United States District Court, D. Maryland
BROCK STONE, et al. Plaintiffs
DONALD J. TRUMP et al. Defendants
MEMORANDUM AND ORDER RE: MOTIONS
J. Garbis United States District Judge.
Court has before it Plaintiffs' Motion for Preliminary
Injunction [ECF No. 40], Defendants' Motion to Dismiss
[ECF No. 52], and the materials submitted relating thereto.
The Court has reviewed the exhibits, considered the
declarations submitted by the parties, held a hearing, and
has had the benefit of the arguments of counsel. Any findings
of facts stated herein are based upon the Court's
evaluation of the evidence and the inferences that the Court
has found it reasonable to draw from the evidence.
2015, then-Secretary of Defense Ashton Carter issued a
statement characterizing the regulations that were in effect
at that time relating to transgender individuals serving in the
military as “an outdated, confusing, inconsistent
approach that's contrary to our value of service and
individual merit causing uncertainty that distracts
commanders from our core missions.” Statement by
Secretary of Defense Ash Carter on DoD Transgender
Policy (July 13, 2015), Pls.' Mot. Ex. 28, ECF No. 40-31.
Secretary Carter created a working group to study “the
policy and readiness implications of welcoming transgender
persons to serve openly.” Id. The working
group included representatives of the leadership of the Armed
Forces; the Joint Chiefs of Staff; the service secretaries;
and personnel, training, readiness, and medical specialists
from across the Department. See id.; Carson
¶¶ 1, 8-10, ECF No. 40-37. The working group performed
a systematic review including commissioning
studies and meetings with transgender service
members, outside experts, medical personnel, military
leaders, allied militaries, and others. Carson ¶¶
1, 8-27. After the year-long study, the working group
ultimately concluded that “[o]pen service by
transgender service members would not impose any significant
burdens on readiness, deployability, or unit cohesion.”
Wilmoth ¶ 23, ECF No. 40-38.
30, 2016, then-Secretary of Defense Carter issued a directive
rescinding the policy of discriminating against men and women
who are transgender. Open Serv. Dir., Pls.' Mot. Ex. 1,
ECF No. 40-4. The Open Service Directive provided that
“no otherwise qualified Service member may be
involuntarily separated, discharged or denied reenlistment or
continuation of service, solely on the basis of their gender
identity.” Id. at Attach. § 1(a). Men and
women who are transgender are “subject to the same
standards as any other Service member of the same
gender.” Id. at Attach. § 1(b). The
Directive further provided that medical conditions affecting
transgender service members would be treated “in a
manner consistent with a Service member whose ability to
serve is similarly affected for reasons unrelated to gender
identity or gender transition.” Id. at Attach.
§ 1(c). These medical services included medical
treatment necessary to transition gender while serving.
Id. at Attach. § 3(a). The Directive also
announced that individuals wishing to join the military would
not be prohibited from doing so solely because they are
transgender, although there were additional stringent medical
requirements to ensure fitness for duty. Id. at
Attach. § 2. The implementation of the
accessionpolicy was scheduled to begin “[n]ot
later than July 1, 2017.”Id. at Attach. §
30, 2017, the day before new enlistments of transgender
persons were scheduled to begin, current Secretary of Defense
Jim Mattis announced that it was necessary to defer new
transgender enlistments for an additional six months to
January 1, 2018, while he reviewed the policy. Mattis Mem.,
Pls.' Mot. Ex. 8, ECF No. 40-11. He added that his
announcement did not otherwise change the Open Service
Directive and that “we will continue to treat all
Service members with dignity and respect.” Id.
thereafter, on July 26, 2017, President Trump precipitated a
change to the policy in force by announcing on
Twitter that “the United States will not
accept or allow Transgender individuals to serve in any
capacity in the U.S. Military.” Pls.' Mot. Ex. 19,
ECF No. 40-22. President Trump formalized the transgender
service member ban on August 25, 2017, in a Memorandum
(“the President's Memorandum”) stating that
in his judgment, the DoD had “failed to identify a
sufficient basis to conclude” that the Open Service
Directive “would not hinder military effectiveness and
lethality, disrupt unit cohesion, or tax military
resources.” President's Mem. § 1(a), Pls.'
Mot. Ex. 18, ECF No. 40-21. The memorandum addressed, and
rescinded, each component of the Open Service Directive.
