Case 1:17-cv-02459-MJG Document 85 Filed 11/21/17 Page 1 of 53

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BROCK STONE, et al.

*

Plaintiffs
vs.

*

DONALD J. TRUMP et al.

*

CIVIL ACTION NO. MJG-17-2459

*

Defendants
*

*

*

*
*
*
*
*
MEMORANDUM AND ORDER RE: MOTIONS

*

*

The Court has before it Plaintiffs’ Motion for Preliminary
Injunction [ECF No. 40], Defendants’ Motion to Dismiss [ECF No.
52], and the materials submitted relating thereto.

The Court

has reviewed the exhibits, considered the declarations submitted
by the parties, held a hearing, and has had the benefit of the
arguments of counsel.

Any findings of facts stated herein are

based upon the Court’s evaluation of the evidence and the
inferences that the Court has found it reasonable to draw from
the evidence.

I.

INTRODUCTION
In June 2015, then-Secretary of Defense Ashton Carter

issued a statement characterizing the regulations that were in
effect at that time relating to transgender1 individuals serving

1

Men and women who are transgender have a gender different

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in the military as “an outdated, confusing, inconsistent
approach that’s contrary to our value of service and individual
merit causing uncertainty that distracts commanders from our
core missions.”

Statement by Secretary of Defense Ash Carter on

DoD2 Transgender Policy (July 13, 2015), Pls.’ Mot. Ex. 28, ECF
No. 40-31.

Secretary Carter created a working group to study

“the policy and readiness implications of welcoming transgender
persons to serve openly.”

Id.

The working group included

representatives of the leadership of the Armed Forces; the Joint
Chiefs of Staff; the service secretaries; and personnel,
training, readiness, and medical specialists from across the
Department.

See id.; Carson ¶¶ 1, 8–10, ECF No. 40-37.3

The

working group performed a systematic review including
commissioning studies4 and meetings with transgender service
members, outside experts, medical personnel, military leaders,
allied militaries, and others. Carson ¶¶ 1, 8–27.

After the

year-long study, the working group ultimately concluded that
“[o]pen service by transgender service members would not impose
from the one assigned to them at birth. See, e.g., Brown Decl.
¶¶ 20-23, ECF No. 40-32; Pls.’ Mot. Ex. C (“the RAND Report”) 56, 75, ECF No. 40-35.
2
Department of Defense.
3
The Hon. Brad R. Carson served as the Acting Under
Secretary of Defense for Personnel and Readiness from April 2,
2015 to April 8, 2016. Carson ¶ 1, ECF No. 40-37.
4
Including a study conducted by the RAND Corporation—a
nonpartisan, nonprofit military think tank founded by the U.S.
Air Force. Rand Report, ECF No. 40-35.

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any significant burdens on readiness, deployability, or unit
cohesion.”

Wilmoth ¶ 23, ECF No. 40-38.

On June 30, 2016, then-Secretary of Defense Carter issued a
directive rescinding the policy of discriminating against men
and women who are transgender.
1, ECF No. 40-4.

Open Serv. Dir., Pls.’ Mot. Ex.

The Open Service Directive provided that “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.”
Attach. § 1(a).

Id. at

Men and women who are transgender are “subject

to the same standards as any other Service member of the same
gender.”

Id. at Attach. § 1(b).

The Directive further provided

that medical conditions affecting transgender service members
would be treated “in a manner consistent with a Service member
whose ability to serve is similarly affected for reasons
unrelated to gender identity or gender transition.”
Attach. § 1(c).

Id. at

These medical services included medical

treatment necessary to transition gender while serving.
Attach. § 3(a).

Id. at

The Directive also announced that individuals

wishing to join the military would not be prohibited from doing
so solely because they are transgender, although there were
additional stringent medical requirements to ensure fitness for

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duty.

Id. at Attach. § 2.

The implementation of the accession5

policy was scheduled to begin “[n]ot later than July 1, 2017.”6
Id. at Attach. § 2(a).
On June 30, 2017, the day before new enlistments of
transgender persons were scheduled to begin, current Secretary
of Defense Jim Mattis announced that it was necessary to defer
new transgender enlistments for an additional six months to
January 1, 2018, while he reviewed the policy.
Pls.’ Mot. Ex. 8, ECF No. 40-11.

Mattis Mem.,

He added that his announcement

did not otherwise change the Open Service Directive and that “we
will continue to treat all Service members with dignity and
respect.”

Id.

Shortly thereafter, on July 26, 2017, President Trump
precipitated a change to the policy in force by announcing on
Twitter7 that “the United States will not accept or allow
Transgender individuals to serve in any capacity in the U.S.
Military.”

Pls.’ Mot. Ex. 19, ECF No. 40-22.

5

President Trump

Accession refers to the process of bringing new enlisted
recruits and officer candidates into the military.
6
The deadline allowed the DoD a year to prepare for
implementation. Given that the pre-established date for the
Presidential election was November 8, 2016, it was understood
that the deadline extended into a new Administration.
7
President Trump later claimed that his Twitter announcement
did the military a “great favor” by ending the “confusing issue”
of transgender service. Cooper, Trump Says Transgender
Ban Is a ‘Great Favor’ for the Military, N.Y. Times (Aug. 10,
2017), Pls’. Mot. Ex. 9, ECF No. 40-12.

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formalized the transgender service member ban on August 25,
2017, in a Memorandum (“the President’s Memorandum”) stating
that in his judgment, the DoD had “failed to identify a
sufficient basis to conclude” that the Open Service Directive
“would not hinder military effectiveness and lethality, disrupt
unit cohesion, or tax military resources.” President’s Mem. §
1(a), Pls.’ Mot. Ex. 18, ECF No. 40-21. The memorandum
addressed, and rescinded, each component of the Open Service
Directive. Id. at §§ 1(b), 2.
The instant lawsuit was filed on August 8, 2017, and three
others8 have been filed in response to the President’s policy
change.

Plaintiffs here seek declaratory and injunctive relief

(including a Motion for Preliminary Injunction).

Defendants

seek dismissal of the Amended Complaint [ECF No. 39] pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and
denial of Plaintiffs’ Motion for Preliminary Injunction.
For reasons as stated herein, the Court GRANTS Plaintiffs’
Motion for Preliminary Injunction [ECF No. 40], and GRANTS IN

8

Doe 1 v. Trump, No. 17-cv-0159-CKK, filed Aug. 9, 2017 in
the United States District Court for the District of Columbia;
Karnoski v. Trump, No. 17-cv-01297-MJP, filed Aug. 28, 2017 in
the United States District Court for the Western District of
Washington at Seattle; Stockman v. Trump, No. 17-cv-1799-JGB-KK,
filed on Sept. 5, 2017 in the United States District Court for
the Central District of California.

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PART and DENIES IN PART Defendants’ Motion to Dismiss [ECF No.
52].

II.

BACKGROUND
A.

Transgender Military Policy Prior to June 2016

“On September 20, 2011, the military policy known as ‘Don’t
Ask, Don’t Tell’ (DADT) ended, allowing gay, lesbian and
bisexual service members to serve openly.”

Gates & Herman,

Transgender Military Service in the United States (May 2014),
ECF No. 40-7. However, until June 2016, military policies
continued to exclude transgender people from serving openly.
Id.

Transgender individuals wanting to join the military were

prohibited from doing so, and transgender individuals already
serving were subject to discharge if their condition became
known.

Id.

See also Brown Decl. 9-14, ECF No. 40-32 (noting

that pre-2016 military policy listed “Sexual Gender and Identity
Disorders” among conditions that rendered a service member unfit
and subject to discharge).

B.

