Stone v. Trump

400 F.Supp.3d 317

Brock STONE, et al., Plaintiffs,

v.Donald J. TRUMP, et al., Defendants.

Civil Action No. GLR-17-2459

United States District Court, D. Maryland.

Signed August 20, 2019

Deborah A. Jeon, American Civil Liberties Union of Maryland Foundation, David Robert Rocah, ACLU of Maryland, Baltimore, MD, Augustus Golden, Carolyn Frances Corwin, Christopher Justin Hanson, David Meir Zionts, Jaclyn Elysse Martinez Resly, Jeffrey Todd Bozman, Joshua D. Roselman, Mark E. Andrews-Lee, Mark Henry Lynch, Thomas Ian Plotkin, Pro Hac Vice, Marianne F. Kies, Peter John Komorowski, III, Covington and Burling LLP, Washington, DC, Chase Strangio, James Esseks, Joshua Block, Leslie Cooper, Pro Hac Vice, American Civil Liberties Union, New York, NY, Mitchell Kamin, Nicholas Monroe Lampros, Pro Hac Vice, Covington and Burling LLP, Los Angeles, CA, Sara Sunderland, Pro Hac Vice, Covington and Burling LLP, San Francisco, CA, for Plaintiffs.

Courtney D. Enlow, Pro Hac Vice, Ashley A. Cheung, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

George L. Russell, III, United States District Judge THIS MATTER is before the Court on four Motions: (1) Defendants President Donald J. Trump, Secretary of Defense Mark T. Esper,¹ Acting Secretary of the Army Ryan McCarthy,² Acting Secretary of the Navy Richard V. Spencer, Secretary of the Air Force Heather Wilson, Acting Secretary of Homeland Security Kevin McAleenan,³ and Commandant of the U.S. Coast Guard Karl L. Schultz's⁴ Partial Motion for Judgment on the Pleadings and Motion to Partially Dissolve the Preliminary Injunction ("Motion for Judgment on the Pleadings") (ECF No. 115); (2) Defendants' Motion to Dissolve the Preliminary Injunction ("Motion to Dissolve") (ECF No. 120); (3) Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint or, in the Alternative, Defendants' Motion for Summary Judgment (ECF No. 158); and (4) Plaintiffs'⁵ Cross-Motion for Summary Judgment (ECF No. 163).⁶ This case involves equal protection and substantive due process challenges to President Trump's policy regarding transgender persons' enlistment and service in the military. The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court will: deny without prejudice in part and deny as moot in part Defendants' Motion for Judgment on the Pleadings; grant Defendants' Motion to Dissolve; grant in part and deny in part Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint or, in the Alternative, Defendants' Motion for Summary Judgment; and deny without prejudice Plaintiffs' Cross-Motion for Summary Judgment.

I. BACKGROUND⁷

A. Factual Background

1. Pre-June 2016 Transgender Military Service Policy

At some point before 1981, the U.S. Department of Defense (the "DoD") implemented a policy that barred transgender men and women from enlisting or serving openly in the military. (2d Am. Compl. ¶ 128, ECF No. 148). This policy applied to transgender individuals regardless of their fitness to serve or their need for medical treatment. (Id. ¶ 129). The DoD based this policy on its conclusion that "Sexual Gender and Identity Disorders" rendered transgender service members "administratively unfit" to serve in the military. (Brown Decl. ¶¶ 48–56, ECF No. 40-32).

2. The Open Service Directive

In 2016, the DoD completed a thorough analysis of military costs, readiness, and other factors, concluding that "there was no basis for the military to exclude men and women who are transgender from openly serving their country, subject to the same fitness requirements as other service members." (2d Am. Compl. ¶ 5). On June 30, 2016, then-Secretary of Defense Ashton Carter issued the Open Service Directive, which permitted transgender persons currently in the military to serve openly effective immediately and permitted the accession⁸ of transgender individuals starting on July 1, 2017. (Id. ¶ 139, 141). The Open Service Directive also permitted in-service gender transition and covered necessary medical care and treatment to transgender individuals beginning on October 1, 2016. (Pls.' Mot. Prelim. Inj. Ex. 1 at 2, 6, ECF No. 40-4).⁹ On June 30, 2017, then-Secretary of Defense James Mattis ("Secretary Mattis") deferred implementation of the accession component of the Open Service Directive until January 1, 2018. (Pls.' Mot. Prelim. Inj. Ex. 8, ECF No. 40-11; see 2d Am. Compl. ¶ 162).