Id. at §§ 1(b), 2.
instant lawsuit was filed on August 8, 2017, and three
others have been filed in response to the
President's policy change. Plaintiffs here seek
declaratory and injunctive relief (including a Motion for
Preliminary Injunction). Defendants seek dismissal of the
Amended Complaint [ECF No. 39] pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6) and denial of
Plaintiffs' Motion for Preliminary Injunction.
reasons as stated herein, the Court GRANTS Plaintiffs'
Motion for Preliminary Injunction [ECF No. 40], and GRANTS IN
PART and DENIES IN PART Defendants' Motion to Dismiss
[ECF No. 52].
Transgender Military Policy Prior to June 2016
September 20, 2011, the military policy known as
‘Don't Ask, Don't Tell' (DADT) ended,
allowing gay, lesbian and bisexual service members to serve
openly.” Gates & Herman, Transgender Military
Service in the United States (May 2014), ECF No. 40-7.
However, until June 2016, military policies continued to
exclude transgender people from serving openly. Id.
Transgender individuals wanting to join the military were
prohibited from doing so, and transgender individuals already
serving were subject to discharge if their condition became
known. Id. See also Brown Decl. 9-14, ECF No. 40-32
(noting that pre-2016 military policy listed “Sexual
Gender and Identity Disorders” among conditions that
rendered a service member unfit and subject to discharge).
Transgender Open Service Directive
30, 2016, after a year-long study, then-Secretary of Defense
Carter issued a Directive-type Memorandum (“DTM”)
mandating the establishment of policy and procedures for
“the retention, accession, separation, in-service
transition, and medical coverage for transgender personnel
serving in the Military Services.” Open Serv. Dir.,
Pls.' Mot. Ex. 1, ECF No. 40-4. The DTM stated:
The policy of the Department of Defense is that service in
the United States military should be open to all who can meet
the rigorous standards for military service and readiness.
Consistent with the policies and procedures set forth in this
memorandum, transgender individuals shall be allowed to serve
in the military.
Id. at 2.
procedures included three main components.
retention. Effective June 30, 2016, “no otherwise
qualified Service member may be involuntarily separated,
discharged or denied reenlistment or continuation of service,
solely on the basis of their gender identity.”
Id. at Attach. § 1(a). Transgender service
members became subject to the same standards as any other
service member of the same gender. Id. at Attach.
accession. Not later than July 1, 2017, the DoD Instruction
6130.03 was to be updated to reflect changed policies and
procedures related to medical standards for entry into the
military. Id. at Attach. § 2(a). A history of
gender dysphoria continued to be disqualifying unless the
applicant was medically-certified as having been
“stable without clinically significant distress or
impairment in social, occupational, or other important areas
of functioning for 18 months.” Id. Also, a
history of medical treatment with gender transition continued
to be disqualifying unless the applicant had completed
medical treatment and had been stable in the preferred gender
for 18 months, and if the applicant was receiving hormone
treatment, the individual had been stable on such treatment
for 18 months. Id. Further, a history of
sex-reassignment surgery continued to be disqualifying unless
a period of 18 months had passed since the most recent
surgery, no additional surgeries were required, and the
applicant had no functional limitations or complications
persisting from the surgery. Id. The Secretaries of
the Military Departments and Commandant of the United States
Coast Guard could waive the 18-month period in individual
cases. Id. at Attach. § 2(b).
sex reassignment surgery. Effective October 1, 2016, the DTM
procedures allowed for in-service gender transition and
provided for further guidance on the provision of necessary
medical care and treatment to transgender service members.
Id. at Attach. §§ 3, 4.
addition, the DTM included an equal opportunity statement and
clarified the DoD's position, “consistent with the
U.S. Attorney General's opinion, that discrimination
based on gender identity is a form of sex
discrimination.” Id. at Attach. § 5(a).
Education and training materials were to be developed and
disseminated to each Military Department by no later than
October 1, 2016, and each Military Department was directed to
issue implementing guidance and a written training and
education plan by November 1, 2016. Id. at Attach.
§§ 6, 7.
with the DTM directives, the DoD issued an Implementation
Handbook on September 30, 2016. DoD, Transgender Service
in the U.S. Military: An Implementation Handbook, ECF
President's Memorandum and Interim Guidance
30, 2017, Secretary of Defense James Mattis deferred
implementation of the DTM's directive regarding accession
until January 1, 2018. Mattis Mem., Pls.' Mot. Ex. 8, ECF
26, 2017, President Trump published three tweets under the
Mot. Ex. 19, ECF No. 40-22.
a month later, on August 25, 2017, President Trump issued a
memorandum entitled “Presidential Memorandum for the
Secretary of Defense and the Secretary of Homeland
Security.” President's Mem., Pls.' Mot. Ex. 18,
ECF No. 40-21. In the first section, President Trump stated:
Until June 2016, the Department of Defense (DoD) and the
Department of Homeland Security (DHS) (collectively, the
Departments) generally prohibited openly transgender
individuals from accession into the United States military
and authorized the discharge of such individuals.
