917 F.3d 694
D.C. Cir.2019Background
- Dispute over DoD policy on transgender military service after reversal of the Obama-era "Carter Policy" (which permitted qualified transgender individuals to serve in their preferred gender) by presidential and DoD actions in 2017–2018.
- President Trump issued a 2017 memorandum rescinding Carter's change and directed a return to pre-2016 practice; Secretary Mattis later convened a panel and proposed (and the President approved) the "Mattis Plan," which (with a grandfathering exception) generally requires servicemembers to serve according to their biological sex and disqualifies those with a history/diagnosis of gender dysphoria who require or have undergone transition.
- District Court entered a preliminary injunction in Oct. 2017 enjoining enforcement of parts of the 2017 Presidential Memorandum and later refused to dissolve the injunction after the Mattis Plan was issued, treating the Mattis Plan as equivalent to a blanket transgender ban.
- The D.C. Circuit panel vacated the District Court's finding that there were no changed circumstances, held the Mattis Plan was not simply identical to the 2017 memorandum, and concluded the injunction should be dissolved for further proceedings; Wilkins, J., concurred in result and explained why the Mattis Plan differs factually from the 2017 ban and why discovery is appropriate; Williams, Sr. J., concurred in the result but argued the case should be dismissed on the merits with no further discovery.
- Central legal themes: separation-of-powers deference to military judgments; whether the Mattis Plan is facially neutral or discriminatory; whether heightened scrutiny applies; and the scope of review when an injunction is modified or superseded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Mattis Plan is substantively different from the 2017 Presidential Memorandum such that the preliminary injunction should be dissolved | The Mattis Plan continues the ban in substance (a categorical transgender exclusion) and thus the injunction should remain | The Mattis Plan differs materially (permits some transgender service, contains grandfathering and medical-condition-based rules) so injunction should be dissolved | The panel (and Wilkins) held the Mattis Plan is meaningfully different from the 2017 memorandum and that changed circumstances warranted vacating the injunction; the injunction dissolves for further review |
| Standard of review and scope of appellate review when a district court refuses to dissolve or modifies a preliminary injunction | District court applied intermediate scrutiny and pursued broad discovery into executive deliberations | Government argued limited review/deference in military matters and that the appellate review should assess changed circumstances and constitutionality where necessary | Panel: appellate review may be broader when the injunction has been effectively changed or replaced; merits can be reached when appropriate; Wilkins favored allowing discovery; Williams urged dismissal on the merits without intrusive discovery |
| Whether the Mattis Plan is facially discriminatory or targets a suspect class (triggering heightened scrutiny) | Plaintiffs: policy targets transgender people and is facially discriminatory; heightened scrutiny should apply | Government: policy is facially neutral (applies to all to serve in biological sex) and focuses on medical condition (gender dysphoria); military deference applies | Panel/Williams: Mattis Plan is facially neutral (applies to all service members to serve in biological sex) and even if not, military personnel policies receive special deference; heightened scrutiny is not controlling here |
| Whether courts should permit intrusive discovery into military and presidential decisionmaking | Plaintiffs/District Court: discovery into deliberations (including Presidential statements) is needed to show animus and arbitrariness | Government: such probing would intrude on separation-of-powers and is unnecessary given deference owed to military judgments | Wilkins: discovery about how the policy operates and its effects is appropriate and not barred by privilege; Williams: further discovery and intrusive probing into executive mental processes is unwarranted and litigation should end on the merits |
Key Cases Cited
- Horne v. Flores, 557 U.S. 433 (2009) (changed circumstances may warrant reexamination of prior judicial relief)
- Rostker v. Goldberg, 453 U.S. 57 (1981) (courts defer to military and Congressional judgments in personnel matters; limited inquiry into evidence)
- Goldman v. Weinberger, 475 U.S. 503 (1986) (military regulations receive greater deference; courts should not substitute their own judgments for military officials')
- Frontiero v. Richardson, 411 U.S. 677 (1973) (facially sex‑based military benefits statute required heightened review in civilian context)
- Schlesinger v. Ballard, 419 U.S. 498 (1975) (upholding sex‑based classification in naval tenure where sexes not similarly situated)
- Trump v. Hawaii, 138 S. Ct. 2392 (2018) (in national-security contexts courts may uphold policies that can reasonably be understood to have independent, legitimate justifications)
- Munaf v. Geren, 553 U.S. 674 (2008) (appellate courts reviewing interlocutory orders may decide merits and dismiss suits where appropriate)
- Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) (factors for proving discriminatory intent)
- In re Navy Chaplaincy, 738 F.3d 425 (D.C. Cir. 2013) (personnel policies were facially neutral and required showing of intent to discriminate)