3. The President's Tweets and August 2017 Memorandum

On July 26, 2017, President Trump published a series of Tweets¹⁰ stating, "After consultation with my Generals and military experts,...the United States Government will not accept or allow...Transgender individuals to serve in any capacity in the U.S. Military." (2d Am. Compl. ¶ 147). On August 25, 2017, President Trump formalized the policy announced in his Tweets in a "Memorandum for the Secretary of Defense and the Secretary of Homeland Security" (the "August 2017 Memorandum" or the "Ban"). (Id. ¶ 158; Compl. Ex. C ["Aug. 2017 Mem."], ECF No. 1-4). The August 2017 Memorandum dictated a "return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016" (the "Retention Directive") effective January 1, 2018, (Aug. 2017 Mem. §§ 1(b), 2(a), 3), and directed the military to "maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018" (the "Accession Directive"), (id. § 2(a)). In addition, the August 2017 Memorandum prohibited "all use of DoD or [Department of Homeland Security] 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" effective March 23, 2018 (the "Sex-Reassignment Surgery Directive"). (Id. §§ 1(b), 2(b), 3). The August 2017 Memorandum also tasked the Secretary of Defense, in consultation with the Secretary of Homeland Security, with developing a plan to implement these directives (the "Implementation Plan") by February 21, 2018. (Id. § 3).

4. The Implementation Plan

On September 14, 2017, Secretary Mattis issued Terms of Reference, which directed the Deputy Secretary of Defense and the Vice Chairman of the Joint Chiefs of Staff to lead the development of the Implementation Plan and to convene a Panel of Experts (the "Panel") from within DoD to conduct a study to "inform the Implementation Plan." (Pls.' Cert. Conf. Counsel Ex. 20 at 2–3, ECF No. 177-24; Pls.' Opp'n Defs.' Mot. Dissolve Prelim. Inj. Ex. 4 at 1–2, ECF No. 139-5).¹¹ The Panel held thirteen meetings over the course of ninety days, conferring with military and civilian medical professionals, commanders of transgender service members, and transgender service members. (Defs.' Mot. Dissolve Prelim. Inj. Ex. 2 ["DoD Report"] at 18, ECF No. 120-2). On January 11, 2018, the Panel provided Secretary Mattis with its recommendations. (Pls.' Mem. Opp'n Defs.' Mot. Dismiss Summ. J. & Cross-Mot. ["Pls.' Opp'n & Cross-Mot."] at 10, ECF No. 163-2).

On February 22, 2018, Secretary Mattis submitted to President Trump the Implementation Plan, which recommended changes to the transgender service policy set forth in the August 2017 Memorandum. (2d Am. Compl. ¶¶ 176–77). The Implementation Plan consisted of a "short memo" (the "Mattis Memorandum") and a forty-four page "unsigned document" entitled "Department of Defense Report and Recommendations on Military Service by Transgender Persons" (the "DoD Report"). (Id. ¶ 176).

The Implementation Plan recommended adopting a policy that: (1) transgender individuals who "require or have undergone gender transition" are disqualified from military service, except under certain "limited circumstances," (Id. ¶ 177; Defs.' Mot. Dissolve Prelim. Inj. Ex. 1 ["Mattis Mem."] at 2, ECF No. 120-1; DoD Report at 32); and (2) all other transgender individuals "without a history or diagnosis of gender dysphoria, who are otherwise qualified for service," may serve only "in their biological sex." (2d Am. Compl. ¶ 177; Mattis Mem. at 2; DoD Report at 4). There are three "limited circumstances" under which transgender individuals who require or have undergone transition may serve in the military. First, they may serve "if they have been stable for [thirty-six] months in their biological sex prior to accession." (Mattis Mem. at 2; see also DoD Report at 42). Second, if a service member is diagnosed with gender dysphoria after acceding into the military, the individual "may be retained if they do not require a change of gender and remain deployable within the applicable retention standards." (Mattis Mem. at 2; see also DoD Report at 42). Third, service members diagnosed with gender dysphoria between the effective date of the Open Service Directive and the effective date of the Implementation Plan may "continue to serve in their preferred gender and receive medically necessary treatment for gender dysphoria" (the "Grandfather Provision"). (Mattis Mem. at 2; see also DoD Report at 42). The Grandfather Provision further states that it "is and should be deemed severable" from the Implementation Plan "should [DoD's] decision to exempt these Service members be used by a court as a basis for invalidating the entire policy." (2d Am. Compl. ¶ 178; DoD Report at 43). In addition, transgender service members serving under the Grandfather Provision must "not be deemed to be non-deployable for more than [twelve] months or for a period of time in excess of that established by Service policy (which may be less than [twelve] months)." (2d Am. Compl. ¶ 215; DoD Report at 6).

On March 23, 2018, President Trump issued a second memorandum (the "March 2018 Memorandum") that "revoke[s]" the August 2017 Memorandum and permits the Secretary of Defense to proceed with the Implementation Plan. (2d Am. Compl. ¶¶ 12, 179–80 (...