No. XX-XX

In the Supreme Court of the United States
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
ET AL., PETITIONERS
v.
RYAN KARNOSKI, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
BEFORE JUDGMENT TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI
BEFORE JUDGMENT
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOSEPH H. HUNT
Assistant Attorney
General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
FREDERICK LIU
Assistant to the Solicitor
General
BRINTON LUCAS
Counsel to the Assistant
Attorney General
MARK R. FREEMAN
MARLEIGH D. DOVER
TARA S. MORRISSEY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTION PRESENTED

In 2018, Secretary of Defense James Mattis announced a new policy concerning military service by
transgender individuals. Under the Mattis policy, transgender individuals would be permitted to serve in the
military, while individuals with a history of a medical
condition called gender dysphoria would be disqualified
from military service unless they meet certain conditions. The question presented is:
Whether the district court erred in preliminarily enjoining the military from implementing the Mattis policy nationwide.

(I)

 PARTIES TO THE PROCEEDING

Petitioners (defendants-appellants below) are Donald J. Trump, in his official capacity as President of the
United States; the United States of America; James
Mattis, in his official capacity as Secretary of Defense;
and the United States Department of Defense.
Respondents (plaintiffs-appellees below) are Ryan
Karnoski; Cathrine Schmid, Staff Sergeant; D. L., by
his next friend and mother, FKA: K. G.; Laura Garza;
Human Rights Campaign Fund; Gender Justice
League; Lindsey Muller, Chief Warrant Officer; Terece
Lewis, Petty Officer First Class; Phillip Stephens,
Petty Officer Second Class; Megan Winters, Petty Officer Second Class; Jane Doe; Conner Callahan; and
American Military Partner Association. Respondents
also include the State of Washington, Attorney General’s Office Civil Rights Unit (intervenor-plaintiffappellee below).

(II)

 TABLE OF CONTENTS

Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Constitutional provisions involved .............................................. 2
Statement:
A. The military’s policies ............................................. 2
B. Procedural history ................................................... 9
Reasons for granting the petition ............................................. 15
I.
The question presented warrants this Court’s
immediate review .............................................................16
II. The decision below is wrong ....................................... 19
A. The Mattis policy is consistent with equal
protection................................................................ 19
B. The Mattis policy does not violate respondents’
due process or First Amendment rights ............. 25
C. The nationwide injunction against the Mattis
policy is vastly overbroad ..................................... 25
III.  The Court should grant certiorari before judgment
in all three cases ........................................................... 27
Conclusion ................................................................................... 29
Appendix A — District court order granting preliminary
injunction (Dec. 11, 2017)........................... 1a
Appendix B — District court order denying motion for
clarification (Dec. 29, 2017) ..................... 29a
Appendix C — District court order striking motion to
dissolve preliminary injunction
(Apr. 13, 2018) ........................................... 36a
Appendix D — Notice of appeal (Apr. 30, 2018) .................. 73a
Appendix E — District court order denying stay
(June 15, 2018) .......................................... 75a
Appendix F — Court of appeals order denying stay
(July 18, 2018) ........................................... 82a
Appendix G — Memorandum for Secretaries of the
Military Departments from Secretary
Carter (July 28, 2015) .............................. 84a
(III)

 IV
Table of Contents—Continued:

  

   Page

Appendix H  — Directive-type memorandum 16-005
(June 30, 2016) .......................................... 86a
Appendix I — Memorandum for Secretaries of the
Military Departments from Secretary
Mattis (June 30, 2017) .............................. 96a
Appendix J    — Twitter statement (July 26, 2017) ............... 98a
Appendix K    —  Presidential memorandum
(Aug. 25, 2017) .......................................... 99a
Appendix L  —  Memorandum from Secretary Mattis
(Sept. 14, 2017)........................................ 103a
Appendix M — Interim guidance (Sept. 14, 2017) ............. 108a
Appendix N  — Department of Defense Report and
Recommendations on Military
Service by Transgender Persons
(Feb. 2018) .............................................. 113a
Appendix O — Memorandum for the President from
Secretary Mattis (Feb. 22, 2018) .......... 204a
Appendix P — Presidential memorandum
(Mar. 23, 2018) ........................................ 210a
TABLE OF AUTHORITIES

Cases:
Board of Trs. of the Univ. of Ala. v. Garrett,
531 U.S. 356 (2001).............................................................. 19
Brown v. Glines, 444 U.S. 348 (1980) .................................. 25
Dames & Moore v. Regan, 453 U.S. 654 (1981) .................. 18
Doe 1 v. Trump, No. 17-5267, 2017 WL 6553389
(D.C. Cir. Dec. 22, 2017) ..................................................... 11
Gill v. Whitford, 138 S. Ct. 1916 (2018) ......................... 25, 26
Goldman v. Weinberger, 475 U.S. 503 (1986) ......... 17, 20, 25
Lewis v. Casey, 518 U.S. 343 (1996) ..................................... 26

 V
Cases—Continued:

Page

Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753
(1994) .................................................................................... 26
Meinhold v. United States Dep’t of Def., 34 F.3d 1469
(9th Cir. 1994) ................................................................ 26, 27
Rostker v. Goldberg, 453 U.S. 57 (1981) .................. 19, 20, 24
Stone v. Trump:
280 F. Supp. 3d 747 (D. Md. 2017) ............................. 9, 17
No. 17-2398, 2017 WL 9732004
(4th Cir. Dec. 21, 2017) .............................................. 11
Town of Chester v. Laroe Estates, Inc.,
137 S. Ct. 1645 (2017) ......................................................... 26
Trump v. Hawaii, 138 S. Ct. 2392 (2018) ...................... 25, 26
United States v. Nixon, 418 U.S. 683 (1974)....................... 18
United States v. Virginia, 518 U.S. 515 (1996)............. 22, 23
United States Dep’t of Def. v. Meinhold, 510 U.S. 939
(1993) .............................................................................. 26, 27
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7
(2008) .................................................................................... 20
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952).............................................................. 18
Constitution, statutes, and rules:
U.S. Const.:
Art. III .............................................................................. 26
Amend. I ..................................................2, 9, 10, 11, 25, 27
Amend. V ............................................................................ 2
10 U.S.C. 505(a) ....................................................................... 2
28 U.S.C. 1254(1) ................................................................... 16
28 U.S.C. 2101(e) ................................................................... 16
Sup. Ct. R. 11 ......................................................................... 16
9th Cir. R. 3-3 ......................................................................... 13

 VI
Miscellaneous:

