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Stone v. Trump

United States District Court, D. Maryland

November 21, 2017

BROCK STONE, et al. Plaintiffs
v.
DONALD J. TRUMP et al. Defendants

          MEMORANDUM AND ORDER RE: MOTIONS

          Marvin J. Garbis United States District Judge.

         The 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.

         I. INTRODUCTION

         In June 2015, then-Secretary of Defense Ashton Carter issued a statement characterizing the regulations that were in effect at that time relating to transgender[1] individuals serving in the military as “an outdated, confusing, inconsistent approach that's contrary to our value of service and individual merit causing uncertainty that distracts commanders from our core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[2] 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.[3] The working group performed a systematic review including commissioning studies[4] 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.

         On June 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 accession[5]policy was scheduled to begin “[n]ot later than July 1, 2017.”[6]Id. at Attach. § 2(a).

         On June 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.

         Shortly thereafter, on July 26, 2017, President Trump precipitated a change to the policy in force by announcing on Twitter[7] 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.

         The instant lawsuit was filed on August 8, 2017, and three others[8] 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.

         For 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].

         II. BACKGROUND

         A. Transgender Military Policy Prior to June 2016

         “On 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).

         B. Transgender Open Service Directive

         On June 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.

         The DTM procedures included three main components.

         First, 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. § 1(b).

         Second, 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[9] 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).

         Third, 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.

         In 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.

         Consistent 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 No. 40-9.

         C. President's Memorandum and Interim Guidance

         On June 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 No. 40-11.

         On July 26, 2017, President Trump published three tweets under the handle @realDonaldTrump:

         (Image Omitted)

         Pls.' Mot. Ex. 19, ECF No. 40-22.

         Approximately 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.

         President 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 Directive”).

         The 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.

         President 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.

         On 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.

         D. The Instant Lawsuit

         The individual plaintiffs[10] 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.

         Plaintiffs 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.

         Plaintiffs' 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.

         On October 12, 2017, Defendants filed a Motion to Dismiss [ECF No. 52], seeking dismissal pursuant to Rules[11] 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.

         In 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[12] [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].

         E. The Individual Plaintiffs[13]

         1. Petty Officer First Class Brock Stone

         Brock 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.

         Stone 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.

         2. Staff Sergeant Kate Cole

         Kate 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.

         Cole 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.

         3. Senior Airman John Doe

         John 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.

         In 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.

         4. Airman First Class Seven Ero George

         Seven 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 12-18 months.

         George 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.

         As a medically-necessary part of his gender transition, George has been undergoing hormone therapy and has undergone a medically-necessary surgery, but no further ...


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