Federal Court in Baltimore Rules on Next Stage of Challenge to Trump’s Hateful Transgender Military Ban

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By Arthur S. Leonard. This article appears in the September edition of LGBT Bar Association of New York’s LGBT Law Notes.

On August 20, U.S. District Judge George L. Russell, III, ruled on a raft of pending motions in Stone v. Trump, 2019 U.S. Dist. LEXIS 141269, 2019 WL 3935363 (D. Md.), one of four pending challenges to the Trump Administration’s policy on transgender military service. One upshot of the ruling is that the preliminary injunction issued by Judge Russell’s predecessor in the case, Judge Marvin J. Garbis, in the fall of 2017, is dissolved as moot, because it was aimed at the policy as announced in a White House memorandum of August 2017, which President Trump revoked in 2018 after receiving then-Secretary of Defense James Mattis’s Implementation Plan, which differs in material respects from the August 2017 policy.

Judge Russell also concluded that all but one of the original line-up of individual plaintiffs lacked standing to pursue the case because they benefit from a provision of the Implementation Plan that allows them to continue to serve, the so-called “grandfather clause.” He rejected the argument that the conditions under which they serve preserve their individual standing, finding the stigma of serving under the “grandfather clause” as inadequate in this case to confer standing, and that the possibility that they might not receive necessary medical care as too speculative, especially in light of a declaration by a Defense Department official concerning the care that will be provided for transgender personnel continuing to serve.

However, in an amended complaint, several individuals who were challenging the enlistment ban in the policy were added as plaintiffs, and they were all found to have standing because the enlistment ban in the policy applies to them. The ACLU as a co-plaintiff in its representative capacity for its members was found not to have standing, because the only individual member identified in the complaint, lead plaintiff Brock Stone, lost standing with the implementation of the grandfather clause.

As to the substance of plaintiffs’ claims, challenges to the original policy were dismissed as moot, but some of the challenges to the Implementation Plan under the 5th Amendment withstood the motion to dismiss, and the court rejected the government’s attempt to obtain summary. judement as premature, noting disputed material facts and ongoing discovery. Discovery deadlines are extended due to ongoing disputes about privilege asserted by the government, and most of the disputed discovery issues were left to a subsequent ruling (which emerged early in September and will be dealt with in the October issue of Law Notes.) The court agreed the president personally was immune from discovery, but declined at this stage to dismiss him as a defendant in his official capacity. To sum up, the lawsuit continues, now focused on the Implementation Plan that went into effect on April 12, 2019, after the Supreme Court granted a motion by the government several weeks earlier to stay the existing preliminary injunctions.

Unraveling this complex opinion in great detail would take more space than we can allocate in the context of Law Notes, but we will provide some discussion of the salient points.

Perhaps the most significant finding by the court based on the current record, which was key to many of its rulings and follows the lead of the D.C. and 9th Circuits in ruling in the other pending cases, is that the Implementation Plan, purportedly based on a “study” performed by a Task Force appointed by Mattis in the wake of the August 2017 memorandum, differs materially from the August 2017 version of the policy, thus mooting several portions of the case and destroying the standing of all but one of the original plaintiffs, an enlisted man, Seven Ero George. George sought to apply for a commissioned position as a military nurse (for which he now has the credentials) and — because the Defense Department considers such an application as a “new enlistment” which would be subject to the Implementation Plan’s enlistment policy — would be disqualified from doing so because he has transitioned and, as an applicant for enlistment, is not covered by the grandfather clause. Under the enlistment policy, anybody who has been diagnosed with gender dysphoria is disqualified from enlistment, including individuals who have completed transition and thus have been cured of gender dysphoria because their gender identity is in alignment with their body. (Thus illustrating the nonsense of the Implementation Plan, which allows incumbent service-members who have transitioned prior to its implementation to serve under the grandfather clause, and allows individuals who identify as transgender to enlist, but only if they have not been diagnosed with gender dysphoria and foreswear any intent to transition while in service.)

Of most consequence to the ongoing litigation is the judge’s analysis of the substantive issue of standard of judicial review of the remaining Equal Protection Claim under the 5th Amendment. The government argues that the standard is rational basis, and that the exclusion from service of persons diagnosed with gender dysphoria is rational because they have a serious medical condition; furthermore, the government argues, the Task Force report and Mattis recommendations are entitled to substantial deference because they are based on professional military judgment about enlistment and service qualifications. The court concluded that heightened scrutiny applies, as it had determined when issuing the preliminary injunction against the August 2017 policy, following lower court precedents recognizing gender identity discrimination claims as being entitled to the same level of scrutiny as sex discrimination claims. (This conclusion will be tested, at least in the statutory interpretation context, when the Supreme Court decides the Harris Funeral Home case during the 2019/20 term.) The court rejected the sleight of hand of seeking to escape such analysis by describing the ban in terms of gender dysphoria, a medical condition, rather than gender identity, a class characteristic amenable to equal protection analysis. Judge Russell insisted that based on the plain language of the Implementation Plan, it was focused on transgender individuals, who were subjected to unequal treatment regardless whether they were diagnosed with gender dysphoria. As to military deference, he pointed out, whether the policy was truly based on professional military judgments rather than, as plaintiffs alleged, political judgments, was a heavily contested factual issue as to which the contested discovery requests were highly pertinent, so it was impossible to rule at this stage in the context of dismissal or summary judgment that deference decides this case.

At this stage, the original procedural due process claim against the tweet and August 2017 policies falls out as moot, and, wrote Russell, “The Second Amended Complaint lacks any allegations surrounding the Implementation Plan that would permit the Court to plausibly infer conscience-shocking, or even intentional, conduct on the part of Defendants in the recommendation and adoption of the Implementation Plan. As a result, Plaintiffs’ substantive due process claim fails the threshold inquiry.” Furthermore, he said that the Complaint failed to plead “a cognizable liberty or property interest,” ruling out a substantive due process claim altogether.

There are many other interesting byways and excursions on various points in the opinion, which we leave to those particularly interested to consult the opinion itself. At this stage, it suffices to relate that the Baltimore challenge is alive, the name of the case will change with the designation of a new lead plaintiff in the absence of Brock Stone who lacks standing, the case continues as a 5th Amendment equal protection case, and it will focus heavily on whether, as a factual matter, there is sufficient support for the assertion in the Implementation Plan that there is an “exceedingly persuasive” justification for excluding some transgender people from serving unless they foreswear the ability to transition or live in their felt gender identity for the duration of their military service and others from enlisting if they have a gender dysphoria diagnosis or have already transitioned. Some of the exclusions under the Implementation Plan are conditional, others categorical, and the proof issues await discovery, which the government appears determined to contest to the last appeal.

To this observer, it appears likely that the discovery issues in the four cases could stretch things out long enough that if Trump is defeated for re-election, a Democratic administration could rescind the Implementation Plan and restore the status quo of the Obama Administration’s policy, rendering the entire case moot, as the primary goal of the lawsuits is declaratory and injunctive relief. As things stand, the four lawsuits have already accomplished much, in terms of provoking the Trump Administration to revise the originally announced plan to the extent of making it possible for some — perhaps many — transgender people to continue serving, albeit in less than ideal circumstances.

Plaintiffs are represented by the ACLU of Maryland Foundation, the national ACLU LGBT Rights Project, and cooperating attorneys from Covington & Burling LLP.

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