Page

Stephen M. Shapiro et al., Supreme Court Practice
(10th ed. 2013) ..................................................................... 18

 In the Supreme Court of the United States
No. XX-XX
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
ET AL., PETITIONERS
v.
RYAN KARNOSKI, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
BEFORE JUDGMENT TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI
BEFORE JUDGMENT

The Solicitor General, on behalf of President Donald
J. Trump, et al., respectfully petitions for a writ of certiorari before judgment to the United States Court of
Appeals for the Ninth Circuit.
OPINIONS BELOW

The order of the district court granting respondents’
motion for a preliminary injunction (App., infra, 1a-28a)
is not published in the Federal Supplement but is available at 2017 WL 6311305. The order of the district court
striking the government’s motion to dissolve the preliminary injunction (App., infra, 36a-72a) is not published in the Federal Supplement but is available at
2018 WL 1784464.
JURISDICTION

On April 13, 2018, the district court struck the government’s motion to dissolve a preliminary injunction.
(1)

 2
The government filed a notice of appeal on April 30,
2018 (App., infra, 73a-74a). The court of appeals’ jurisdiction rests on 28 U.S.C. 1292(a)(1). The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1) and
28 U.S.C. 2101(e).
CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the Constitution provides
in pertinent part: “Congress shall make no law * * *
abridging the freedom of speech, or of the press.” U.S.
Const. Amend. I.
The Fifth Amendment to the Constitution provides
in pertinent part: “No person shall be * * * deprived
of life, liberty, or property, without due process of law.”
U.S. Const. Amend. V.
STATEMENT
A. The Military’s Policies

1. To assemble a military of “qualified, effective, and
able-bodied persons,” 10 U.S.C. 505(a), the Department
of Defense (Department) has traditionally set demanding standards for military service, App., infra, 116a.
“The vast majority of Americans from ages 17 to 24—
that is, 71%—are ineligible to join the military without
a waiver for mental, medical, or behavioral reasons.”
Id. at 125a.
Given the “unique mental and emotional stresses of
military service,” App., infra, 132a, a history of “[m]ost
mental health conditions and disorders” is “automatically disqualifying,” id. at 151a. In general, the military
has aligned the disorders it has deemed disqualifying
with those listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association (APA). Id. at 132a-133a.

 3
The 1980 edition of the DSM listed, among other disorders, “transsexualism.” Id. at 133a. When the DSM
was updated in 1994, “transsexualism” was subsumed
within, and replaced by, the term “ ‘gender identity disorder.’ ” Ibid. (citation omitted); see C.A. E.R. 416.1
Consistent with the inclusion of “ ‘transsexualism’ ” in
the DSM, the military’s accession standards—the
“standards that govern induction into the Armed
Forces”—had for decades disqualified individuals with
a history of “ ‘transsexualism’  ” from joining the military. App., infra, 126a-127a; see id. at 133a; C.A. E.R.
482. And although the military’s retention standards—
the “standards that govern the retention and separation
of persons already serving in the Armed Forces”—did
not “require” separating “ ‘transsexual[]’ ” servicemembers from service, “ ‘transsexualism’ ” was a “permissible basis” for doing so. App., infra, 127a.
2. In 2013, the APA published a new edition of the
DSM, which replaced the term “gender identity disorder” with “gender dysphoria.” App., infra, 136a. That
change reflected the APA’s view that, when there are
no “accompanying symptoms of distress, transgender
individuals”—individuals who identify with a gender
different from their biological sex—do not have “a diagnosable mental disorder.” C.A. E.R. 416; see App., infra,
204a.
According to the APA, a diagnosis of gender dysphoria should be reserved for individuals who experience a
“marked incongruence between [their] experienced/
expressed gender and assigned gender, of at least
6 months’ duration,” associated with “clinically significant distress or impairment in social, occupational, or
References to the “C.A. E.R.” are to the excerpts of record filed
in the court of appeals in No. 18-35347.
1

 4
other important areas of functioning.” C.A. E.R. 417;
see App., infra, 136a-138a. Treatment for gender dysphoria often involves psychotherapy and, in some cases,
may include gender transition through cross-sex hormone therapy, sex-reassignment surgery, or living and
working in the preferred gender. App., infra, 155a156a; C.A. E.R. 345-346. The APA emphasizes that
“[n]ot all transgender people suffer from gender dysphoria.” App., infra, 152a (citation omitted; brackets in
original). “Conversely, not all persons with gender dysphoria are transgender.” Id. at 152a n.57; see ibid. (giving the example of men who suffer genital wounds in
combat and who “feel that they are no longer men because their bodies do not conform to their concept of
manliness”) (citation omitted).
3. In 2015, then-Secretary of Defense Ashton Carter
ordered the creation of a working group to “formulate
policy options * * * regarding the military service of
transgender Service members,” and instructed the
group to “start with the presumption that transgender
persons can serve openly without adverse impact on
military effectiveness and readiness.” App., infra, 84a.
As part of that review, the Department commissioned the
RAND National Defense Research Institute to conduct a
study. Id. at 139a. The resulting RAND report concluded
that allowing transgender personnel to undergo gender
transition and serve in their preferred gender would increase health-care costs and undermine military readiness and unit cohesion, C.A. E.R. 330-331, but that those
harms would be “minimal” because only a small percentage of the “total force would seek transition-related care,”
id. at 331; see id. at 408.
In June 2016, following the issuance of the RAND
report, Secretary Carter ordered the armed forces to

 5
adopt a new policy on “Military Service of Transgender
Service Members.” App., infra, 87a. In a shift from the
military’s longstanding policy, Secretary Carter declared that “transgender individuals shall be allowed to
serve in the military.” Id. at 88a. But Secretary Carter
recognized the need for “[m]edical standards” to “help
to ensure that those entering service are free of medical
conditions or physical defects that may require excessive time lost from duty.” Id. at 91a. Secretary Carter
thus ordered the military to adopt, by July 1, 2017, new
accession standards that would “disqualify[]” any applicant with a history of gender dysphoria or a history of
medical treatment associated with gender transition
(including a history of sex reassignment or genital reconstruction surgery), unless the applicant met certain
medical criteria. Id. at 92a. An applicant with a history
of medical treatment associated with gender transition,
for example, would be disqualified unless the applicant
provided certification from a licensed medical provider
that the applicant had completed all transition-related
medical treatment and had been stable in the preferred
gender for 18 months. Ibid. If the applicant provided
the requisite certification, the applicant would be permitted to enter the military and serve in the preferred
gender.
Secretary Carter also imposed new retention standards, effective immediately, prohibiting the discharge
of any servicemember on the basis of gender identity.
App., infra, 91a. Under the Carter policy, current servicemembers who received a diagnosis of gender dysphoria from a military medical provider would be permitted to undergo gender transition at government expense and serve in their preferred gender upon completing the transition. C.A. E.R. 219-236; see App., infra, 93a.