Transgender Open Service Directive

On June 30, 2016, after a year-long study, then-Secretary
of Defense Carter issued a Directive–type Memorandum (“DTM”)
mandating the establishment of policy and procedures for “the

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retention, accession, separation, in-service transition, and
medical coverage for transgender personnel serving in the
Military Services.”
40-4.

Open Serv. Dir., Pls.’ Mot. Ex. 1, ECF No.

The DTM stated:
The policy of the Department of Defense
is that service in the United States
military should be open to all who can meet
the rigorous standards for military service
and readiness. Consistent with the policies
and procedures set forth in this memorandum,
transgender individuals shall be allowed to
serve in the military.

Id. at 2.
The DTM procedures included three main components.
First, retention.

Effective June 30, 2016, “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.”

Id. at Attach. §

1(a). Transgender service members became subject to the same
standards as any other service member of the same gender.

Id.

at Attach. § 1(b).
Second, accession. Not later than July 1, 2017, the DoD
Instruction 6130.03 was to be updated to reflect changed
policies and procedures related to medical standards for entry
into the military.

Id. at Attach. § 2(a). A history of gender

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dysphoria9 continued to be disqualifying unless the applicant was
medically-certified as having been “stable without clinically
significant distress or impairment in social, occupational, or
other important areas of functioning for 18 months.”

Id.

Also,

a history of medical treatment with gender transition continued
to be disqualifying unless the applicant had completed medical
treatment and had been stable in the preferred gender for 18
months, and if the applicant was receiving hormone treatment,
the individual had been stable on such treatment for 18 months.
Id.

Further, a history of sex-reassignment surgery continued to

be disqualifying unless a period of 18 months had passed since
the most recent surgery, no additional surgeries were required,
and the applicant had no functional limitations or complications
persisting from the surgery.

Id.

The Secretaries of the

Military Departments and Commandant of the United States Coast
Guard could waive the 18-month period in individual cases.

Id.

at Attach. § 2(b).
Third, sex reassignment surgery. Effective October 1, 2016,
the DTM procedures allowed for in-service gender transition and

9

Transgender status alone does not constitute a medical
condition; some transgender individuals experience significant
distress due to the gender-sex mismatch and are considered to
have a medical condition called gender dysphoria. RAND Report
5-6, 75, ECF No. 40-35. This condition can be medically treated
with some combination of psychosocial, pharmacological (mainly
hormonal), or surgical care. Id. at 6.

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provided for further guidance on the provision of necessary
medical care and treatment to transgender service members.

Id.

at Attach. §§ 3, 4.
In addition, the DTM included an equal opportunity
statement and clarified the DoD’s position, “consistent with the
U.S. Attorney General’s opinion, that discrimination based on
gender identity is a form of sex discrimination.”
Attach. § 5(a).

Id. at

Education and training materials were to be

developed and disseminated to each Military Department by no
later than October 1, 2016, and each Military Department was
directed to issue implementing guidance and a written training
and education plan by November 1, 2016.

Id. at Attach. §§ 6, 7.

Consistent with the DTM directives, the DoD issued an
Implementation Handbook on September 30, 2016.

DoD, Transgender

Service in the U.S. Military: An Implementation Handbook, ECF
No. 40-9.

C.

President’s Memorandum and Interim Guidance

On June 30, 2017, Secretary of Defense James Mattis
deferred implementation of the DTM’s directive regarding
accession until January 1, 2018.

Mattis Mem., Pls.’ Mot. Ex. 8,

ECF No. 40-11.

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On July 26, 2017, President Trump published three tweets
under the handle @realDonaldTrump:

Pls.’ Mot. Ex. 19, ECF No. 40-22.
Approximately a month later, on August 25, 2017, President
Trump issued a memorandum entitled “Presidential Memorandum for
the Secretary of Defense and the Secretary of Homeland
Security.”

President’s Mem., Pls.’ Mot. Ex. 18, ECF No. 40-21.

In the first section, President Trump stated:
Until June 2016, the Department of
Defense (DoD) and the Department of Homeland
Security
(DHS)
(collectively,
the
Departments)
generally
prohibited
openly
transgender individuals from accession into

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the United States military and authorized
the discharge of such individuals.
Id. at § 1.
President Trump directed the Departments’ Secretaries “to
return to the longstanding policy and practice on military
service by transgender individuals that was in place prior to
June 2016 . . . .”

Id. at § 1(b) (“the Retention Directive”).

He further directed the Secretaries to “maintain the currently
effective policy regarding accession of transgender individuals
into military service beyond January 1, 2018 . . . .”
2(a) (“the Accession Directive”).

Id. at §

President Trump also directed

the Secretaries to “halt all use of DoD or DHS resources to fund
sex-reassignment surgical procedures for military personnel,
except to the extent necessary to protect the health of an
individual who has already begun a course of treatment to
reassign his or her sex.”

Id. at § 2(b) (“the Sex Reassignment

Surgery Directive”).
The Accession Directive is to take effect on January 1,
2018; the Retention Directive and the Sex Reassignment Surgery
Directive are to take effect on March 23, 2018.

Id. at § 3.

President Trump further directed:
By February 21, 2018, the Secretary of
Defense, in consultation with the Secretary
of Homeland Security, shall submit to me a
plan for implementing both the general
policy set forth in section 1(b) of this

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memorandum and the specific directives set
forth in section 2 of this memorandum.
Id.

He added that “no action may be taken” under the Retention

Directive against transgender individuals currently serving in
the United States military until the Secretary of Defense has
determined how to address such individuals.

Id.

On September 14, 2017, Secretary of Defense James Mattis
issued a memorandum establishing an interim policy until the
directives take effect.
(“Interim Guidance”).

Defs.’ Mem., ECF No. 45, Ex. 1

Under the Interim Guidance policy, there

is no immediate effect on individual service members pending the
implementation plan.

Id.

The Interim Guidance states that

“[n]ot later than February 21, 2018, [Secretary Mattis] will
present the President with a plan to implement the policy and
directives in the Presidential Memorandum.”

D.

Id. at 1.

The Instant Lawsuit

The individual plaintiffs10 and the American Civil Liberties
Union of Maryland, Inc. (“ACLU”) (collectively, “the
Plaintiffs”) have sued Donald J. Trump in his official capacity
as the President of the United States, James Mattis in his
official capacity as Secretary of Defense, Ryan McCarthy in his
official capacity as Acting Secretary of the U.S. Department of
10

Described individually herein in Section II.E.

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the Army, Richard Spencer in his official capacity as Secretary
of the U.S. Department of the Navy, and Heather Wilson in her
official capacity as Secretary of the U.S. Department of the Air
Force (collectively, “the Defendants”) for declaratory and
injunctive relief.

Am. Compl., ECF No. 39.

Plaintiffs seek a declaratory judgment that the policies
and directives encompassed in President Trump’s Memorandum dated
August 25, 2017, violate the Fifth Amendment’s guarantee of
equal protection and substantive due process and are invalid on
their face and as applied to Plaintiffs.

The Amended Complaint

asserts three causes of action:


Count I – Violation of the Equal Protection
Component of the Fifth Amendment’s Due Process
Clause



Count II – Violation of Substantive Due Process



Count III – Violation of 10 U.S.C. § 1074.

Plaintiffs’ Motion for Preliminary Injunction [ECF No. 40]
seeks to bar Defendants from enforcing the policies and
directives encompassed in President Trump’s August 25, 2017,
Memorandum until such time as the Court renders a final judgment
on the merits of this action.
On October 12, 2017, Defendants filed a Motion to Dismiss
[ECF No. 52], seeking dismissal pursuant to Rules11 12(b)(1) and

11

All “Rule” references cited herein are to the Federal Rules

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12(b)(6) and denial of any Preliminary Injunction.

Defendants

assert that this Court does not have jurisdiction over this
action because Plaintiffs have not suffered an injury sufficient
to establish standing and because the issues presented are not
ripe for review.

