United States Court of Appeals, District of Columbia Circuit
December 10, 2018
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.
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.
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.
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.
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.
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
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
Elizabeth B. Wydra and Ashwin P. Phatak were on the brief for
amicus curiae Constitutional Accountability Center in support
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
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.
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
M. Rao was on the brief for amici curiae American Medical
Association and Seven Other HealthCare Organizations in
support of plaintiffs-appellees and affirmance.
F. Delery was on the brief for amicus curiae The Trevor
Project in support of plaintiffs-appellees and affirmance.
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:
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.
we must review some history and background.
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
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.)
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.
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.
stated earlier, consistency and clarity in terminology and
definitions are important, and that was a key problem below.
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.
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.
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.
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.
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
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).
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.
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.
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).
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.
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").
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
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.
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.
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).
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)).
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:
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.
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.
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.
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.
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
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.
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.
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.
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."
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).
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).
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.
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.
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.
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").
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, ...