 6
Transgender servicemembers without a diagnosis of
gender dysphoria, by contrast, would be required to
continue serving in their biological sex. See App., infra,
128a; C.A. E.R. 221-222.
4. On June 30, 2017—the day before the Carter accession standards were set to take effect—Secretary of
Defense James Mattis determined, “after consulting
with the Service Chiefs and Secretaries,” that it was
“necessary to defer” those standards until January 1,
2018, so that the military could “evaluate more carefully” their potential effect “on readiness and lethality.”
App., infra, 96a. Without “presuppos[ing] the outcome”
of that study, Secretary Mattis explained that it was his
intent to obtain “the views of the military leadership
and of the senior civilian officials who are now arriving
in the Department” and to “continue to treat all Service
members with dignity and respect.” Id. at 97a.
While that study was ongoing, the President stated
on Twitter on July 26, 2017, that “the United States
Government will not accept or allow” “Transgender individuals to serve in any capacity in the U.S. Military.”
App., infra, 98a. The President issued a memorandum
in August 2017 noting the ongoing study and directing
the military to “return to the longstanding policy and
practice on military service by transgender individuals
that was in place prior to June 2016 until such time as a
sufficient basis exists upon which to conclude that terminating that policy and practice would not have * * *
negative effects” on the military. Id. at 100a. The President ordered Secretary Mattis to submit “a plan for implementing” a return to the longstanding pre-Carter
policy by February 2018, while emphasizing that the
Secretary could “advise [him] at any time, in writing, that
a change to th[at] policy is warranted.” Id. at 100a-101a.

 7
5. Secretary Mattis established a panel of experts to
“conduct an independent multi-disciplinary review and
study of relevant data and information pertaining to
transgender Service members.” App., infra, 106a. The
panel consisted of “senior uniformed and civilian Defense Department and U.S. Coast Guard leaders.” Id.
at 205a. After “extensive review and deliberation” over
several months—including input from transgender
servicemembers—the panel “exercised its professional
military judgment” and presented its independent recommendations to the Secretary. Id. at 148a.
In February 2018, Secretary Mattis sent the President a memorandum proposing a new policy consistent
with the panel’s conclusions, along with a lengthy report
explaining the policy. App., infra, 113a-209a. Like the
Carter policy, the Mattis policy holds that “transgender
persons should not be disqualified from service solely
on account of their transgender status.” Id. at 149a.
And like the Carter policy, the Mattis policy draws distinctions on the basis of a medical condition (gender
dysphoria) and related treatment (gender transition).
Id. at 207a-208a. Under the Mattis policy—as under the
Carter policy—transgender individuals without a history of gender dysphoria would be required to serve in
their biological sex, whereas individuals with a history
of gender dysphoria would be presumptively disqualified from service. Ibid. The two policies differ in their
exceptions to that disqualification.
Under the Mattis accession standards, individuals
with a history of gender dysphoria would be permitted
to join the military if they have not undergone gender
transition, are willing and able to serve in their biological sex, and can show 36 months of stability (i.e., the absence of gender dysphoria) before joining. App., infra,

 8
123a. Under the Mattis retention standards, servicemembers who are diagnosed with gender dysphoria after entering service would be permitted to continue
serving if they do not seek to undergo gender transition,
are willing and able to serve in their biological sex, and
are able to meet applicable deployability requirements.
Id. at 123a-124a.
Under both the accession and the retention standards of the Mattis policy, individuals with gender dysphoria who have undergone gender transition or seek to
do so would be ineligible to serve, unless they obtain a
waiver. App., infra, 123a. The Mattis policy, however,
contains a categorical reliance exemption for “transgender Service members who were diagnosed with gender dysphoria and either entered or remained in service
following the announcement of the Carter policy.” Id.
at 200a. Under that exemption, those servicemembers
“who were diagnosed with gender dysphoria by a military medical provider after the effective date of the
Carter policy, but before the effective date of any new
policy, may continue to receive all medically necessary
treatment * * * and to serve in their preferred gender,
even after the new policy commences.” Ibid. The Department has since confirmed that the exemption would
also extend to any servicemember “who was diagnosed
with gender dysphoria prior to the effective date of the
Carter policy and has continued to serve and receive
treatment pursuant to the Carter policy after it took effect.” C.A. E.R. 489.
6. In March 2018, the President issued a new memorandum “revok[ing]” his 2017 memorandum “and any
other directive [he] may have made with respect to military service by transgender individuals.” App., infra,
211a. The 2018 memorandum recognized that the

 9
Mattis policy reflected “the exercise of [Secretary
Mattis’s] independent judgment,” and it permitted the
Secretaries of Defense and Homeland Security “to implement” that new policy. Id. at 210a-211a.
B. Procedural History

1. Shortly after the President issued his 2017 memorandum, respondents—current and aspiring servicemembers as well as various advocacy organizations—
brought suit in the Western District of Washington,
challenging as a violation of equal protection, substantive due process, and the First Amendment what they
described as “the Ban” on military service by transgender individuals reflected in the President’s 2017
tweets and memorandum. C.A. E.R. 118; see id. at 117156. The State of Washington subsequently intervened
in the suit as a plaintiff. Id. at 55-62, 108-116.
Similar suits were filed in the Central District of California and in the District of Columbia. See Stockman
v. Trump, No. 17-cv-1799 (C.D. Cal. filed Sept. 5, 2017);
Doe v. Trump, No. 17-cv-1597 (D.D.C. filed Aug. 9,
2017). A summary of the proceedings in the suit filed in
the Western District of Washington (Karnoski) follows.
A summary of the proceedings in the other suits can be
found in the government’s petitions for writs of certiorari before judgment in those cases, filed simultaneously with this petition.2

A similar suit was also filed in the District of Maryland. See
Stone v. Trump, No. 17-cv-2459 (D. Md. filed Aug. 28, 2017). Like
the district courts in the other suits, the district court in Stone issued a nationwide preliminary injunction requiring the military to
maintain and implement the Carter retention and accession standards. See Stone v. Trump, 280 F. Supp. 3d 747 (D. Md. 2017).
Unlike the other district courts, however, the district court in Stone
2