Defendants contend that “Plaintiffs have not

stated plausible claims that the President’s decision to
maintain the status quo while Secretary Mattis studies military
service by transgender individuals violates equal protection,
due process, or Federal statutes.”

Reply 14, ECF No. 77.

In addition to the parties’ briefs and arguments, the Court
has received and considered the following briefs from Amicus
Curiae in support of Plaintiffs’ Motion for Preliminary
Injunction:


The Trevor Project12 [ECF No. 62],



Retired Military Officers and Former National Security
Officials [ECF No. 71], and



Amici States Massachusetts, California, Connecticut,
Delaware, Hawaii, Illinois, Iowa, Maryland, New
Mexico, New York, Oregon, Pennsylvania, Rhode Island,
Vermont, and the District of Columbia [ECF No. 73].

of Civil Procedure.
12
Described as “the nation’s largest lesbian, gay, bisexual,
transgender, queer, and questioning (“LGBTQ”) youth crisis
intervention and suicide prevention organization.” Trevor
Project Amicus Brief 1, ECF No. 62.

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E.

The Individual Plaintiffs13
1.

Petty Officer First Class Brock Stone

Brock Stone (“Stone”) is 34 years old and has served 11
years in the United States Navy, including a 9-month deployment
to Afghanistan.

Stone is currently assigned, until August 2020,

to a unit at Fort Meade in Maryland, where he works as a
computer analyst.

Stone was awarded an achievement medal in

connection with his deployment, and he has received multiple
other commendations, including the Joint Commendation Medal, the
Navy Commendation Medal, the Afghan Campaign Medal, a flag
letter of commendation, and multiple recommendations for early
promotion.

He is currently eligible for promotion to Chief

Petty Officer.

Stone’s goal is to serve for at least 20 years

and qualify for retirement benefits.

His current contract runs

until 2023, which would end three years short of his achieving
enough years in service to meet his retirement goal.
Stone has been undergoing hormone therapy as a medicallynecessary part of his gender transition.

Since arriving at Fort

Meade in July 2017, he has received medically-necessary
treatment related to his gender transition at Walter Reed
National Military Medical Center in Bethesda, Maryland. Prior to
13

Plaintiffs’ genders are referred to herein by the gender as
recognized by the Defense Enrollment Eligibility Report System
(“DEERS”), except in one case as noted where the formal changed
gender remains pending.

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his transfer to Fort Meade, Stone was close to finalizing a
medical treatment plan that included surgery.

After the

transfer in July 2017, he had to restart the treatment plan, but
it is now in the final approval stage.

The treatment plan will

be sent to the medical review board at Walter Reed in November
2017 and thereafter will be submitted to Navy Medical East for
final medical approval.

Plaintiffs assert that it is “highly

likely that Petty Officer Stone will not receive one or both of
his medically-necessary surgeries before March 23[, 2018].”
Opp. Dismiss 11, ECF No. 66.

2.

Staff Sergeant Kate Cole

Kate Cole (“Cole”) is 27 years old and has served in the
United States Army for almost ten years, including a one-year
deployment to Afghanistan where she served as a team leader and
designated marksman.

Cole is currently stationed at Fort Polk,

Louisiana, working as a Cavalry Scout, where she operates with a
tank unit.

Since enlisting at age 17, Cole has received seven

achievement medals and two Army commendation medals. She
recently received orders to enroll in Drill Sergeant School
starting on January 3, 2018, with an anticipated graduation date
of March 7, 2018.

Following her return from Drill Sergeant

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School, she is scheduled to change station from Fort Polk,
Louisiana to Fort Benning, Georgia.
Cole has been undergoing hormone therapy and was scheduled
to receive medically-necessary surgery related to her gender
transition in or around September 2017.

On September 8, 2017,

she was informed that her surgical treatment was denied and her
pre-surgical consultation was cancelled.

Cancellation has been

remedied, but “Cole’s treatment plan calls for two additional
surgeries, neither of which she will be able to undergo before
March 23[, 2018], and one of which she is not even eligible for
until after that date.” Opp. Dismiss 11, ECF No. 66.

3.

Senior Airman John Doe

John Doe (“Doe”) is 25 years old and has served for
approximately six years on active duty in the United States Air
Force, during which he was awarded “airman of the year.”
also served in Qatar for a six-month deployment.

Doe

Doe is

currently stationed at Little Rock Air Force Base, Arkansas and
serves as the suicide prevention and interpersonal violence
instructor for the base and is pursuing cryogenics
certification.

Doe reenlisted on September 9, 2017.

In 2014, Doe began his gender transition, including
undergoing certain surgeries, for which he paid out-of-pocket.

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He has been undergoing hormone therapy as a medically-necessary
part of his gender transition and planned to receive an
additional medically-necessary surgery in August 2017. Doe was
informed by email from the medical command at the base where he
was scheduled to undergo the surgery that all gender-transitionrelated surgeries were on hold.

Defendants assure that,

pursuant to the Interim Guidance, the surgery was not deleted
from Doe’s treatment plan and can be rescheduled at his request.

4.

Airman First Class Seven Ero George

Seven Ero George (“George”) is 41 years old and has been
enlisted in the Air National Guard since 2015.

George is

currently stationed at the Selfridge Air National Guard Base,
Michigan and serves in the base security force, where he is a
member of the base Honor Guard.

He performs military funeral

honors for deceased veterans, retirees, and active duty members;
provides dignified transfers, and performs color guard details.
George has a Bachelor’s Degree in General Studies from the
University of Michigan and is currently taking additional
training as a nurse.

He is scheduled to complete his

Associate’s Degree in nursing in December 2017 and plans to
pursue a program to earn his Bachelor’s Degree in nursing, which
he expects to be able to complete in 12-18 months.

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George intends to seek a commission, which subjects him to
the Army’s accession policies.

He has been unable to pursue a

commission to date because the historical ban has not yet
expired and because his gender has not yet been updated in the
Defense Enrollment Eligibility Report System (“DEERS”), which
still lists him as female.

George believes all required

paperwork has been submitted to update his DEERS gender, his
letters of recommendation are lined up, and he expects to be
ready to commission immediately upon the lift of the ban in
January 2018.
As a medically-necessary part of his gender transition,
George has been undergoing hormone therapy and has undergone a
medically-necessary surgery, but no further surgeries are
required under his medical treatment plan.

5.

Petty Officer First Class Teagan Gilbert

Teagan Gilbert (“Gilbert”) is 31 years old and has served
in the United States Navy for 13 years, including a one-year
deployment to Afghanistan.

Gilbert is currently serving as an

information and space systems technician in the Naval Reserve
stationed in Phoenix, Arizona.

She has been pursuing an

undergraduate degree as a prerequisite to commission as an
officer and is scheduled to complete her Bachelor’s Degree in

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Earth and Space Exploration in the Spring of 2019, as well as an
undergraduate certificate in Geographic Information Systems.
Gilbert’s current term of service expires in February 2018, and
she is in the process of reenlisting in the Navy for another
six-year term.
Gilbert has been undergoing hormone therapy as a medicallynecessary part of her gender transition.

She has a medical

appointment scheduled for January 2018 to update her treatment
plan to include medically-indicated surgical treatment.

6.

Technical Sergeant Tommie Parker

Tommie Parker (“Parker”) is 54 years old and has served in
the Marine Corps for four years and has served in the Air
National Guard for 26 years.

During her sixteen plus years of

active duty, she has had deployments to Okinawa with the Marine
Corps and Germany with the Air National Guard.

She is currently

stationed at Stewart Air National Guard Base, New York, working
as a fuel technician.
Parker’s current term of service expires in January 2018.
Her commanding officer informed her that he would recommend her
for active duty reenlistment for an additional term of three
years thereafter.

