Judge rules transgender troop ban likely unconstitutional, enjoins enforcement

by Richard Eisenberg, who served as special counsel to the General Counsel of the Army and the Air Force during the Obama administration, and Alex Wagner, who served as chief of staff to the 22nd Secretary of the Army and is a fellow at the Truman National Security Project.

Last Monday, a federal district judge blocked enforcement of critical parts of President Trump’s directives banning and purging transgender individuals from serving in the U.S. military. Judge Kollar-Kotelly’s decision in Jane Doe 1, et. al. v. Trump, a case brought in the District of Columbia, is one of at least three pending cases involving challenges to Trump’s order, and highlighted the challenges the government will have in defending Trump’s policy decision and chosen method of implementation. (Another suit, Stone v. Trump, is scheduled for oral argument on November 9 in the District of Maryland.  And a third, Stockman v. Trump, is pending in the Central District of California.)

Trump’s order, initially expressed in late July via a series of tweets declaring that the United States would not “accept or allow transgender individuals to serve in any capacity in the U.S. Military,” was formalized for implementation a month later in an official White House policy memorandum to the Secretaries of Defense and Homeland Security. As we have written, this memorandum represented a confused and misguided effort to reverse the actions taken by Secretary of Defense Ash Carter in 2016, when he announced that he was “eliminating policies that can result in transgender members being treated differently from their peers based solely upon their gender identity, rather than upon their ability to serve.” Trump’s August 25, 2017 memorandum specifically directs the military services to (1) “return to” an earlier policy framework in which transgender service members could be discharged based on their gender identity; (2) indefinitely delay the commencement of a previously-announced policy allowing otherwise qualified openly transgender individuals from entering the military; and (3) refuse to provide or cover payments for “sex reassignment surgery.” In her decision, Judge Kollar-Kotelly preliminary enjoined the government from enforcing the first two of these directives, emphasizing both the irreparable harm to the plaintiffs and their likelihood of success on the merits. (With regard to the third directive, Judge Kollar-Kotelly dismissed the plaintiffs’ claim without prejudice on the grounds that no plaintiff had pled sufficient “injury-in-fact” to qualify for standing to challenge that directive.)

Doe v. Trump was brought by the LGBTQ Legal Advocates and Defenders (GLAD) and the National Center for Lesbian Rights on behalf of six transgender service members and two transgender individuals seeking to enter the military in the near future. In granting (in relevant part) their motion for preliminary judgment, Judge Kollar-Kotelly found that Trump’s directives likely violated the plaintiffs’ constitutional rights to equal protection of the law. This outcome was not surprising, given recent trends in equal protection jurisprudence along with the absence of a factual basis for the announced policy changes. Yet, several features of Judge Kollar-Kotelly’s well-reasoned opinion are noteworthy.  

As an initial matter, the plaintiffs in Doe sought a preliminary injunction to prevent implementation of Trump’s directive, and as a result were required to demonstrate that: 1) they were likely to succeed on the merits of their claims; 2) they would suffer irreparable injury in the absence of an injunction; and 3) the balance of the equities and the public interest favor granting injunctive relief.

With respect to the critical element of the plaintiffs’ likelihood of success on the merits, Judge Kollar-Kotelly examined to the constitutionality of the directives based on equal protection jurisprudence. When the government classifies a certain group of individuals differently than others (in this case, transgender service members and individuals who might seek to serve in the military), courts generally review with a deferential standard, known as rational basis.  However, when the policy impacts certain groups that have been subject to a history of discrimination, a more searching standard-of-review is warranted. In Doe, Judge Kollar-Kotelly applied “intermediate scrutiny,” which courts typically use in cases where the classification at issue is based on sex or gender. First, she held that “discrimination on the basis of someone’s transgender identity is a quasi-suspect form of classification that triggers heightened scrutiny,” joining a chorus of federal district judges who have reached similar conclusions in employment discrimination cases involving transgender plaintiffs over the last twenty years. Second, she held that any classification based on transgender status is “a form of discrimination on the basis of gender, which is itself subject to intermediate scrutiny.” She explained that “[b]y excluding an entire category of people from military service on [transgender identity] alone, [Trump’s directives] punish individuals for failing to adhere to gender stereotypes.” The concept that discrimination based on gender stereotyping—that is, punishing a woman for not adhering to social constructions of what a woman should act like or look like—derives from the seminal case of Price Waterhouse v. Hopkins.

Applying intermediate scrutiny to Trump’s directives, Judge Kollar-Kotelly examined whether the exclusion of transgender individuals from military service was “substantially related” to the “important or at least legitimate” government objectives of “maximizing military effectiveness, lethality and unit cohesion” and responding to budget pressures. 

In finding that the government was unlikely to justify its defense that the exclusion of transgender individuals was substantially related to the stated government objectives, Judge Kollar-Kotelly cited the “highly unusual circumstance” in which “all of the reasons proffered by the President for excluding transgender individuals from the military . . . were not only unsupported, but were actually contradicted by the studies, conclusions and judgment of the military itself.” Describing the deliberative and detailed process that military engaged in to arrive at 2016 policies, in which the military departments and the Secretary of Defense all agreed that the needs of the military were best served by allowing transgender individuals to openly serve, Judge Kollar-Kotelly concluded that with respect to substance of Trump’s directive, “the military concerns purportedly underlying the President’s decision had been studied and rejected by the military itself.” (Emphasis added). 

Judge Kollar-Kotelly also cited the administration’s process in rolling out the policy directives as evidence of its unconstitutionality. She wrote that, in stark contrast to the studied approach taken by the military toward development of the 2016 policy, “the President abruptly announced, via Twitter—without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans—that all transgender individuals would be precluded from participating in the military in any capacity.”  The opinion itself event pasted images of the Trump’s rhetorically-challenged tweets on the subject, concluding that such circumstances “provide additional support for Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military effectiveness.” As a result, Kollar-Kotelly was unwilling to give the usual degree of deference afforded to executive branch judgment on matters touching on military affairs where circumstances not only evinced but actually belied a lack of any serious military basis for implementation of the discriminatory classification at issue. 

Given Judge Kollar-Kotelly’s strong repudiation of the government’s arguments in this opinion, and the potential precedential value of her reasoning for other plaintiffs challenging this and other administration policies, the government will very likely appeal the decision to the U.S Court of Appeals for the D.C. Circuit. The success of that appeal, however, appears to be an upward climb.