On August 9, 2017, five active duty servicemembers in the United States military who openly identify as transgender people filed this lawsuit in the U.S. District Court for the District of Columbia. 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, and under the theory of estoppel. 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 prevents the military from rescinding the rights, benefits, and protections promised to plaintiffs.

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 in addition to 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.

The plaintiffs moved for a preliminary injunction on August 31, 2017, to prohibit 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 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. The case is back in district court and discovery is ongoing.

Meg Hlousek - 02/12/2018


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