On August 9, 2017, five active duty servicemembers in the United States military who openly identified as transgender people filed this lawsuit in the U.S. District Court for the District of Columbia against the President, Department of the Army, Department of the Air Force, and other government agencies. Three additional plaintiffs, including one student at the U.S. Naval Academy and one student participating in the Reserve Officers’ Training Corps, were added to the suit in an amended complaint. The plaintiffs sued under the Due Process and Equal Protection clauses of the Fifth Amendment, as well as under the theory of estoppel. The plaintiffs, represented by GLBTQ Legal Advocates & Defenders, the National Center for Lesbian Rights, and private counsel, sought declaratory judgment that the ban on transgender people from military service is unconstitutional.
The plaintiffs also sought preliminary and permanent injunctive relief prohibiting implementation of the President’s directive to prohibit transgender individuals from serving in the Armed Forces. Specifically, on July 26, 2017, President Trump announced, through a series of tweets, a prohibition on the open service of transgender people in the military. On August 25, 2017, the President signed a formal directive to the Secretary of Defense and the Secretary of Homeland Security categorically excluding transgender people from enlisting or serving openly in the military.
From June 2016, when the U.S. military adopted a policy to permit transgender servicemembers to serve openly, the military provided ongoing support for openly transgender people serving in the armed forces. In reliance on the promises of the U.S. military, transgender servicemembers self-identified and pursued medical treatment for the purpose of gender transition. According to the plaintiffs, estoppel prevented the military from rescinding the rights, benefits, and protections promised to the plaintiffs.
The plaintiffs moved for a preliminary injunction on August 31, 2017, to prohibit the defendants from implementing the ban on transgender people enlisting and serving in the U.S. military. On October 4, 2017, the defendants filed a motion to dismiss for lack of jurisdiction and failure to state a claim for which relief can be granted. On October 30, 2017, Judge Colleen Kollar-Kotelly granted in part and denied in part the plaintiffs’ motion for preliminary injunction and the defendants’ motion to dismiss. The order prohibited the defendants from complying with the accession and retention directives of the Presidential directive until the case is resolved. The order effectively reverted to the status quo with regard to the hiring and retention of opening transgender servicemembers. The court also held that it did not have jurisdiction to adjudicate the prohibition against the expenditures of medical treatment relating to gender transition because none of the plaintiffs established a likelihood of being harmed by that prohibition. Finally, the court dismissed the plaintiffs’ claim of relief under the theory of estoppel but permitted the plaintiffs to file an amended complaint with regard to estoppel. 275 F.Supp.3d 167.
On November 21, 2017, the defendants appealed to the D.C. Circuit, but then filed a notice of voluntary dismissal on December 29, 2017. Back in the district court, on March 2, 2018, the defendants filed a partial motion for judgment on the pleadings and motion to partially dissolve the preliminary injunction only with regard to President Trump as a party to the lawsuit.
On April 6, 2018, the plaintiff filed the second amended complaint and took out the estoppel claim. The defendant then filed a motion to dismiss again on April 20, 2018, as well as a motion for summary judgment and motion to dissolve the preliminary injunction. The plaintiff then filed a cross-motion for summary judgment on May 11.
On August 6, 2018, Judge Kollar-Kotelly granted the defendants’ partial motion for judgment on the pleadings and motion to partially dissolve the preliminary injunction only to the extent that it ran against the president. Accordingly, President Trump was dismissed as a party from this case. On the same day, Judge Kollar-Kotelly also denied the defendants’ motion to dismiss the second amended complaint, together with the defendants’ motion for summary judgment and motion to dissolve the preliminary injunction. 315 F.Supp.3d 474. On August 24, 2018, Judge Kollar-Kotelly also denied the plaintiffs’ cross-motion for summary judgment. 322 F.Supp.3d 92
On August 27, the defendant again appealed to the D.C. Circuit. On January 4, 2019, Judges Griffith, Wilkins, and Williams issued a per curiam judgment that the district court’s denial of the defendants’ motion to dissolve the preliminary injunction is reversed and the preliminary injunction is vacated without prejudice. The circuit court stated that the district court made an erroneous finding that the new policy was merely an implementation of the 2017 policy. The circuit court reasoned that the government took substantial steps to cure the procedural deficiencies in the enjoined 2017 memorandum and the new policy was no longer a blanket ban on transgender service. As a result, the court believed that the public interest weighed in favor of dissolving the injunction.
In addition to the D.C. Circuit’s per curiam judgment, the Supreme Court recently issued a relevant order in Trump v. Karnoski. 586 U.S. 18A625 (Jan. 22, 2019). In Karnoski, the U.S. District Court for the Western District of Washington issued a preliminary injunction enjoining the government from taking any action on transgender individuals in the military inconsistent with the status quo that existed prior to the 2017 memorandum. Based on these decisions, the scope and breath of discovery of this case might change, so the district court ordered the parties to file a joint status report by March 28, 2019.
On March 8, 2019, the defendants filed a notice to inform the court that they intended to release a Directive-Type Memorandum (DTM) to implement the new policy in the near future. The court issued a notice and stated that the defendants could not implement the policy because the preliminary injunction ordered on October 30, 2017, was still effective. It said that the fact that three other nationwide preliminary injunctions were stayed had no impact on the continued effectiveness of this court’s preliminary injunction. Therefore, the defendants were not permitted to implement the new policy until a mandate is issued by the D.C. Circuit.
As of May 9, 2020, the parties have been continuing to engage in discovery.
Meg Hlousek - 02/12/2018
Sichun Liu - 03/29/2019
Hope Brinn - 05/09/2020
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