Parker is eligible for retirement in three-

and-a-half years, and her goal is to serve until retirement.

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Parker is undergoing hormone therapy as a medicallynecessary part of her gender transition and is currently paying
out-of-pocket while waiting for her transition plan to be fully
approved.

She does not intend to have any transition-related

surgeries.

F.

The D.C. Court Decision

On Monday, October 30, 2017, a memorandum and order was
issued in a related case, Doe 1 v. Trump, in the United States
District Court for the District of Columbia (“D.C. Court”).

The

D.C. Court preliminarily enjoined implementation of the
Retention Directive and the Accession Directive but not the Sex
Reassignment Surgery Directive.

Doe 1 v. Trump, --- F. Supp. 3d

----, No. CV 17-1597 (CKK), 2017 WL 4873042 (D.D.C. Oct. 30,
2017).
In Doe 1, current and aspiring transgender service members
challenged the Accession, Retention, and Sex Reassignment
Surgery Directives on the grounds that the Directives violated
plaintiffs’ Fifth Amendment equal protection and due process
rights.

Id. at *1.

The Doe 1 plaintiffs also argued that the

defendants were estopped from rescinding the rights, benefits,
and protections promised to the plaintiffs.

21

Id. at *2.

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The D.C. Court held that the Doe 1 plaintiffs had standing
to challenge the Accession and Retention Directives but lacked
standing to challenge the Sex Reassignment Surgery Directive.
Id.

The court found that the Presidential Memorandum

unequivocally directed the military to prohibit indefinitely the
accession of transgender individuals and to authorize their
discharge and that there was no reason to believe that these
directives would not be executed.

Id. at *1.

The court held

that the plaintiffs had established that they would be injured
by these directives, “due both to the inherent inequality they
imposed, and the risk of discharge and denial of accession that
they engender. Further delay would only serve to harm the
Plaintiffs.”

Id.

The D.C. Court also found that the Doe 1 plaintiffs were
likely to prevail on their Fifth Amendment challenge of the
Accession and Retention Directives.

Id. at *2.

First, the

court found that “[a]s a form of government action that
classifies people based on their gender identity, and disfavors
a class of historically persecuted and politically powerless
individuals, the President’s directives are subject to a fairly
searching form of scrutiny.”

Id. at *2.

The Directives could

not survive such scrutiny because they were not “genuinely based
on legitimate concerns regarding military effectiveness or

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budget constraints, but [we]re instead driven by a desire to
express disapproval of transgender people generally.”

Id.

More specifically, the court found that a number of factors
—including the breadth of the exclusion, the unusual
circumstances surrounding the President’s announcement, the
reasons given for the Directives not appearing to be supported
by any facts, and the recent rejection of those reasons by the
military itself—“strongly suggest that plaintiffs’ Fifth
Amendment claim is meritorious.”

Id.

Finally, the court

dismissed without prejudice Plaintiffs’ estoppel claim, because
the complaint “lack[ed] allegations of the sort of
particularized representations, reliance, or government
misconduct that could justify estoppel against the government.”
Id.
The D.C. Court granted in part and denied in part the Doe 1
plaintiffs’ motion for a preliminary injunction, enjoining the
enforcement of the Accession and Retention Directives and
reverting the policy to the status quo that had existed before
the Presidential Memorandum.

Id.

The court also granted in

part and denied in part the defendants’ motion to dismiss the
lawsuit, thus dismissing plaintiffs’ estoppel challenge and
dismissing the plaintiffs’ challenge of the Sex Reassignment
Surgery Directive for lack of jurisdiction.

23

Id.

The D.C. Court

 Case 1:17-cv-02459-MJG Document 85 Filed 11/21/17 Page 24 of 53

found that none of the plaintiffs in that case could demonstrate
a non-speculative injury-in-fact with respect to the Sex
Reassignment Surgery Directive.

Id. at *51.

III. DISCUSSION
A.

The Court’s Jurisdiction
1.

Legal Standard
a.

Standing

The issue of plaintiff standing presents a threshold
jurisdictional question because “Article III of the U.S.
Constitution limits the jurisdiction of federal courts to
‘Cases’ and ‘Controversies.’” Beck v. McDonald, 848 F.3d 262,
269 (4th Cir. 2017), cert. denied sub nom. Beck v. Shulkin, 137
S. Ct. 2307 (2017) (quoting U.S. Const. art. III, § 2).

“The

core goal of the standing inquiry is to ensure that a plaintiff
bringing an action has enough of a stake in the case to litigate
it properly.”

Pye v. United States, 269 F.3d 459, 466 (2001).

The plaintiff bears the burden of proving jurisdiction by
establishing the three “irreducible minimum requirements” of
standing:
(1)

an injury-in-fact (i.e., a concrete and
particularized invasion of a legally
protected interest);

(2)

causation (i.e., a fairly traceable
connection between the alleged injury

24

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in fact and the alleged conduct of the
defendant); and
(3)

redressability (i.e., it is likely and
not
merely
speculative
that
the
plaintiff’s injury will be remedied by
the relief plaintiff seeks in bringing
suit).

Id. (quoting David v. Alphin, 704 F.3d 327, 333 (4th Cir.
2013)); Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540,
1547, as revised (May 24, 2016).
At the pleading stage, plausible factual allegations may
suffice to demonstrate that each element of standing has been
adequately pleaded.

Spokeo, 136 St. Ct. at 1547; Beck, 848 F.3d

at 270 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992)).

However, the standing analysis is “especially rigorous

when reaching the merits of the dispute would force [the court]
to decide whether an action taken by one of the other two
branches of the Federal Government was unconstitutional.”
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013).
A defendant may challenge standing at the motion to dismiss
stage either facially or factually.

Wikimedia Found. v. Nat’l

Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017)(quoting Beck, 848
F.3d at 270).

“In a facial challenge, the defendant contends

that the complaint ‘fails to allege facts upon which [standing]
can be based,’ and the plaintiff ‘is afforded the same
procedural protection’ that exists on a motion to dismiss.”

25

Id.

 Case 1:17-cv-02459-MJG Document 85 Filed 11/21/17 Page 26 of 53

(quoting Adams, 697 F.2d at 1219). In a factual challenge,
however, a trial court may look beyond the complaint to
determine if there are facts to support the jurisdictional
allegations. Id.

“Unless the jurisdictional facts are

intertwined with the facts central to the merits of the dispute,
the district court may . . . resolve the jurisdictional facts in
dispute by considering evidence outside the pleadings, such as
affidavits.”

U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 348

(4th Cir. 2009) (citations omitted).

b.

Ripeness

A second Article III threshold inquiry is whether the
dispute is ripe for adjudication.

Lansdowne on the Potomac

Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d
187, 198 (4th Cir. 2013).

The requirement that a case be ripe

for decision is “drawn both from Article III limitations on
judicial power and from prudential reasons for refusing to
exercise jurisdiction.” Reno v. Catholic Soc. Servs., 509 U.S.
43, 57 n. 18 (1993).
To determine if a case is ripe, the Fourth Circuit balances
“(1) the fitness of the issues for judicial decision and (2) the
hardship to the parties of withholding court consideration.”
Cooksey v. Futrell, 721 F.3d 226, 2226 (4th Cir. 2013) (quoting

26

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Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808
(2003)); Lansdowne, 713 F.3d at 198.
“[A] case is ‘fit for judicial decision when the issues are
purely legal and when the action in controversy is final and not
dependent on future uncertainties.’”

Lansdowne, 713 F.3d at 198

(quoting Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006)).
“The hardship prong is measured by the immediacy of the threat
and the burden imposed on the [plaintiff].” Id. at 199 (quoting
Charter Fed. Sav. Bank v. Office of Thrift Supervision, 976 F.2d
203, 208–09 (4th Cir. 1992)).