 10
2. In December 2017, the district court issued a nationwide preliminary injunction, enjoining the military
“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” on Twitter. App., infra, 27a.
The district court construed the President’s 2017
tweets and memorandum as “unilaterally proclaim[ing]
a prohibition on transgender service members.” App.,
infra, 16a. The court determined that respondents
were likely to succeed in challenging that prohibition on
equal-protection, substantive-due-process, and First
Amendment grounds. Id. at 18a. With respect to respondents’ equal-protection claim, the court reasoned
that the policy set forth in the President’s 2017 memorandum “distinguishe[d] on the basis of transgender
status, a quasi-suspect classification, and [wa]s therefore
subject to intermediate scrutiny.” Id. at 19a. The court
determined that the policy did not survive such scrutiny
because its justifications were “contradicted by the studies, conclusions, and judgment of the military” in adopting
the Carter policy. Id. at 20a (citation and emphasis omitted). With respect to respondent’s substantive-dueprocess claim, the court determined that the President’s policy “directly interfere[d]” with respondents’
“fundamental right” to “define and express their gender identity” by “depriving them of employment and career opportunities.” Id. at 23a. And with respect to re-

has yet to rule on the government’s motion to dissolve that injunction, which the government filed in March 2018, after the President
revoked his 2017 memorandum and permitted the military to implement the Mattis policy. See Gov’t Mot. to Dissolve the Prelim. Inj.,
Stone, supra (No. 17-cv-2459) (Mar. 23, 2018).

 11
spondents’ First Amendment claim, the court determined that the President’s policy was an impermissible
“content-based restriction” that “penalize[d] transgender service members * * * for disclosing their gender identity.” Id. at 24a.
The district court subsequently clarified that maintaining the “status quo” under its injunction required
implementing the Carter accession standards by January 1, 2018. App., infra, 31a. The government filed an
appeal but dismissed it after the D.C. Circuit and the
Fourth Circuit denied the government’s requests for
partial stays of similar nationwide injunctions in Doe
and Stone. See Doe 1 v. Trump, No. 17-5267, 2017 WL
6553389 (D.C. Cir. Dec. 22, 2017) (per curiam); Stone v.
Trump, No. 17-2398, 2017 WL 9732004 (4th Cir. Dec. 21,
2017); 17-36009 C.A. Doc. 21, at 1 (Dec. 29, 2017). Absent a stay of those injunctions, the military would be
forced to implement the Carter accession standards in
any event. The government also expected that Secretary
Mattis would soon be proposing a final policy that would
render moot any appeal of the December 2017 injunction.
3. The parties filed cross-motions for summary
judgment in the district court. See D. Ct. Doc. 129 (Jan.
25, 2018); D. Ct. Doc. 150 (Jan. 25, 2018); D. Ct. Doc. 194
(Feb. 28, 2018). Then, in March 2018, the government
informed the court that the President had issued the
new memorandum, which revoked his 2017 memorandum (and any similar directive) and allowed the military
to adopt Secretary Mattis’s proposed policy. D. Ct.
Doc. 223, at 3 (Mar. 29, 2018); see D. Ct. Doc. 213 (Mar.
23, 2018). In light of that new policy, the government
moved to dissolve the December 2017 injunction. D. Ct.
Doc. 223, at 1-27.

 12
In April 2018, the district court ruled on the pending
motions. App., infra, 36a-72a. The court struck the
government’s motion to dissolve, id. at 72a, and extended the injunction to enjoin the Mattis policy.3 The
court characterized the Mattis policy as simply “a plan
to implement” the “ban on military service by openly
transgender people” that the President had supposedly
announced in his 2017 tweets and memorandum. Id. at
37a; see id. at 38a n.1, 49a-50a. The court upheld respondents’ standing to challenge that “Ban.” Id. at 52a59a. And despite having previously found “transgender
people” to be “a quasi-suspect class,” the court concluded that they are “a suspect class,” id. at 59a, such
that “[t]he Ban * * * must satisfy strict scrutiny if it is
to survive,” id. at 64a.
The district court declined, however, to grant in full respondents’ motions for summary judgment. App., infra,
36a-37a. The court identified “an unresolved question
of fact” regarding whether the “justifications for the
Ban” found in the Mattis policy were entitled to “deference.” Id. at 66a. The court stated that it could not determine, “[o]n the present record,” “whether the [Department’s] deliberative process—including the timing
and thoroughness of its study and the soundness of the
medical and other evidence it relied upon—is of the type
to which Courts typically should defer.” Id. at 66a-67a.
The court also reasoned that “facts related to Defendants’ deliberative process” would be necessary to determine “[w]hether Defendants have satisfied their burden
The district court granted the government’s cross-motion for
summary judgment “with respect to injunctive relief against President Trump,” but stated that “[t]he preliminary injunction previously
entered otherwise remains in full force and effect.” App., infra, 71a;
see id. at 37a (“[T]he preliminary injunction will remain in effect.”).
3

 13
of showing that the Ban is constitutionally adequate
(i.e., that it was sincerely motivated by compelling state
interests, rather than by prejudice or stereotype).” Id.
at 68a. The court therefore directed the parties “to proceed with discovery and prepare for trial on the issues of
whether, and to what extent, deference is owed to the Ban
and whether the Ban violates equal protection, substantive due process, and the First Amendment.” Id. at 72a.
4. The government promptly appealed and sought a
stay of the preliminary injunction from the district
court. App., infra, 73a-74a; D. Ct. Doc. 238 (Apr. 30,
2018). After the court rejected the government’s request for an expedited ruling, D. Ct. Doc. 240, at 1 (May
2, 2018); see D. Ct. Doc. 238, at 6, the government filed
a stay motion in the court of appeals, 18-35347 C.A. Doc.
3-1 (May 4, 2018).
For six weeks, neither court acted on the government’s request for a stay. Then, in June 2018, more
than two months after having extended the injunction,
the district court denied the government’s stay motion.
App., infra, 75a-81a. After another month passed and
the parties finished briefing the merits of the appeal on
an expedited basis, see 9th Cir. R. 3-3, the court of appeals likewise denied a stay, App., infra, 82a-83a, and
notified the parties that it had scheduled oral argument
in the case for October 2018, 18-35347 C.A. Doc. 92 (July
20, 2018).
The following business day, the government asked
the court of appeals to expedite the date of oral argument. 18-35347 C.A. Doc. 93 (July 23, 2018). The government explained that “[e]xpedition is all the more
necessary now that [the court] has denied the government’s motion for a stay pending appeal.” Id. at 4. The
government urged the court to resolve the appeal as

