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Karnoski v. Trump

United States District Court, W.D. Washington, Seattle

April 13, 2018

RYAN KARNOSKI, et al., Plaintiffs,
v.
DONALD J. TRUMP, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' AND WASHINGTON'S MOTIONS FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

          Marsha J. Pechman, United States District Judge.

         THIS MATTER comes before the Court on Plaintiffs' Motion for Summary Judgment (Dkt. No. 129); the State of Washington's Motion for Summary Judgment (Dkt. No. 150); and Defendants' Cross-Motion for Partial Summary Judgment (Dkt. No. 194.) Having reviewed the Motions, the Responses (Dkt. Nos. 194, 207, 209), the Replies (Dkt. Nos. 201, 202, 212) and all related papers, and having considered arguments made in proceedings before the Court, the Court rules as follows: The Court GRANTS IN PART and DENIES IN PART Plaintiffs' and Washington's Motions and GRANTS IN PART and DENIES IN PART Defendants' Cross-Motion.

         ORDER SUMMARY

         In July 2017, President Donald J. Trump announced on Twitter a ban on military service by openly transgender people (the “Ban”). Plaintiffs and the State of Washington (“Washington”) challenged the constitutionality of the Ban, and moved for a preliminary injunction to prevent it from being carried out.

         In December 2017, the Court-along with three other federal judges-entered a nationwide preliminary injunction preventing the military from implementing the Ban. The effect of the order was to maintain the status quo, allowing transgender people to join and serve in the military and receive transition-related medical care. For the past few months, they have done just that.

         In March 2018, President Trump announced a plan to implement the Ban. With few exceptions, the plan excludes from military service people “with a history or diagnosis of gender dysphoria” and people who “require or have undergone gender transition.” The plan provides that transgender people may serve in the military only if they serve in their “biological sex.” Defendants claim that this plan resolves the constitutional issues raised by Plaintiffs and Washington.

         In the following order, the Court concludes otherwise, and rules that the preliminary injunction will remain in effect. Each of the claims raised by Plaintiffs and Washington remains viable. The Court also rules that, because transgender people have long been subjected to systemic oppression and forced to live in silence, they are a protected class. Therefore, any attempt to exclude them from military service will be looked at with the highest level of care, and will be subject to the Court's “strict scrutiny.” This means that before Defendants can implement the Ban, they must show that it was sincerely motivated by compelling interests, rather than by prejudice or stereotype, and that it is narrowly tailored to achieve those interests.

         The case continues forward on the issue of whether the Ban is well-supported by evidence and entitled to deference, or whether it fails as an impermissible violation of constitutional rights. The Court declines to dismiss President Trump from the case and allows Plaintiffs' and Washington's claims for declaratory relief to go forward against him.

         BACKGROUND

         I. The Ban on Military Service by Openly Transgender People[1]

         President Trump's Announcement on Twitter:

         On July 26, 2017, President Donald J. Trump (@realDonaldTrump) announced over Twitter that the United States would no longer “accept or allow” transgender people “to serve in any capacity in the U.S. military” (the “Twitter Announcement”):

         (Image Omitted)

         (Dkt. No. 149, Ex. 1.)

         The 2017 Memorandum:

         On August 25, 2017, President Trump issued a Presidential Memorandum (the “2017 Memorandum”) formalizing his Twitter Announcement, and directing the Secretaries of Defense and Homeland Security to “return” to an earlier policy excluding transgender service members. (Dkt. No. 149, Ex. 2.) The 2017 Memorandum authorized the discharge of openly transgender service members (the “Retention Directive”); prohibited the accession of openly transgender service members (the “Accession Directive”); and prohibited the use of Department of Defense (“DoD”) and Department of Homeland Security (“DHS”) resources to fund “sex reassignment” surgical procedures (the “Medical Care Directive”). (Id. at §§ 1-3.) The Accession Directive was to take effect on January 1, 2018; the Retention and Medical Care Directives on March 23, 2018. (Id. at § 3.) The 2017 Memorandum also ordered the Secretary of Defense to “submit to [President Trump] a plan for implementing both [its] general policy . . . and [its] specific directives . . .” no later than February 21, 2018. (Id.)

         Secretary Mattis' Press Release and Interim Guidance:

         On August 29, 2017, Secretary of Defense James N. Mattis issued a press release confirming that the DoD had received the 2017 Memorandum and, as directed, would “carry out” its policy direction. (Dkt. No. 197, Ex. 2.) The press release explained that Secretary Mattis would “develop a study and implementation plan” and “establish a panel of experts . . . to provide advice and recommendation on the implementation of the [P]resident's direction.” (Id.)