Id. at § 1.
Trump directed the Departments' Secretaries “to
return to the longstanding policy and practice on military
service by transgender individuals that was in place prior to
June 2016 . . . .” Id. at § 1(b)
(“the Retention Directive”). He further directed
the Secretaries to “maintain the currently effective
policy regarding accession of transgender individuals into
military service beyond January 1, 2018 . . . .”
Id. at § 2(a) (“the Accession
Directive”). President Trump also directed the
Secretaries to “halt all 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.” Id. at
§ 2(b) (“the Sex Reassignment Surgery
Accession Directive is to take effect on January 1, 2018; the
Retention Directive and the Sex Reassignment Surgery
Directive are to take effect on March 23, 2018. Id.
at § 3.
Trump further directed:
By February 21, 2018, the Secretary of Defense, in
consultation with the Secretary of Homeland Security, shall
submit to me a plan for implementing both the general policy
set forth in section 1(b) of this memorandum and the specific
directives set forth in section 2 of this memorandum.
Id. He added that “no action may be
taken” under the Retention Directive against
transgender individuals currently serving in the United
States military until the Secretary of Defense has determined
how to address such individuals. Id.
September 14, 2017, Secretary of Defense James Mattis issued
a memorandum establishing an interim policy until the
directives take effect. Defs.' Mem., ECF No. 45, Ex. 1
(“Interim Guidance”). Under the Interim Guidance
policy, there is no immediate effect on individual service
members pending the implementation plan. Id. The
Interim Guidance states that “[n]ot later than February
21, 2018, [Secretary Mattis] will present the President with
a plan to implement the policy and directives in the
Presidential Memorandum.” Id. at 1.
The Instant Lawsuit
individual plaintiffs and the American Civil Liberties
Union of Maryland, Inc. (“ACLU”) (collectively,
“the Plaintiffs”) have sued Donald J. Trump in
his official capacity as the President of the United States,
James Mattis in his official capacity as Secretary of
Defense, Ryan McCarthy in his official capacity as Acting
Secretary of the U.S. Department of the Army, Richard Spencer
in his official capacity as Secretary of the U.S. Department
of the Navy, and Heather Wilson in her official capacity as
Secretary of the U.S. Department of the Air Force
(collectively, “the Defendants”) for declaratory
and injunctive relief. Am. Compl., ECF No. 39.
seek a declaratory judgment that the policies and directives
encompassed in President Trump's Memorandum dated August
25, 2017, violate the Fifth Amendment's guarantee of
equal protection and substantive due process and are invalid
on their face and as applied to Plaintiffs. The Amended
Complaint asserts three causes of action:
• Count I - Violation of the Equal Protection Component
of the Fifth Amendment's Due Process Clause
• Count II - Violation of Substantive Due Process
• Count III - Violation of 10 U.S.C. § 1074.
Motion for Preliminary Injunction [ECF No. 40] seeks to bar
Defendants from enforcing the policies and directives
encompassed in President Trump's August 25, 2017,
Memorandum until such time as the Court renders a final
judgment on the merits of this action.
October 12, 2017, Defendants filed a Motion to Dismiss [ECF
No. 52], seeking dismissal pursuant to Rules 12(b)(1) and
12(b)(6) and denial of any Preliminary Injunction. Defendants
assert that this Court does not have jurisdiction over this
action because Plaintiffs have not suffered an injury
sufficient to establish standing and because the issues
presented are not ripe for review. Defendants contend that
“Plaintiffs have not stated plausible claims that the
President's decision to maintain the status quo while
Secretary Mattis studies military service by transgender
individuals violates equal protection, due process, or
Federal statutes.” Reply 14, ECF No. 77.
addition to the parties' briefs and arguments, the Court
has received and considered the following briefs from
Amicus Curiae in support of Plaintiffs' Motion
for Preliminary Injunction:
• The Trevor Project [ECF No. 62],
• Retired Military Officers and Former National Security
Officials [ECF No. 71], and
• Amici States Massachusetts, California,
Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, New
Mexico, New York, Oregon, Pennsylvania, Rhode Island,
Vermont, and the District of Columbia [ECF No. 73].
