysphoria (or the equivalent of this condition in earlier terminology) were barred from military service. See, e.g., Appellants' Br. 12; Appellees' Br. 3. I return to this below.

         (B) Gender dysphoria was clearly a bar to military service (at least as clearly as one can say, given changes in nomenclature). Given the "unique mental and emotional stresses of military service," DoD Report 10, J.A. 278, the executive branch long presumptively disqualified from service individuals with "[m]ost mental health conditions," id. at 20, J.A. 288. The military leadership has traditionally aligned these disqualifying conditions with the conditions listed in the DSM. Id. at 34, J.A. 302.

         For decades, then, the military's "accession" standards- the standards governing induction into the armed forces- disqualified individuals with "psychosexual conditions," including "transsexualism." M. Joycelyn Elders et al., Medical Aspects of Transgender Military Service 3 (2014), J.A. 784. ("Transsexualism" first appeared in the DSM in 1980. DoD Report 10, J.A. 278.) Likewise, the military's "retention" standards-the standards governing separation from the armed forces-traditionally permitted discharge of individuals with "sexual gender and identity disorders." Elders et al., supra, at 3, J.A. 784.

         The parties seem generally to regard the historic accession and retention practices as effectively barring all "[t]ransgender individuals" from "enlist[ing] or serv[ing] in the U.S. armed forces." Id. Even transgender individuals who did not "take hormones, have surgery, or undergo any other aspect of gender transition" were, under these "psychological" standards, ineligible to serve. Id. (emphasis added); see also Doe 1 v. Trump (Doe I), 275 F.Supp.3d 167, 178 (D.D.C. 2017) (explaining that "transgender individuals" could not "obtain medical waivers for entrance into the military").

         I frankly have some doubt whether this characterization of the pre-2016 world is fully accurate. Because many transgender persons live in their "biological sex," without apparent gender dysphoria, it seems improbable that the policies in fact excluded all transgender persons. As nothing before the court appears to turn on this, ...


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