         On September 14, 2017, Secretary Mattis issued interim guidance regarding President Trump's Twitter Announcement and 2017 Memorandum to the military (the “Interim Guidance”). (Dkt. No. 149, Ex. 3.) The Interim Guidance again identified the DoD's intent to “carry out the President's policy and directives” and “present the President with a plan to implement the policy and directives in the [2017] Memorandum.” (Id. at 2.) The Interim Guidance provided (1) that transgender people would be prohibited from accession effective immediately; (2) that service members diagnosed with gender dysphoria would be provided “treatment, ” however, “no new sex reassignment surgical procedures for military personnel [would] be permitted after March 22, 2018”; and (3) that no action would be taken “to involuntarily separate or discharge an otherwise qualified Service member solely on the basis of a gender dysphoria diagnosis or transgender status.” (Id. at 3.)

         The Implementation Plan:

         On February 22, 2018, as directed, Secretary Mattis delivered to President Trump a plan for carrying out the policies set forth in his Twitter Announcement and 2017 Memorandum (Dkt. No. 224, Ex. 1) along with a “Report and Recommendations on Military Service by Transgender Persons” (Dkt. No. 224, Ex. 2) (collectively, the “Implementation Plan”). The Implementation Plan recommended the following policies:

• Transgender persons with a history or diagnosis of gender dysphoria are disqualified from military service, except under the following limited circumstances: (1) if they have been stable for 36 consecutive months in their biological sex prior to accession; (2) Service members diagnosed with gender dysphoria after entering into service may be retained if they do not require a change of gender and remain deployable within applicable retention standards; and (3) currently serving Service members who have been diagnosed with gender dysphoria since the previous administration's policy took effect and prior to the effective date of this new policy, may continue to serve in their preferred gender and receive medically necessary treatment for gender dysphoria.
• Transgender persons who require or have undergone gender transition are disqualified from military service.
• Transgender persons without a history or diagnosis of gender dysphoria, who are otherwise qualified for service, may serve, like all other Service members, in their biological sex.

(Dkt. No. 224, Ex. 1 at 3-4.)

         The 2018 Memorandum:

         On March 23, 2018, President Trump issued another Presidential Memorandum (the “2018 Memorandum”). (Dkt. No. 224, Ex. 3.) The 2018 Memorandum confirms his receipt of the Implementation Plan, purports to “revoke” the 2017 Memorandum and “any other directive [he] may have made with respect to military service by transgender individuals, ” and directs the Secretaries of Defense and Homeland Security to “exercise their authority to implement any appropriate policies concerning military service by transgender individuals.” (Id. at 2-3.)

         II. The Carter Policy

         In 2010, Congress repealed the “Don't Ask, Don't Tell” policy that had previously prevented gay, lesbian, and bisexual people from serving openly in the military. (Dkt. No. 145 at ¶ 10.) The repeal of “Don't Ask, Don't Tell” raised questions about the military's policy on transgender service members, as commanders became increasingly aware that there were capable and experienced transgender service members in every branch of the military. (Id. at ¶ 11; Dkt. No. 146 at ¶ 7.) In August 2014, the DoD eliminated its categorical ban on retention of transgender service members, enabling each branch of military service to reassess its own policies. (Dkt. No. 145 at ¶ 12; Dkt. No. 146 at ¶ 8.) In July 2015, then-Secretary of Defense Ashton Carter convened a group to evaluate policy options regarding openly transgender service members (the “Working Group”). (Dkt. No. 142 at ¶ 8.) The Working Group included senior uniformed officials from each branch, a senior civilian official, and various staff members. (Id. at ¶ 9.) It sought to “identify and address all relevant issues relating to service by openly transgender persons.” (Id. at ¶ 22.) To do so, it consulted with medical experts, personnel experts, readiness experts, and commanders whose units included transgender service members, and commissioned an independent study by the RAND Corporation to assess the implications of allowing transgender people to serve openly (the “RAND Study”). (Id. at ¶¶ 10-11, 22-27.) In particular, the RAND Study focused on: (1) the health care needs of transgender service members and the likely costs of providing coverage for transition-related care; (2) the readiness implications of allowing transgender service members to serve openly; and (3) the experiences of foreign militaries that allow for open service. (Dkt. No. 144, Ex. B at 4.) The RAND Study found “no evidence” that allowing transgender people to serve openly would adversely impact military effectiveness, readiness, or unit cohesion. (Dkt. No. 144 at ¶ 14.) Instead, the RAND Study found that discharging transgender service members would reduce productivity and result in “significant costs” associated with replacing skilled and qualified personnel. (Dkt. No. 142 at ¶ 21.) The results of the RAND Study were published in a 113-page report titled “Assessing the Implications of Allowing Transgender Personnel to Serve Openly.” (See Dkt. No. 144, Ex. B.)