 14
soon as possible because the injunction requires the military to maintain a policy that, in its own professional
judgment, risks undermining readiness, disrupting unit
cohesion, and weakening military effectiveness and lethality. Ibid. The government also emphasized that,
absent expedition, it would “be difficult for the government, if it loses the appeal, to seek and obtain review
during the Supreme Court’s 2018 Term.” Ibid.
The court of appeals denied the government’s request for expedition, 18-35347 C.A. Doc. 102 (Aug. 6,
2018), and heard oral argument on October 10, 2018,
18-35347 C.A. Docket entry No. 119 (Oct. 10, 2018).4
The court has not yet issued a decision as of the printing
of this petition.5
On the same day that it heard argument in the government’s
preliminary-injunction appeal, the court of appeals also heard argument on the government’s petition for a writ of mandamus seeking
vacatur of an order of the district court requiring the Executive
Branch to produce a detailed privilege log of presidential communications and disclose many thousands of documents withheld under
the deliberative-process privilege. 18-72159 C.A. Docket entry
No. 43 (Oct. 10, 2018). After the government filed an application in
this Court seeking a stay of the district court’s order pending disposition of the government’s mandamus petition, see Trump v. United
States Dist. Ct. for the W. Dist. of Wash., No. 18A276 (Sept. 14,
2018), the court of appeals granted a stay, 18-72159 C.A. Doc. 36
(Sept. 17, 2018), and the government withdrew its stay application
in this Court. The court of appeals has not yet ruled on the government’s mandamus petition.
5
On November 7, 2018, the government informed the court of appeals that, “in order to preserve th[is] Court’s ability to hear and
decide the case this Term,” it intended to file a petition for a writ of
certiorari before judgment on November 23 if the court of appeals
had not issued its judgment by then. 18-35347 C.A. Doc. 124, at 1-2.
As explained more fully in a letter filed simultaneously with this petition, the government’s filing of the petition on November 23 would
4

 15
REASONS FOR GRANTING THE PETITION

This case and related cases in California and the District of Columbia involve constitutional challenges to a
policy that Secretary Mattis announced earlier this year
after an extensive review of military service by transgender individuals. In arriving at that new policy, Secretary Mattis and a panel of senior military leaders and
other experts determined that the prior policy, adopted
by Secretary Carter, posed too great a risk to military
effectiveness and lethality. As a result of nationwide
preliminary injunctions issued by various district courts,
however, the military has been forced to maintain that
prior policy for nearly a year. And absent this Court’s
prompt intervention, it is unlikely that the military will be
able to implement its new policy any time soon.
Accordingly, the government is filing this petition
and two other petitions for writs of certiorari before
judgment to the Ninth and D.C. Circuits, which have
before them a total of three injunctions enjoining the
military from implementing the Mattis policy nationwide. The decisions imposing those injunctions are
wrong, and they warrant this Court’s immediate review.
The government presents each of the petitions to ensure that the Court has an adequate vehicle in which to
resolve the question presented in a timely and definitive
manner. The government respectfully submits that the
Court should grant the petitions for writs of certiorari

allow the petition to be distributed on December 26, 2018, for consideration at the Court’s January 11, 2019 conference, without a motion for expedition.

 16
before judgment, consolidate the cases for decision, and
consider this important dispute this Term.6
I. THE QUESTION PRESENTED WARRANTS THIS COURT’S
IMMEDIATE REVIEW

Congress has vested this Court with jurisdiction to
review “[c]ases in the courts of appeals * * * [b]y writ
of certiorari * * * before or after rendition of judgment
or decree.” 28 U.S.C. 1254(1) (emphasis added). “An
application * * * for a writ of certiorari to review a case
before judgment has been rendered in the court of appeals may be made at any time before judgment.”
28 U.S.C. 2101(e). This Court will grant certiorari before judgment “only upon a showing that the case is of
such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” Sup. Ct. R. 11.
This case satisfies that standard. It involves an issue
of imperative public importance: the authority of the
U.S. military to determine who may serve in the Nation’s armed forces. After an extensive process of consultation and review involving senior military officials
The government has previously sought stays in the lower courts
of the preliminary injunction in this case, and the government intends to do the same in Stockman and Doe. In the event that the
lower courts do not stay the injunctions, the government intends to
file applications in this Court, seeking, as an alternative to certiorari
before judgment, stays of the injunctions or, at a minimum, stays of
the nationwide scope of the injunctions. Should the Court decline to
grant certiorari before judgment, such stays would at least allow the
military to implement the Mattis policy in whole or in part while litigation proceeds through the Court’s 2019 Term. Either way,
whether through certiorari before judgment or stays of the injunctions, what is of paramount importance is permitting the Secretary
of Defense to implement the policy that, in his judgment after consultation with experts, best serves the military’s interests.
6

 17
and other experts, the Secretary of Defense determined
that individuals with a history of a medical condition
called gender dysphoria should be presumptively disqualified from military service, particularly if they have
undergone the treatment of gender transition or seek to
do so. See pp. 7-8, supra. The district court in this case
entered a nationwide preliminary injunction nullifying
that exercise of professional military judgment and
blocking the implementation of a policy that the Secretary has deemed necessary to “place the Department of
Defense in the strongest position to protect the American people, to fight and win America’s wars, and to ensure the survival and success of our Service members
around the world.” App., infra, 208a; see Goldman v.
Weinberger, 475 U.S. 503, 507 (1986) (“[C]ourts must
give great deference to the professional judgment of
military authorities concerning the relative importance
of a particular military interest.”).
Although the government has appealed the district
court’s injunction, an immediate grant of certiorari is
warranted to ensure that the injunction does not remain
in place any longer than is necessary. Even if the government were immediately to seek certiorari from an
adverse decision of the court of appeals, this Court
would not be able to review that decision in the ordinary
course until next Term at the earliest. And even if the
government were to prevail in the Ninth Circuit—
where two appeals are pending—the government would
still need to proceed with its appeal before the D.C. Circuit. And even then, the government would still be subject to a fourth nationwide preliminary injunction, issued by the district court in Maryland. See Stone v.
Trump, 280 F. Supp. 3d 747 (D. Md. 2017). Although
the government moved eight months ago to dissolve