2.

Injury-in-fact

There is no dispute that the Plaintiffs have satisfied the
causation and redressability elements of standing.

While the

matter is disputed, the Court finds that Plaintiffs have met
their burden to satisfy the need for an injury-in-fact.
An injury-in-fact is the “[f]irst and foremost” of
standing’s three elements. Steel Co. v. Citizens for Better
Env’t, 523 U.S. 83, 103 (1998).

To suffer an injury-in-fact,

the plaintiff must have suffered “‘an invasion of a legally
protected interest’ that is ‘concrete and particularized’ and
‘actual or imminent, not conjectural or hypothetical.’”
136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560).

27

Spokeo,

The Spokeo

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court stated that to constitute a concrete injury, an injury
“must be ‘de facto’; that is, it must actually exist . . . [that
is] ‘real,’ and not ‘abstract.’”

Id.

“This does not mean, however, that the risk of real harm
cannot satisfy the requirement of concreteness.”

Id. at 1549.

A court may find standing based on a threatened injury that is
“certainly impending” or if there is a “substantial risk” that
the harm will occur.

Beck, 848 F.3d at 275 (quoting Clapper,

568 U.S. at 409, 414 n.5).
Defendants contend that the Interim Guidance maintains the
status quo while the military studies the “President’s policy
directive,” and therefore, they contend that none of the
Plaintiffs face a current or imminent threat of injury.

Defs.’

Mot. 12, ECF No. 52-1. Defendants state that “it is unclear
whether those currently serving members will be affected by the
future policy regarding service by transgender individuals once
it is finalized and implemented.”

Id. at 2.

When reviewing the effect of the directives in the
President’s Memorandum, the Court finds persuasive and agrees
with the D.C. Court’s analysis of the import of the President’s
Memorandum.

See Doe 1, 2017 WL 4873042 at *16-18 (“there is a

substantial likelihood that transgender individuals will be
indefinitely prevented from acceding to the military as of

28

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January 1, 2018, and that the military shall authorize the
discharge of current service members who are transgender as of
March 23, 2018.”).

As Plaintiffs allege, the result of the

President’s Memorandum, once implemented, constitutes a return
to the policy in place prior to June 2016 “until President Trump
is personally persuaded that a change is warranted.” Am. Compl.
¶ 107.

Although there is no immediate implementation pending

the provision of the requested plan, the Interim Guidance states
that “[n]ot later than February 21, 2018, [Secretary Mattis]
will present the President with a plan to implement the policy
and directives in the Presidential Memorandum.” Interim Guidance
1, ECF No. 45, Ex. 1.

“The Court must and shall assume that the

directives of the Presidential Memorandum will be faithfully
executed.”

Doe 1, 2017 WL 4873042, at *17.

Therefore, the

protections of the Interim Guidance expire on February 21, 2018.
The Court cannot interpret the plain text of the
President’s Memorandum as being a request for a study to
determine whether or not the directives should be implemented.
Rather, it orders the directives to be implemented by specified
dates.

President’s Mem. § 3, Pls.’ Mot. Ex. 18, ECF No. 40-21

(“shall take effect on January 1, 2018 [and] March 23, 2018”).

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a.

Retention Directive Injury

The Retention Directive, which authorizes the discharge of
service members from the military on the basis of transgender
status alone, subjects all of the individual Plaintiffs14 to the
threat of discharge as administratively unfit even if they meet
the military’s demanding medical fitness standards.

While it is

possible, as Defendants contend, that none of the Plaintiffs
will be discharged on March 23, 2018, they certainly face a
substantial risk of being discharged solely on the basis of
being transgender.
Importantly, Plaintiffs allege that becoming “subject to
discharge” solely for being transgender is a loss of a right
they have had since June 2016, withdrawing the guarantee that
protects their ability to serve on terms equal to those applied
to others.

Am. Compl. Count I, ECF No. 39.

The Retention

Directive effectively constitutes a revocation of rights that
transgender people had been given.
protection is an injury.

This revocation of equal

See, e.g., Planned Parenthood Of S.C.

Inc. v. Rose, 361 F.3d 786, 790 (4th Cir. 2004) (“Discriminatory
treatment is a harm that is sufficiently particular to qualify
as an actual injury for standing purposes.”).
14

Plaintiff Stone is a member of the ACLU of Maryland, which
gives the ACLU associational standing on the basis of the
injuries experienced by Stone. Am. Compl. ¶ 18; Hunt v.
Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).

30

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Further, Plaintiffs allege that they are now suffering from
the uncertainty, the destabilization of their lives and careers,
and the stigma associated with being singled out as unfit for
service.

Am. Compl. ¶¶ 142-143.

Stigmatic injury can be held

sufficient to support standing. See Allen v. Wright, 468 U.S.
737, 755 (1984) (finding that “stigmatizing injury often caused
by racial discrimination” is a type of “noneconomic injury” that
is “sufficient in some circumstances to support standing”).

In

the instant case, the Court finds that Plaintiffs’
stigmatization is an additional alleged harm that provides
support to Plaintiffs’ standing arguments, but the Court need
not, and does not, address whether it would be sufficient on its
own.
In sum, the Court finds that Plaintiffs have met their
burden to demonstrate standing to challenge the Retention
Directive.

b.

Accession Directive Injury

The Accession Directive prohibits transgender individuals
from entering or seeking a commission in the military solely on
the basis of their transgender status.

The current prohibition

is set to expire on December 31, 2017, but the directive in the
President’s Memorandum extends the prohibition indefinitely.

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Defendants contend that Plaintiffs have not been injured by
the Accession Directive because no one has applied for accession
into the military and been denied.

Defendants assert that

Plaintiffs George and Gilbert’s plans to apply for a commission
are too speculative and that they could apply for a waiver to
allow their accession into the military under the Interim
Guidance.
Plaintiffs George and Gilbert allege that they face
imminent harm because they will be denied accession into the
military as commissioned officers.

Am. Compl. ¶¶ 40, 47, ECF

No. 39; Decl. George, ECF No. 40-42; Suppl. Decl. George, ECF
No. 66-9; Suppl. Decl. Gilbert, ECF No. 66-11.

Plaintiff

Gilbert has one year of coursework left in her degree before she
plans to apply to Officer Candidate School and return to “active
duty” status.

However, Plaintiff George expects to be ready to

commission immediately upon the lift of the ban in January 2018.
Plaintiffs clarified at the hearing that George
is ready, willing, and able to apply to
directly commission as an officer as soon as
he can.
All he’s been waiting for is for
the final change in his gender market in the
[DEERS] system to go through.
He submitted
all that paperwork.
It should go through
any minute. He wants to apply the first day
that he can.
. . . .

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[H]is ability to commission and his
desire to commission are not contingent on
him completing that nursing program.
As soon as he can commission, he will.
And he would do it on January 1st if he were
allowed to do so.
Hr’g Tr. 48:4-17.
George has demonstrated that he is eligible to commission
as an officer.

He met with a recruiter in October 2016 to

pursue an active duty commission.
66-9.

Suppl. Decl. George, ECF No.

George’s plan and efforts to implement his plan are not

speculative.

The Court finds that Plaintiff George is subject

to a substantial risk that his attempt to accede into the
military as a commissioned officer will be prohibited solely on
the basis of his transgender status.
Accordingly, the Court finds that Plaintiffs have met their
burden to demonstrate standing to challenge the Accession
Directive.

c.

The Sex Reassignment Surgery Directive

The Sex Reassignment Surgery Directive prohibits the
expenditure of military resources on sex-reassignment surgical
procedures.

President’s Mem. § 2(b), ECF No. 40-21. This

section takes effect on March 23, 2018. Id. § 3.

