400 F.Supp.3d 317
D. Md.2019Background
- DoD lifted a long-standing ban on open transgender military service in 2016 (Open Service Directive); accession was to begin July 1, 2017.
- President Trump announced a ban via tweets (July 26, 2017) and issued an August 25, 2017 Memorandum directing a return to the pre-2016 policy (the "Ban"). The Court enjoined key directives of that Memorandum in November 2017.
- DoD convened a Panel, produced a DoD Report, and Secretary Mattis submitted an Implementation Plan (Feb. 2018) recommending a policy that disqualifies transgender persons who have transitioned or who require transition, with limited exceptions (including a severable "Grandfather Provision"). President Trump revoked the August 2017 Memorandum and authorized the Implementation Plan via a March 2018 Memorandum; the Implementation Plan took effect April 12, 2019.
- Plaintiffs (six current service members, six prospective service members, and ACLU of Maryland) sued alleging violations of the Fifth Amendment (equal protection and substantive due process) and sought injunctions and declaratory relief.
- The court dissolved the preliminary injunction affecting the August 2017 Memorandum as moot given the March 2018 revocation and Implementation Plan, assessed jurisdictional issues (mootness and standing), and addressed motions to dismiss/for judgment on the pleadings.
- Key procedural holdings: challenge to the August 2017 Memorandum is moot; most current service members lack standing to challenge the Implementation Plan (except Plaintiff George); all prospective plaintiffs have standing; the substantive due process claim was dismissed for failure to plead a protected interest; the equal protection claim survives pleading and merits discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of challenge to August 2017 Memorandum | Ban continues in effect via Implementation Plan; case not moot | Trump revoked the August 2017 Memorandum and authorized DoD Implementation Plan; the prior directives no longer exist | Challenge to August 2017 Memorandum is moot; claims tied to it dismissed |
| Standing of Current Service Members to challenge Implementation Plan | Continued injury: risk to medical care, reenlistment, stigmatic injury, deployability | Implementation Plan permits some continued service and medical care; many alleged harms are speculative | Only George (risk of being barred from commissioning) has standing; other current members lack standing (claims dismissed without prejudice) |
| Standing of Prospective Service Members | Prospective plaintiffs allege imminent, concrete injury because Implementation Plan bars accession for many who have transitioned | Defendants say accession deficiencies or possibility of waivers defeat redressability or make injury speculative | All prospective plaintiffs have standing to challenge the Implementation Plan |
| Merits—Equal Protection standard and review deference | Implementation Plan discriminates on transgender status; heightened scrutiny applies; discovery needed to test military judgment | Deferential rational-basis review applies because of military deference and medical rationale | Court finds plaintiffs plausibly allege equal protection violation and applies heightened scrutiny framework; cannot resolve merits now and permits discovery to evaluate military decisionmaking |
| Merits—Substantive Due Process | Plan is arbitrary, conscience-shocking, deprives plaintiffs of protected interests (opportunity to serve, benefits) | No protected liberty or property interest in enlisting or commissioning; policy not conscience-shocking | Substantive due process claim dismissed for failure to plead a cognizable liberty or property interest (without prejudice) |
| Declaratory relief vs. suing the President | Plaintiffs seek declaration that President violated rights; keeping President as defendant is necessary for full relief | Courts should not issue declaratory relief against President; subordinate officials could provide relief | Court denies dismissal of President without prejudice; will not dismiss President at motion-to-dismiss stage |
Key Cases Cited
- Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367 (1992) (standard for modifying or dissolving equitable decrees based on significant change in circumstances)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (standing requires concrete and particularized injury)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (elements of Article III standing)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (threatened injury must be certainly impending or show substantial risk)
- Rostker v. Goldberg, 453 U.S. 57 (1981) (military context requires careful application of equal protection principles; deference to military is not carte blanche)
- Trump v. Hawaii, 138 S. Ct. 2392 (2018) (deferential review in national-security/immigration context for facially neutral policy)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (mootness and redressability principles)
- Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) (equal protection injury from government barrier to benefits)
- Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir.) (2017) (mootness and replacement of challenged executive action)
- Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019) (per curiam) (addressing Implementation Plan and related standing and merits issues)