 18
that injunction in light of the new Mattis policy, the district court in Maryland has not ruled on the government’s pending motion. See p. 9 n.2, supra.
Absent an immediate grant of certiorari, there is
thus little chance of a prompt resolution of the validity
of Secretary Mattis’s proposed policy. And so long as
this or any other injunction remains in place, the military will be forced nationwide to maintain the Carter
policy—a policy that the military has concluded poses a
threat to “readiness, good order and discipline, sound
leadership, and unit cohesion,” which “are essential to
military effectiveness and lethality.” App., infra, 197a;
see id. at 206a (stating that the Carter policy poses
“substantial risks” and threatens to “undermine readiness, disrupt unit cohesion, and impose an unreasonable
burden on the military that is not conducive to military
effectiveness and lethality”); id. at 202a (explaining that
the “risks” associated with maintaining the Carter policy should not be incurred “given the Department’s
grave responsibility to fight and win the Nation’s wars
in a manner that maximizes the effectiveness, lethality,
and survivability” of servicemembers).
This Court has previously granted certiorari before
judgment to promptly resolve important and timesensitive disputes. See, e.g., Dames & Moore v. Regan,
453 U.S. 654, 668 (1981); United States v. Nixon,
418 U.S. 683, 686-687 (1974); Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 584 (1952); cf. Stephen M.
Shapiro et al., Supreme Court Practice § 4.20, at 287288 (10th ed. 2013) (collecting cases where “[t]he public
interest in a speedy determination” warranted certiorari before judgment). The Court should follow the
same course here and grant this petition.

 19
II. THE DECISION BELOW IS WRONG

Review is also warranted because the district court
erred in enjoining implementation of the Mattis policy
nationwide. Respondents’ constitutional challenges to
the Mattis policy lack merit, and in any event, the injunction is vastly overbroad.
A. The Mattis Policy Is Consistent With Equal Protection

1. For decades, transgender status alone was a basis
for disqualification from military service. See pp. 2-3,
supra. The Mattis policy departs from that practice.
Under the Mattis policy, individuals may “not be disqualified from service solely on account of their transgender status.” App., infra, 149a.
Like Secretary Carter before him, however, Secretary Mattis recognized the need for “[m]edical standards” to “help to ensure that those entering service are
free of medical conditions or physical defects that may
require excessive time lost from duty.” App., infra, 91a.
Thus, under the Mattis policy, as under the Carter policy
before it, a history of gender dysphoria would be presumptively disqualifying. Id. at 92a, 121a-124a. Because
the Mattis policy turns on a medical condition (gender
dysphoria) and related treatment (gender transition)—
not any suspect or quasi-suspect classification—the policy is subject only to rational-basis review. See, e.g.,
Board of Trs. of the Univ. of Ala. v. Garrett, 531 U.S.
356, 365-368 (2001).
A more searching form of review would be particularly inappropriate given the military context in which
the policy arises. This Court has long accorded “a
healthy deference to legislative and executive judgments in the area of military affairs.” Rostker v. Goldberg, 453 U.S. 57, 66 (1981). That deference reflects the
recognition “[n]ot only” that “courts [are] ‘ill-equipped

 20
to determine the impact upon discipline that any particular intrusion upon military authority might have,’  ” but
also that “military authorities have been charged by the
Executive and Legislative Branches with carrying out
our Nation’s military policy.” Goldman, 475 U.S. at
507-508 (citation omitted); see Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 24 (2008) (explaining that
“complex, subtle, and professional decisions as to the
composition * * * of a military force” are “essentially
professional military judgments”) (citation omitted).
The Mattis policy would thus warrant deferential review even if an analogous policy in the civilian context
would call for closer scrutiny. See Rostker, 453 U.S. at
67 (“[T]he tests and limitations to be applied may differ
because of the military context.”); cf. Goldman, 475 U.S.
at 507 (explaining that judicial “review of military regulations challenged on First Amendment grounds is far
more deferential than constitutional review of similar
laws or regulations designed for civilian society”).
2. The Mattis policy satisfies the deferential standard that applies here. As explained, the Mattis policy
would disqualify individuals with a history of gender
dysphoria, unless they meet certain criteria. App., infra,
121a-124a. Gender dysphoria is a medical condition recognized by the APA and defined by “clinically significant distress or impairment in social, occupational, or
other important areas of functioning.” C.A. E.R. 417.
In presumptively disqualifying individuals with a history of this condition from service, the Mattis policy
serves the same compelling interest as the Carter policy:
ensuring that those serving in the armed forces are “free
of medical conditions or physical defects that may require
excessive time lost from duty.” App., infra, 91a, 130a.

 21
It is true that the Mattis and the Carter policies differ in the circumstances under which they would permit
individuals with a history of gender dysphoria to serve.
The Carter policy, for example, allows certain individuals who have undergone gender transition to enter the
military and serve in their preferred gender; it likewise
allows current servicemembers with gender dysphoria
to serve in their preferred gender upon transitioning.
App., infra, 92-93a.7 The Mattis policy, by contrast,
would disqualify from service any individual who has
undergone gender transition or seeks to do so, unless
that individual obtains a waiver or falls within the reliance exemption. Id. at 122a-124a.
Those differences, however, are of no constitutional
significance. That is because the Mattis policy reflects
the military’s reasoned and considered judgment that
“making accommodations for gender transition” would
“not [be] conducive to, and would likely undermine, the
inputs—readiness, good order and discipline, sound
leadership, and unit cohesion—that are essential to military effectiveness and lethality.” App., infra, 197a; see
id. at 122a. For three reasons, the Department concluded that individuals with a history of gender dysphoria who seek or have undergone “gender transition generally should not be eligible for accession or retention
in the Armed Forces absent a waiver.” Id. at 197a-198a.
First, the Department found that accommodating
gender transition as a treatment for gender dysphoria
would “present a significant challenge for unit readiness.” App., infra, 185a. The Department noted the
Under the Carter policy, transgender servicemembers without
a diagnosis of gender dysphoria would be required to serve in their
biological sex; they would not be permitted to serve in their preferred gender. See App., infra, 128a; C.A. E.R. 221-222.
7