         After reviewing the results of the RAND Study and other evidence, the Working Group unanimously agreed that (1) transgender people should be allowed to serve openly and (2) excluding them from service based on a characteristic unrelated to their fitness to serve would undermine military efficacy. (Dkt. No. 142 at ¶¶ 26-27.) On June 30, 2016, Secretary Carter accepted the recommendations of the Working Group and issued Directive-type Memorandum 16-005 (the “Carter Policy”), which affirmed that “service in the United States military should be open to all who can meet the rigorous standards for military service and readiness.” (Dkt. No. 144, Ex. C.) The Carter Policy provided that “[e]ffective immediately, no otherwise qualified service member may be involuntarily separated, discharged or denied reenlistment or continuation of service, solely on the basis of their gender identity, ” and further provided that transgender people would be allowed to accede into the military not later than July 1, 2017.[2] (Id. at 5.) Consistent with the Carter Policy, each branch of military service issued detailed instructions, policies, and regulations regarding separation and retention, accession, in-service transition, and medical care. (Dkt. No. 144 at ¶¶ 24-36, Exs. D, E, F; Dkt. No. 145 at ¶¶ 41-50, Exs. A, B; Dkt. No. 146 at ¶¶ 27-34, Ex. A.)

         In reliance upon the Carter Policy and the DoD's assurances that it would not discharge them for being transgender, many service members came out to the military and had been serving openly for more than a year when President Trump issued his Twitter Announcement and 2017 Memorandum. (Dkt. No. 144, ¶ 37; Dkt. No. 145 at ¶ 51; Dkt. No. 146 at ¶ 35.)

         III. Procedural History

         On August 28, 2017, Plaintiffs filed this lawsuit challenging the constitutionality of the Ban, as set forth in the Twitter Announcement and the 2017 Memorandum. (See Dkt. No. 1.) Plaintiffs include nine transgender individuals (the “Individual Plaintiffs”) and three organizations (the “Organizational Plaintiffs”). (Dkt. No. 30 at ¶¶ 7-18.) Individual Plaintiffs Ryan Karnoski, D.L., and Connor Callahan aspire to enlist in the military; Staff Sergeant Cathrine Schmid, Chief Warrant Officer Lindsey Muller, Petty Officer First Class Terece Lewis, Petty Officer Second Class Phillip Stephens, and Petty Officer Second Class Megan Winters currently serve openly in the military. (Id. at ¶¶ 7-13.) Individual Plaintiff Jane Doe currently serves in the military, but does not serve openly. (Id. at ¶ 14.) Organizational Plaintiffs include the Human Rights Campaign (“HRC”), the Gender Justice League (“GJL”), and the American Military Partner Association (“AMPA”). (Id. at ¶¶ 16-18.) Defendants include President Trump, Secretary Mattis, the United States, and the DoD. (Id. at ¶¶ 19-22.)

         On November 27, 2017, the Court granted intervention to Washington, which joined to protect its sovereign and quasi-sovereign interests in its natural resources and in the health and physical and economic well-being of its residents. (See Dkt. No. 101.)

         On December 11, 2017, the Court issued a nationwide preliminary injunction barring Defendants from “taking any action relative to transgender individuals that is inconsistent with the status quo that existed prior to President Trump's July 26, 2017 announcement.”[3] (Dkt. No. 103 at 23.) The Court found that Plaintiffs and Washington had standing to challenge the Ban and were likely to succeed on the merits of their claims for violation of equal protection, substantive due process, and the First Amendment. (Id. at 6-12, 15-20.)

         On January 25, 2018, Plaintiffs and Washington filed separate motions for summary judgment.[4] (Dkt. Nos. 129, 150.) Both seek an order declaring the Ban unconstitutional and permanently enjoining its implementation. (Dkt. No. 129 at 28-29; Dkt. No. 150-1.)

         On February 28, 2018, Defendants filed an opposition and cross-motion for partial summary judgment seeking dismissal of all claims ...


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