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Defendants contend that no Plaintiff can demonstrate
injury-in-fact because the military is continuing to provide
transition-related medical care under the Interim Guidance.

Any

cancellations that occurred after the President’s Memorandum
have subsequently been remedied, so no one has been denied
transition-related medical care.

Defendants assert that the

Plaintiffs in the instant case, like the plaintiffs in Doe 1,
have not “‘demonstrated that they are substantially likely to be
impacted’ by the relevant portion of the [President’s]
Memorandum.” Defs.’ Reply 8, ECF No. 77 (quoting 2017 WL
4873042, at *24).
In Doe 1, the D.C. Court held that the Doe 1 plaintiffs did
not have standing to challenge the Sex Reassignment Surgery
Directive because none of them had demonstrated an injury-infact with respect to that Directive.

2017 WL 4873042 at *51.

First, the court noted that, for the two Doe 1 plaintiffs who
were implicated by the provision, the risk of being impacted was
not sufficiently great to confer standing.

Id.

One of the Doe 1 plaintiffs alleged that her scheduled
transition-related surgery had been canceled.

However, the

defendants submitted a declaration, which revealed that her
application for supplemental health care waiver was currently
being processed, and her transition related-surgery had been

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rescheduled for January 4, 2018.

Id. at *52.

The defendants

represented that this date remained unaffected by the
Presidential Memorandum.

Id.

Therefore, the D.C. Court

concluded that this plaintiff had failed to show that “she will
not receive the surgery prior to the effective date of the Sex
Reassignment Surgery Directive.”

Id.

A second Doe 1 plaintiff had developed a transition
treatment plan but was not planning to begin her treatment until
after a long-term deployment in Iraq.

Id.

The D.C. Court

concluded that “[g]iven the possibility of discharge, the
uncertainties attended by the fact that she has yet to begin any
transition treatment, and the lack of certainty on when such
treatment will begin, the prospective harm engendered by the Sex
Reassignment Surgery Directive is too speculative . . . .”

Id.

In the instant case, Plaintiffs Cole, Doe, Gilbert, and
Stone are potentially impacted by the Sex Reassignment Surgery
Directive.

At the hearing, Plaintiffs asserted that they would

rely on Plaintiffs Cole and Stone for standing to challenge the
Sex Reassignment Surgery Directive.

Hr’g Tr. 62:7-8.

Plaintiff Cole has a final, approved medical plan that
calls for two additional surgeries.
66-8.

Suppl. Decl. Cole, ECF No.

Because Cole will be attending Drill Sergeant School from

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January 3, 2018 until March 7, 2018, it is impossible for her to
have both surgeries before the March 23rd deadline.

Id.

Plaintiff Stone has a near-final treatment plan that calls
for two surgeries, needing only a final stamp of approval, which
is not in doubt. Suppl. Decl. Stone, ECF No. 66-13.

The plan

calls for the first of the surgeries in April 2018.

Hr’g Tr.

63:15-17.

Although Stone is trying to move the first surgery up

to February in an attempt to meet the deadline, it seems
unlikely, and the second surgery still needs to be scheduled.
Id. at 18-22, Suppl. Decl. Stone, ECF No. 66-13.
Unlike the first plaintiff in Doe 1, Stone and Cole are
highly unlikely to complete their medically-necessary surgeries
before the effective date of the Directive.

Unlike the second

plaintiff in Doe 1, there is no lack of certainty regarding when
transition treatment will begin for Stone and Cole since
treatment has already begun, and Stone and Cole’s surgeries are
endangered by the Directive’s deadline.
Plaintiffs also seek to assert a statutory claim in support
of their challenge to the Directive.
No. 39.15

Am. Compl. ¶¶ 163–169, ECF

However, the Court does not find the Amended Complaint

15

Pursuant to 10 U.S.C. § 1074(a), active duty and reserve
members of the United States armed services are entitled to
medical and dental care in military treatment facilities.
Plaintiffs claim that medically-necessary surgery indicated for
the treatment of a gender dysphoria diagnosis is “medical care”

36

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to present factual allegations sufficient to present a plausible
statutory claim.
Defendants argue that the exception in the Directive will
“cover” the Plaintiffs who will not have completed all of their
approved and medically-required sex-reassignment surgeries by
the effective date.

Section 2(b) directs the Secretaries to

“halt all use of DoD or DHS resources to fund sex reassignment
surgical procedures for military personnel, except to the extent
necessary to protect the health of an individual who has already
begun a course of treatment to reassign his or her sex.”
President’s Mem. § 2(b), ECF No. 40-21 (emphasis added).
Defendants assert that because “Plaintiffs have in fact started
a course of treatment to reassign their sex, and have transition
plans either submitted or already in place, the exception may in
fact apply to them.” Defs.’ Reply 9, ECF No. 77 (emphasis
added).

At the hearing, however, Defendants’ counsel could not

commit that the exception would apply to Plaintiffs.

Hr’g Tr.

18:22-19:17, 20:11-19.
Plaintiffs contend that the exception seems to refer to
“situations in which complications arise from surgery performed

that is covered by the statutory right under § 1074(a)(1). Am.
Compl. ¶ 165, ECF No. 39. As a result, Plaintiffs allege that
the Directive will cause them to imminently suffer a violation
of a statutory right. Id. at ¶¶ 165, 167.

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before March 23.”

Pls.’ Opp’n 12, ECF No. 66.

Plaintiffs add

that it is not clear that “any service member with a medical
need for surgery will receive that surgery—even if he or she
received no surgical treatment before March 23.”

Id.

Plaintiffs argue that if the exception were to be interpreted
under the broad terms proposed by Defendants, the “exception”
would essentially nullify the Directive and contravene President
Trump’s premise about the cost of surgical care, adding that
Defendants “may not evade judicial review by advancing (or, in
this case, weakly suggesting) an interpretation of the
challenged action that both is implausible and would fatally
undercut the President’s announced policy.”

Id.

At the

hearing, Plaintiffs added that “the Government, as far as we’re
aware, is not scheduling anything for after March 22nd.”

Hr’g

Tr. 28:17-19; 29:8-9.
The Court finds that it is at the very least plausible that
the exception would not apply to Stone and Cole’s scheduled
post-March-23rd surgeries.

That conclusion is sufficient at

this juncture to raise Plaintiffs’ right to relief above the
speculative and to the plausible level.
Accordingly, the Court finds that Plaintiffs have met their
burden to demonstrate standing to challenge the Sex Reassignment
Surgery Directive.

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3.

Ripe for Review

Defendants assert that the Court is being asked to
prematurely judge the constitutionality of a future Government
policy.

The Defendants’ argument based on alleged uncertainty

of military policy is not supported by the record before the
Court.

The President has expressly directed the military to

“return to the longstanding policy that was in place prior to
June 2016” that “prohibit[s] openly transgender individuals from
accession into the United States military and authorize[s] the
discharge of such individuals.”
40-21.

President’s Mem. § 1, ECF No.

The President directed that the military stop using

military resources to fund sex-reassignment surgical procedures
for military personnel.

Id. at § 2(b).

The President ordered

an implementation plan and set definite implementation dates.
Id. at § 3.

The only uncertainties are how, not if, the policy

will be implemented and whether, in some future context, the
President might be persuaded to change his mind and terminate
the policies he is now putting into effect.

Id. at § 1.

The

validity of the Directives in the President’s Memorandum is fit
for review.
Further, withholding review would impose hardship on the
Plaintiffs.

The hardship inquiry has largely been addressed in

the standing discussion. Plaintiffs have demonstrated to the

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Court’s satisfaction that they are likely to suffer imminent
harm as a result of the Directives in the President’s
Memorandum.