 22
existence of “considerable scientific uncertainty” concerning whether transition-related treatment, such as
cross-sex hormone therapy and sex-reassignment surgery, “fully remedy * * * the mental health problems
associated with gender dysphoria.” Id. at 178a; see id.
at 155a-166a. The Department reasoned, however, that
even if such treatment could fully remedy the “serious
problems associated with gender dysphoria,” most servicemembers undergoing such treatment could be rendered “non-deployable for a potentially significant
amount of time.” Id. at 184a-185a. The Department
noted, for example, that some servicemembers would
have to leave their “theater of operations” to be able to
undergo transition-related therapy or surgery. Id. at
179a.
Second, the Department determined that accommodating gender transition as a treatment for gender dysphoria would be incompatible with sex-based standards
governing various aspects of military life. App., infra,
185a. The military maintains separate berthing, bathroom, and shower facilities for each sex. Ibid. The Department was concerned that allowing individuals who
retained the anatomy of their biological sex to use the
facilities of their preferred gender “would invade the
expectations of privacy” of the other servicemembers
sharing those facilities. Id. at 188a; see United States
v. Virginia, 518 U.S. 515, 550 n.19 (1996) (recognizing
that it is “necessary to afford members of each sex privacy from the other sex in living arrangements”). The
military also maintains different sets of physicalfitness, body-fat, uniform, and grooming standards for
biological males and biological females. App., infra,
185a. The Department was concerned, among other
things, that allowing a “biological male” to “compete

 23
against females in gender-specific physical training”
would pose a serious safety risk and generate perceptions of unfairness, id. at 174a-175a; see id. at 171a, thus
undermining “unit cohesion and good order and discipline,” id. at 185a; see Virginia, 518 U.S. at 550 n.19
(acknowledging that it is “necessary” to “adjust aspects
of the physical training programs” for servicemembers
to address biological differences between the sexes).
Third, the Department determined that accommodating gender transition as a treatment for gender dysphoria would be “disproportionately costly on a per capita basis.” App., infra, 196a. That determination rested
on the Department’s own experience under the Carter
policy. Ibid. The Department explained that, since implementation of the Carter policy, medical costs for servicemembers with gender dysphoria had increased
nearly 300% compared to servicemembers without gender dysphoria. Ibid. Several commanders had also reported that providing servicemembers in their units
with transition-related treatment required the use of
“operations and maintenance funds to pay for * * * extensive travel throughout the United States to obtain
specialized medical care.” Id. at 197a. Particularly “in
light of the absence of solid scientific support for the efficacy of [transition-related] treatment,” the Department found the costs of accommodating gender transition disproportionate. Id. at 196a.
In concluding that individuals with a history of gender dysphoria who seek or have undergone gender transition generally should not be eligible for accession or
retention in the military, the Department specifically
considered—and rejected—the Carter policy’s contrary
approach to gender transition. App., infra, 120a, 168a-

 24
169a, 173a, 202a-203a. That “studied choice of one alternative in preference to another,” Rostker, 453 U.S.
at 72, in light of “military operations and needs,” id. at
68, is precisely the type of judgment deserving of deference, ibid. The Department’s decision to replace the
Carter policy with the Mattis policy was thus a decision
well within constitutional bounds. Given the close fit between the military’s reasons for not accommodating
gender transition and the military’s compelling interests in readiness, unit cohesion, good order and discipline, and effectiveness, the Mattis policy would satisfy
constitutional review under even a heightened level of
scrutiny.
3. In enjoining the military from implementing the
Mattis policy, the district court here failed to consider
that policy on its own terms. Instead, the court characterized the Mattis policy as simply “a plan to implement” the “ban on military service by openly transgender people” that the President supposedly announced
in his 2017 tweets and memorandum. App., infra, 37a.
But the Mattis policy would not ban military service by
openly transgender people. Quite the opposite, the
Mattis policy reflects the Department’s conclusion that
“transgender persons should not be disqualified from
service solely on account of their transgender status.”
Id. at 149a (emphasis added). That is why the President
had to “revoke” his 2017 memorandum and “any other
directive [he] may have made with respect to military
service by transgender individuals” to allow the military to implement the Mattis policy. Id. at 211a; see id.
at 208a-209a. That policy, moreover, reflects the exercise of Secretary Mattis’s “independent judgment,” id.
at 210a, following an “independent multi-disciplinary
review” by a panel of experts, id. at 106a. The district

 25
court erred in failing to consider the Mattis policy on its
own terms.
B. The Mattis Policy Does Not Violate Respondents’
Due Process Or First Amendment Rights

Respondents’ substantive-due-process and First
Amendment challenges likewise lack merit. The Mattis
policy satisfies the deferential review that applies to
such challenges. See, e.g., Goldman, 475 U.S. at 507;
Brown v. Glines, 444 U.S. 348, 353-359 (1980).
With respect to their substantive-due-process claim,
respondents cannot point to any fundamental right that
the Mattis policy implicates. There is no fundamental
right to serve in the military, much less to do so in a
particular manner. As for their First Amendment
claim, respondents cannot point to any restriction on
speech. Like the Carter policy before it, the Mattis policy turns not on speech, but on a medical condition and
related treatment. Taken to their logical conclusion, respondents’ claims would mean that the Carter policy itself violates the substantive-due-process and First
Amendment rights of the transgender individuals it
precludes from either serving in their preferred gender
or serving at all, see pp. 5-6, supra—and yet the district
court in this case, at respondents’ request, ordered the
military to maintain that policy.
C. The Nationwide Injunction Against The Mattis Policy
Is Vastly Overbroad

The district court further erred in enjoining the implementation of the Mattis policy on a nationwide basis.
See Gill v. Whitford, 138 S. Ct. 1916, 1933 (2018) (“The
Court’s constitutionally prescribed role is to vindicate
the individual rights of the people appearing before
it.”); Trump v. Hawaii, 138 S. Ct. 2392, 2429 (2018)

 26
(Thomas, J., concurring) (“[U]niversal injunctions are
legally and historically dubious.”).
Both Article III and equitable principles require that
injunctive relief be limited to redressing a plaintiff  ’s
own injuries stemming from a violation of his own
rights. “[S]tanding is not dispensed in gross,” and “a
plaintiff must demonstrate standing * * * for each form
of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (citations omitted). The remedy sought thus “must of course be limited to the inadequacy that produced the injury in fact
that the plaintiff has established.” Whitford, 138 S. Ct.
at 1931 (quoting Lewis v. Casey, 518 U.S. 343, 357
(1996)); see id. at 1934 (“A plaintiff  ’s remedy must be
tailored to redress the plaintiff  ’s particular injury.”).
Principles of equity independently require that injunctions be no broader than “necessary to provide complete
relief to the plaintiffs.” Madsen v. Women’s Health
Ctr., Inc., 512 U.S. 753, 765 (1994) (citation omitted); see
Hawaii, 138 S. Ct. at 2426 (Thomas, J., concurring) (explaining that universal injunctions “do not seem to comply” with “longstanding principles of equity”). That is
especially so in the context of military affairs and national security.
This Court has previously stayed a nationwide injunction against a military policy to the extent it swept
beyond the parties to the case. United States Dep’t of
Def. v. Meinhold, 510 U.S. 939 (1993). Indeed, this case
is materially indistinguishable from Meinhold, which
involved a facial constitutional challenge by a discharged
Navy servicemember to the Department’s “then-existing
policy regarding homosexuals.” Meinhold v. United
States Dep’t of Def., 34 F.3d 1469, 1473 (9th Cir. 1994).
After the district court enjoined the Department from

