Executive Summary: As previously reported by these authors, on July 26, 2017, President Trump announced via Twitter that transgender individuals will no longer be permitted to serve in the military. President Trump issued an official memorandum (“the memorandum”) on August 25, 2017, reasserting the ban and setting out a number of directives. In response, several transgender service members filed suit in the United States District Court for the District of Columbia alleging that the memorandum and the transgender military ban violate the guarantees of the Fifth Amendment of the United States Constitution. On October 30, 2017, United States District Judge Colleen Kollar-Kotelly issued an injunction, finding that the plaintiffs are likely to succeed on the merits of their claims. This order established a status quo by which President Obama’s prior policy, announced on June 30, 2016, remains in effect and permits transgender individuals to serve in all divisions of the United States Armed Forces.
Background
On July 26, 2017, President Trump announced the following in a series of tweets:
After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow…… Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming…victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you[.]”
In response, the Department of Defense (DOD) announced that no service member could be discharged based solely on gender identity and that transgender individuals would be allowed to enlist in the military openly effective January 1, 2018.
However, on August 25, 2017, President Trump issued a memorandum reasserting his previously tweeted position. He also issued several directives, including: (1) a ban on “accession,” which indefinitely extends the transgender military ban for new recruits (the “Accession Directive”); and (2) “retention,” to put forward a plan of action to discharge currently serving transgender individuals by March 23, 2018 (the “Retention Directive”). On September 14, 2017, Secretary of Defense James Matthias issued an Interim Guidance which sets forth, among other things:
- a prohibition on accession;
- permission for service members who have completed gender transition to continue to serve;
- permission for transgender service members to reenlist; and
- prohibition on discharging a service member solely on the basis of transgender status or gender dysphoria.
Permanent guidance is expected by February 21, 2018, in accordance with the memorandum.
Several current and prospective transgender service members brought suit against President Trump, Secretary Matthias, the various military divisions and their Secretaries and other governmental officials, challenging the memorandum as a violation of the due process guarantees of the Fifth Amendment. On October 30, 2017, Judge Kollar-Kotelly enjoined enforcement of the memorandum.
Specifically, Judge Kollar-Kotelly held that transgender status is, at a minimum, a “quasi-suspect” classification because transgender individuals who “are alone targeted for exclusion under the Accession and Retention Directives” have “experienced a history of purposeful unequal treatment[,]…been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities,” been “relegated to such position of political powerlessness as to command extraordinary protection from the majoritarian political process” and because the group “exhibits obvious, immutable, or distinguishable characteristics that define them as a discrete group.” As Judge Kollar-Kotelly describes:
Transgender individuals have immutable and distinguishing characteristics that make them a discernable class. As a class, transgender individuals have suffered, and continue to suffer, severe persecution and discrimination. Despite this discrimination, the Court is aware of no argument or evidence suggesting that being transgender in any way limits one's ability to contribute to society. The exemplary military service of Plaintiffs in this case certainly suggests that it does not. Finally, transgender people as a group represent a very small subset of society lacking the sort of political power other groups might harness to protect themselves from discrimination.
Judge Kollar-Kotelly also held that the memorandum discriminates based on gender as set out by the United States Supreme Court in Price Waterhouse v. Hopkins. In Price Waterhouse, the Supreme Court recognized a “gender stereotype” theory of sex discrimination, creating a cause of action based on a person’s failure to conform to “usual” male/female stereotypes. This same theory has now, for many decades, been used to bring transgender individuals into the protections of other Civil Rights statutes, including Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act of 1972, which do not specifically prohibit discrimination based on transgender status.
Additionally, the court held that the plaintiffs were likely to succeed on the merits of their Fifth Amendment claim. While the plaintiffs did not oppose the government’s position that maximizing military effectiveness, lethality, unit cohesion and budgetary considerations – all justifications provided by the government for the Accession and Retention Directives – were legitimate government concerns, they challenged whether the Accession and Retention Directives were “substantially related” to the governmental goals expressed. Judge Kollar-Kotelly noted the following “unusual factors” had a “combined effect” of showing that plaintiffs were likely to succeed on the merits of their claim:
- The “hypothetical and extremely overbroad” reasons given for excluding transgender individuals – that “some” transgender individuals “could” suffer medical conditions that impede their duties and that there is “room to think” they could be limited in deployability – could apply to almost any service member;
- Concern for costs was primarily related to sex reassignment surgeries, which are required for only a small subset of transgender service members;
- There was no support offered for the claim that having transgender military members would affect unit cohesion;
- Reasons offered by the government for the transgender military ban have been contradicted by studies, conclusions and judgments of the military itself;
- The mechanism and informal nature by which President Trump first announced his transgender military ban – Twitter – particularly after studies had shown that transgender individuals in the military had not resulted in ill effects, evinced that the transgender military ban was unlikely “driven by a genuine concern regarding military efficacy.”
Because the memorandum, if implemented, would irreparably harm the plaintiffs since it “brands and stigmatizes Plaintiffs as less capable of serving in the military, reduces their stature among their peers and officers, stunts the growth of their careers, and threatens to derail their chosen calling or access to unique educational opportunities” and because the harm alleged cannot simply be remedied through a monetary award, the Judge held that a preliminary injunction was warranted. Finally, in balancing the equities, the court held that the harm to the plaintiffs and the public at large in allowing the transgender military ban to go into effect greatly outweighed any harm to the military, since even the military’s own studies suggested banning such individuals would be more harmful than helpful.
It should be noted that the memorandum also prohibited the armed forces from funding any sex reassignment surgery that had not begun prior to March 23, 2018. While the plaintiffs in this case challenged that directive as well, the court held that it did not have jurisdiction over this claim because the injury was hypothetical. No actual injury had been suffered because the ban on funding these surgeries would not go into effect until March 23, 2018, and none of the plaintiffs who were in transition had surgical procedures that would be affected by the directive in anything more than a speculative manner. As such, this aspect of the ban is not enjoined and can still go into effect as proposed on March 23, 2018.
Bottom Line:
This decision is a significant victory for the transgender community and civil rights activists in relation to open military service. The injunction has the effect of allowing transgender individuals to enlist and reenlist in the armed forces, and to continue to serve without fear of dismissal.
If you have any questions regarding the issue of sexual orientation or gender identity discrimination in the workplace, bathroom rights for transgender students or employees, developing policies addressing gender identity and sexual orientation discrimination or other labor or employment related issues, please feel free to contact the authors of this Alert, Johanna Zelman, jzelman@fordharrison.com, who is a partner in our Hartford office or Nancy Holt, nholt@fordharrison.com, who is counsel in our Washington, D.C. office. You may also contact the FordHarrison attorney with whom you usually work.