The Individual Plaintiffs
Petty Officer First Class Brock Stone
Stone (“Stone”) is 34 years old and has served 11
years in the United States Navy, including a 9-month
deployment to Afghanistan. Stone is currently assigned, until
August 2020, to a unit at Fort Meade in Maryland, where he
works as a computer analyst. Stone was awarded an achievement
medal in connection with his deployment, and he has received
multiple other commendations, including the Joint
Commendation Medal, the Navy Commendation Medal, the Afghan
Campaign Medal, a flag letter of commendation, and multiple
recommendations for early promotion. He is currently eligible
for promotion to Chief Petty Officer. Stone's goal is to
serve for at least 20 years and qualify for retirement
benefits. His current contract runs until 2023, which would
end three years short of his achieving enough years in
service to meet his retirement goal.
has been undergoing hormone therapy as a medically-necessary
part of his gender transition. Since arriving at Fort Meade
in July 2017, he has received medically-necessary treatment
related to his gender transition at Walter Reed National
Military Medical Center in Bethesda, Maryland. Prior to his
transfer to Fort Meade, Stone was close to finalizing a
medical treatment plan that included surgery. After the
transfer in July 2017, he had to restart the treatment plan,
but it is now in the final approval stage. The treatment plan
will be sent to the medical review board at Walter Reed in
November 2017 and thereafter will be submitted to Navy
Medical East for final medical approval. Plaintiffs assert
that it is “highly likely that Petty Officer Stone will
not receive one or both of his medically-necessary surgeries
before March 23[, 2018].” Opp. Dismiss 11, ECF No. 66.
Staff Sergeant Kate Cole
Cole (“Cole”) is 27 years old and has served in
the United States Army for almost ten years, including a
one-year deployment to Afghanistan where she served as a team
leader and designated marksman. Cole is currently stationed
at Fort Polk, Louisiana, working as a Cavalry Scout, where
she operates with a tank unit. Since enlisting at age 17,
Cole has received seven achievement medals and two Army
commendation medals. She recently received orders to enroll
in Drill Sergeant School starting on January 3, 2018, with an
anticipated graduation date of March 7, 2018. Following her
return from Drill Sergeant School, she is scheduled to change
station from Fort Polk, Louisiana to Fort Benning, Georgia.
has been undergoing hormone therapy and was scheduled to
receive medically-necessary surgery related to her gender
transition in or around September 2017. On September 8, 2017,
she was informed that her surgical treatment was denied and
her pre-surgical consultation was cancelled. Cancellation has
been remedied, but “Cole's treatment plan calls for
two additional surgeries, neither of which she will be able
to undergo before March 23[, 2018], and one of which she is
not even eligible for until after that date.” Opp.
Dismiss 11, ECF No. 66.
Senior Airman John Doe
Doe (“Doe”) is 25 years old and has served for
approximately six years on active duty in the United States
Air Force, during which he was awarded “airman of the
year.” Doe also served in Qatar for a six-month
deployment. Doe is currently stationed at Little Rock Air
Force Base, Arkansas and serves as the suicide prevention and
interpersonal violence instructor for the base and is
pursuing cryogenics certification. Doe reenlisted on
September 9, 2017.
2014, Doe began his gender transition, including undergoing
certain surgeries, for which he paid out-of-pocket. He has
been undergoing hormone therapy as a medically-necessary part
of his gender transition and planned to receive an additional
medically-necessary surgery in August 2017. Doe was informed
by email from the medical command at the base where he was
scheduled to undergo the surgery that all
gender-transition-related surgeries were on hold. Defendants
assure that, pursuant to the Interim Guidance, the surgery
was not deleted from Doe's treatment plan and can be
rescheduled at his request.
Airman First Class Seven Ero George
Ero George (“George”) is 41 years old and has
been enlisted in the Air National Guard since 2015. George is
currently stationed at the Selfridge Air National Guard Base,
Michigan and serves in the base security force, where he is a
member of the base Honor Guard. He performs military funeral
honors for deceased veterans, retirees, and active duty
members; provides dignified transfers, and performs color
guard details. George has a Bachelor's Degree in General
Studies from the University of Michigan and is currently
taking additional training as a nurse. He is scheduled to
complete his Associate's Degree in nursing in December
2017 and plans to pursue a program to earn his Bachelor's
Degree in nursing, which he expects to be able to complete in
intends to seek a commission, which subjects him to the
Army's accession policies. He has been unable to pursue a
commission to date because the historical ban has not yet
expired and because his gender has not yet been updated in
the Defense Enrollment Eligibility Report System
(“DEERS”), which still lists him as female.
George believes all required paperwork has been submitted to
update his DEERS gender, his letters of recommendation are
lined up, and he expects to be ready to commission
immediately upon the lift of the ban in January 2018.
medically-necessary part of his gender transition, George has
been undergoing hormone therapy and has undergone a
medically-necessary surgery, but no further ...