They have further demonstrated that they are

already suffering harmful consequences such as the cancellation
and postponements of surgeries, the stigma of being set apart as
inherently unfit, facing the prospect of discharge and inability
to commission as an officer, the inability to move forward with
long-term medical plans, and the threat to their prospects of
obtaining long-term assignments.

Waiting until after the

Directives have been implemented to challenge their alleged
violation of constitutional rights only subjects them to
substantial risk of even greater harms.
Accordingly, the Court finds that this case is ripe for
review.

B.

Preliminary Injunction
1.

Legal Standard

“The purpose of a preliminary injunction is merely to
preserve the relative positions of the parties until a trial on
the merits can be held.” United States v. South Carolina, 720
F.3d 518, 524 (4th Cir. 2013) (quoting Univ. of Tex. v.
Camenisch, 451 U.S. 390, 395 (1981)).
To obtain a preliminary injunction, a plaintiff must show

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that:
1.

It will likely succeed on the merits;

2.

It is likely to suffer irreparable harm absent
preliminary relief;

3.

The balance of equities tips in its favor; and

4.

An injunction is in the public interest.

Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7,
20 (2008); Centro Tepeye v. Montgomery Cty., 722 F.3d 184, 188
(4th Cir. 2013)(en banc).

The plaintiff has the burden of

establishing that it meets the Winter factors.

Dewhurst v.

Century Aluminum Co., 649 F.3d 287, 293 (4th Cir. 2011).
Statements contained in an uncontroverted affidavit may be
accepted as true.

See, e.g., Elrod v. Burns, 427 U.S. 347, 350

n. 1 (1976) (“For purposes of our review . . . uncontroverted
affidavits filed in support of the motion for a preliminary
injunction are taken as true.”).

The weight to be accorded to

affidavit testimony is within the discretion of the court, and
statements based on belief rather than personal knowledge may be
discounted.

Federal Practice & Procedure § 2949 (collecting

authority).

2.

Likely Success on the Merits

Plaintiffs assert that the Directives in the President’s
Memorandum violate the equal protection and substantive due

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process guarantees of the United States Constitution, as well as
service members’ statutory right to medical care.

The Court

finds that Plaintiffs are likely to succeed on their Equal
Protection claim, as discussed below.

Therefore, the Court

finds it unnecessary to analyze separately the merits of the
Substantive Due Process claim and the Violation of Statute
claim.
The men and women who serve in the Armed Forces are
“protected by the Fifth Amendment’s Due Process Clause[,which]
contains within it the prohibition against denying to any person
the equal protection of the laws.”

United States v. Windsor, --

- U.S. ----, 133 S. Ct. 2675, 2695 (2013); Frontiero v.
Richardson, 411 U.S. 677, 690–91 (1973).

To succeed on an equal

protection claim, Plaintiffs must demonstrate that they have
been treated differently from others who are similarly situated
and also show that the unequal treatment was the result of
“intentional or purposeful discrimination.”

Morrison v.

Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).

If Plaintiffs can

make this showing, the court must then determine “whether the
disparity in treatment can be justified under the requisite
level of scrutiny.”

Id.

There is no doubt that the Directives in the President’s
Memorandum set apart transgender service members to be treated

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differently from all other military service members.

Defendants

argue that deference is owed to military personnel decisions and
to the military’s policymaking process.
disagree.

The Court does not

However, the Court takes note of the Amici of retired

military officers and former national security officials, who
state “this is not a case where deference is warranted, in light
of the absence of any considered military policymaking process,
and the sharp departure from decades of precedent on the
approach of the U.S. military to major personnel policy
changes.”

Amicus Br. 6, ECF No. 65-1.

President Trump’s tweets

did not emerge from a policy review, nor did the Presidential
Memorandum identify any policymaking process or evidence
demonstrating that the revocation of transgender rights was
necessary for any legitimate national interest.

Based on the

circumstances surrounding the President’s announcement and the
departure from normal procedure, the Court agrees with the D.C.
Court that there is sufficient support for Plaintiffs’ claims
that “the decision to exclude transgender individuals was not
driven by genuine concerns regarding military efficacy.”

Doe 1,

2017 WL 4873042, at *30.
The Court finds persuasive the D.C. Court’s reasons for
applying intermediate scrutiny: transgender individuals appear
to satisfy the criteria of at least a quasi-suspect

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classification, and the Directives are a form of discrimination
on the basis of gender.

Id. at *27-28.

The Court also adopts

the D.C. Court’s reasoning in the application of intermediate
scrutiny to the Directives and finds that the Plaintiffs herein
are likely to succeed on their Equal Protection claim.

See id.

at *29-32.
Moreover, the Court finds that, based on the exhibits and
declarations currently on the record, the Directives are
unlikely to survive a rational review.

The lack of any

justification for the abrupt policy change, combined with the
discriminatory impact to a group of our military service members
who have served our country capably and honorably, cannot
possibly constitute a legitimate governmental interest.

See U.

S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973).

3.

Irreparable Harm

Plaintiffs must also make a clear showing that they are
likely to be irreparably harmed absent preliminary relief.
Winter, 555 U.S. at 20.
Plaintiffs’ injuries as described above are the result of
alleged violations of their rights to equal protection of the
laws under the Fifth Amendment.

In the context of an alleged

violation of constitutional rights, a plaintiff’s claimed

44

 Case 1:17-cv-02459-MJG Document 85 Filed 11/21/17 Page 45 of 53

irreparable harm is inseparably linked to the likelihood of
success on the merits. See Centro, 722 F.3d at 190.
Accordingly, the Court’s finding that Plaintiffs are likely
to succeed on the merits of their constitutional claim counsels
in favor of finding that, in the absence of an injunction, they
will suffer irreparable harm.

4.

Balance of Equities and Public Interest

Courts “must balance the competing claims of injury and
must consider the effect on each party of the granting or
withholding of the requested relief.”

Winter, 555 U.S. at 24.

The Court agrees with the D.C. Court “that Plaintiffs have shown
that the public interest and the balance of hardships weigh in
favor of granting injunctive relief.”
at *33.

Doe 1, 2017 WL 4873042,

As stated:
A bare invocation of “national defense”
simply
cannot
defeat
every
motion
for
preliminary injunction that touches on the
military. On the record before the Court,
there is absolutely no support for the claim
that the ongoing service of transgender
people would have any negative effective on
the military at all. In fact, there is
considerable
evidence
that
it
is
the
discharge and banning of such individuals
that would have such effects. . . .
Moreover, the injunction that will be issued
will in no way prevent the government from
conducting studies or gathering advice or
recommendations on transgender service.

45

 Case 1:17-cv-02459-MJG Document 85 Filed 11/21/17 Page 46 of 53

Id.
Further, this Court has also received an Amici brief from
15 States, urging the Court to enjoin the Directives because a
reinstatement of the pre-June 2016 policies will harm the Amici
States and their residents.

5.

Amici Br. 13, ECF No. 63-1.

Summary

In summary, all the Winter factors weigh in favor of
granting a preliminary injunction. The Court shall enjoin the
enforcement of the Retention, Accession, and Sex Reassignment
Surgical Directives pending the final resolution of this
lawsuit.

C.

Dismissal Under Rule 12(b)(6)
1.

Legal Standard

A motion to dismiss filed pursuant to Rule 12(b)(6) tests
the legal sufficiency of a complaint.

A complaint need only

contain “a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendant fair notice of what the . . . claim is and the grounds
upon which it rests.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)(citations omitted).

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 Case 1:17-cv-02459-MJG Document 85 Filed 11/21/17 Page 47 of 53

When evaluating a 12(b)(6) motion to dismiss, a plaintiff’s
well-pleaded allegations are accepted as true, and the complaint
is viewed in the light most favorable to the plaintiff.
However, conclusory statements or a “formulaic recitation of the
elements of a cause of action” will not suffice.

Id.

A

complaint must allege sufficient facts to “cross ‘the line
between possibility and plausibility of entitlement to relief.’”
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)(quoting
Twombly, 550 U.S. at 557).

2.

Plaintiffs Present Plausible Claims

Defendants have moved to dismiss Plaintiffs’ claims under
Rule 12(b)(6).

For the same reasons as the Court has concluded

that Plaintiffs are likely to succeed on the merits of the Equal
Protection claim, as discussed above, the Court holds that the
allegations are adequate and present plausible claims.

The

Court shall address separately the plausibility of the
Substantive Due Process claim and the Violation of Statute
claim.

a.

Substantive due process

The Supreme Court has stated that “the Due Process Clause
was intended to prevent government officials from abusing

47

 Case 1:17-cv-02459-MJG Document 85 Filed 11/21/17 Page 48 of 53

[their] power, or employing it as an instrument of oppression.”
Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)(citations
omitted).

Substantive due process claims deal with the

reasonableness, or arbitrariness, of the governmental decision.
Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 80 (4th
Cir. 2016).

“Where executive action is concerned, a violation

of an individual’s substantive due process rights exists only
when the official action is so egregious, so outrageous, that it
may fairly be said to shock the contemporary conscience.”
(citations omitted).
What rises to the level of conscience-shocking?
[N]egligently
inflicted
harm
is
categorically
beneath
the
threshold
of
constitutional due process. It is, on the
contrary, behavior at the other end of the
culpability
spectrum
that
would
most
probably support a substantive due process
claim; conduct intended to injure in some
way unjustifiable by any government interest
is the sort of official action most likely
to rise to the conscience-shocking level.
Historically, this guarantee of due process
has been applied to deliberate decisions of
government officials to deprive a person of
life, liberty, or property.
. . . .
Rules of due process are not, however,
subject
to
mechanical
application
in
unfamiliar
territory.
Deliberate
indifference that shocks in one environment
may not be so patently egregious in another,
and
our
concern
with
preserving
the
constitutional proportions of substantive

48

Id.

 Case 1:17-cv-02459-MJG Document 85 Filed 11/21/17 Page 49 of 53

due process demands an exact analysis of
circumstances before any abuse of power is
condemned as conscience shocking.
Lewis, 523 U.S. at 849, 850 (citations omitted).
Plaintiffs assert that President Trump’s arbitrary
decision, plainly inconsistent with all available data, to
exclude men and women who are transgender from military service
serves no legitimate interest and cannot be reconciled with the
liberty and equality protected by the Constitution.
28, ECF No. 40-2.

Pls.’ Mot.

Plaintiffs also argue that it is egregiously

offensive to actively encourage transgender service members to
reveal their status and serve openly, only to use the revelation
to destroy those service members’ careers.

Id. at 29; see also

Pls.’ Reply 30, ECF No. 66 (referring to the maneuver as a “bait
and switch”).
“[T]he Fifth Amendment itself withdraws from Government the
power to degrade or demean . . . .”
2695.

Windsor, 133 S. Ct. at

An unexpected announcement by the President and Commander

in Chief of the United States via Twitter that “the United
States Government will not accept or allow Transgender
individuals to serve in any capacity in the U.S. Military”
certainly can be considered shocking under the circumstances.
Am. Compl. ¶¶ 94-95.

According to news reports provided by

Plaintiffs, the Secretary of Defense and other military

49

 Case 1:17-cv-02459-MJG Document 85 Filed 11/21/17 Page 50 of 53

officials were surprised by the announcement.
104.

Id. ¶¶ 96-97,

The announcement also drew swift criticism from retired

generals and admirals, senators, and more than 100 Members of
Congress.

Id. at ¶¶ 100-102.

A capricious, arbitrary, and

unqualified tweet of new policy does not trump the methodical
and systematic review by military stakeholders qualified to
understand the ramifications of policy changes.
Defendants argue that the President did not actually
announce a policy decision, and it was rational for the
President to order the military to study the issue further.

The

Court agrees that it could find an order for further study to be
rational, but as already discussed, the Court finds that the
President’s Memorandum is not a request for a study but an order
to implement the Directives contained therein.
Courts are reminded to be “reluctant to expand the concept
of substantive due process” and “exercise the utmost care
whenever we are asked to break new ground in this field, lest
the liberty protected by the Due Process Clause be subtly
transformed into the policy preferences of [judges].”
v. Freeman, 195 F.3d 732, 738 (4th Cir. 1999).

Hawkins

Proceeding with

full recognition of that caution, the Court finds that
Plaintiffs have stated a plausible claim sufficient to withstand
a motion to dismiss.

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 Case 1:17-cv-02459-MJG Document 85 Filed 11/21/17 Page 51 of 53

b.

Violation of Statute

Pursuant to 10 U.S.C. § 1074(a)(1), members of the United
States armed services, including active duty and reserve
members, are entitled to medical care in military treatment
facilities.

Plaintiffs allege that the President cannot

override a duly-enacted statute by denying necessary medical
care to a group of service members he happens to disfavor.
Compl. ¶ 169, ECF. No. 39.

Am.

Plaintiffs also allege that the

DoD’s actions in implementing and enforcing the Sex Reassignment
Surgery Directive are not in accordance with law under the
Administrative Procedure Act, 5 U.S.C. § 706(2). Id.
Defendants do not dispute that the military has a statutory
obligation to provide medically-necessary treatment, nor that
surgical procedures are sometimes necessary to treat transgender
individuals who have been diagnosed with gender dysphoria.
Defendants argue, however, that the Interim Guidance, which is
the operative policy at this point in time, is consistent with
the statutory provision and that the exception to the surgical
ban may mean that the statute will not be contravened after the
Sex Reassignment Surgical Directive is implemented on March 23,
2018.

Defendants assert that the statute does not create a

private cause of action to sue the military in civilian court
over the denial of medical treatment.

51

Further Defendants assert

 Case 1:17-cv-02459-MJG Document 85 Filed 11/21/17 Page 52 of 53

that the DoD has broad discretion to shape the scope of services
provided at military facilities, citing 10 U.S.C. § 1074(a)(1)
and § 1073(a)(b).
Plaintiff’s allegations in support of their statutory claim
are conclusory.

They alleged that “DoD’s actions in

implementing and enforcing the ban are not in accordance with
law under the Administrative Procedure Act, 5 U.S.C. § 706(2).”
Am. Compl. ¶ 168. And that “Defendants, including the President,
cannot act in contravention of a validly enacted statute. Their
actions in establishing, implementing, and enforcing the ban on
surgical care are ultra vires.”

Am. Compl. ¶ 169.

Perhaps Plaintiffs could assert an adequate and plausible
statutory claim.

They have not done so here.

The Court shall

dismiss the statutory claim without prejudice to the ability of
Plaintiffs to seek to file an amendment that adequately asserts
such a claim if they can do so.

IV.

CONCLUSION
For the foregoing reasons:
1.

Plaintiffs’ Motion for Preliminary Injunction
[ECF No. 40] is GRANTED.

2.

By separate Order, the Court shall issue a
Preliminary Injunction.

3.

Defendants’ Motion to Dismiss [ECF No. 52] is
GRANTED IN PART and DENIED IN PART.

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 Case 1:17-cv-02459-MJG Document 85 Filed 11/21/17 Page 53 of 53

a) The Court hereby dismisses without prejudice
Count III – Violation of 10 U.S.C. § 1074.
b) Counts I and II remain pending.
5.

Plaintiff shall arrange a case planning
conference to be held by December 15, 2017, to
discuss the scheduling of further proceedings.

SO ORDERED, on Tuesday, November 21, 2017.

/s/__________
Marvin J. Garbis
United States District Judge

53