 27
“taking any actions against gay or lesbian servicemembers based on their sexual orientation” nationwide, this
Court stayed that order “to the extent it conferred relief on persons other than Meinhold.” Ibid.; see Meinhold, 510 U.S. at 939. The Court’s grant of a stay in
Meinhold reflects the principle that injunctive relief
should not extend beyond the parties to the case.
III. THE COURT SHOULD GRANT CERTIORARI BEFORE
JUDGMENT IN ALL THREE CASES

To ensure an adequate vehicle for the timely and definitive resolution of this overall dispute, the Court
should grant the government’s petitions in Karnoski,
Doe, and Stockman, and consolidate the cases for further review.
Karnoski is before the Ninth Circuit. In issuing the
injunction in Karnoski, the district court determined
that respondents are likely to succeed on their equalprotection, substantive-due-process, and First Amendment claims. A grant of certiorari before judgment in
Karnoski would therefore bring before this Court all
the relevant claims. Accordingly, the petition in Karnoski should be granted.
Doe is before the D.C. Circuit. In issuing the injunction in Doe, the district court addressed only respondents’ equal-protection claim. But to ensure that no
developments in the Ninth Circuit between the filing
of these petitions and the Court’s resolution of these
cases undermine the Court’s ability to address the
equal-protection challenge to the Mattis policy, the government respectfully submits that the Court should also
issue a writ of certiorari to the D.C. Circuit.
Stockman, like Karnoski, is before the Ninth Circuit. In issuing the injunction in Stockman, the district
court addressed only respondents’ equal-protection

 28
claim. Because an order vacating the injunctions issued
in the other cases would have no practical consequence
unless the injunction in Stockman were similarly vacated, the Court should at least hold the petition in
Stockman pending disposition of the other two petitions
and any further proceedings in this Court. 8 But to ensure that no intervening developments in the lower
courts—for example, vacatur of the preliminary injunctions in Karnoski and Doe—deprive this Court of an adequate vehicle, the government respectfully submits
that the Court should also grant certiorari in Stockman.

If this Court were to vacate the injunctions in these cases in
whole or in part, that decision would be binding precedent requiring
the district court to similarly vacate the injunction in Stone.
8

 29
CONCLUSION

The petition for a writ of certiorari before judgment
should be granted.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
Assistant Attorney
General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
FREDERICK LIU
Assistant to the Solicitor
General
BRINTON LUCAS
Counsel to the Assistant
Attorney General
MARK R. FREEMAN
MARLEIGH D. DOVER
TARA S. MORRISSEY
Attorneys

NOVEMBER 2018

 APPENDIX A
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

Case No. C17-1297-MJP
RYAN KARNOSKI, ET AL., PLAINTIFFS
v.
DONALD J. TRUMP, ET AL., DEFENDANTS
Filed: Dec. 11, 2017
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS
ORDER GRANTING PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION
INTRODUCTION

THIS MATTER comes before the Court on Plaintiffs
Ryan Karnoski, et al.’s Motion for Preliminary Injunction
(Dkt. No. 32) and Defendants Donald J. Trump, et al.’s
Motion to Dismiss (Dkt. No. 69). Plaintiffs challenge
the constitutionality of Defendant President Donald J.
Trump’s Presidential Memorandum excluding transgender individuals from the military. Defendants respond
that Plaintiffs lack standing, that their claims are neither
properly plead nor ripe for review, and that they are not
entitled to injunctive relief. Having reviewed the Motions (Dkt. Nos. 32, 69), the Responses (Dkt. Nos. 69,
(1a)

 2a
84), the Replies (Dkt. Nos. 84, 90), and all related papers,
and having considered the arguments made in proceedings before the Court, the Court GRANTS in part and
DENIES in part Defendants’ Motion to Dismiss and
GRANTS Plaintiffs’ Motion for Preliminary Injunction.
ORDER SUMMARY

On July 26, 2017, President Donald J. Trump announced on Twitter that “the United States Government will not accept or allow transgender individuals to
serve in any capacity in the U.S. Military.” A Presidential Memorandum followed, directing the Secretaries of Defense and Homeland Security to “return” to
the military’s policy authorizing the discharge of openly
transgender service members (the “Retention Directive”); to prohibit the accession (bringing into service)
of openly transgender individuals (the “Accession Directive”); and to prohibit the funding of certain surgical
procedures for transgender service members (the “Medical Care Directive”). Plaintiffs filed this action challenging the constitutionality of the policy prohibiting military service by openly transgender individuals. Plaintiffs contend the policy violates their equal protection
and due process rights and their rights under the First
Amendment. Plaintiffs include transgender individuals
currently serving in the military and seeking to join the
military; the Human Rights Campaign, the Gender Justice League, and the American Military Partner Association; and the State of Washington. Plaintiffs have
moved for a preliminary injunction to prevent implementation of the policy set forth in the Presidential
Memorandum, and Defendants have moved to dismiss.

 3a
The Court finds that Plaintiffs have standing to
bring this action, and that their claims for violation of
equal protection, substantive due process, and the
First Amendment are properly plead and ripe for resolution. The Court finds that Plaintiffs’ claim for violation of procedural due process is defective. The Court
finds that the policy prohibiting openly transgender individuals from serving in the military is likely unconstitutional. Accordingly, the Court GRANTS in part
and DENIES in part Defendants’ Motion to Dismiss and
GRANTS Plaintiffs’ Motion for Preliminary Injunction.
BACKGROUND
I.

Presidential Memorandum and Interim Guidance

On July 26, 2017, President Donald J. Trump announced on Twitter that the United States government
will no longer allow transgender individuals to serve in
any capacity in the military. (Dkt. No. 34, Ex. 6.)
President Trump’s announcement read as follows:

  

 

 

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the United States Government will not acceptor allow 

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4a

5a
Thereafter, President Trump issued a memorandum
(the “Presidential Memorandum”) directing the Secretaries of Defense and Homeland Security to “return” to
the military’s policy authorizing the discharge of openly transgender service members (the “Retention Directive”); to prohibit the accession (bringing into service) of openly transgender individuals (the “Accession
Directive”); and to prohibit the funding of certain surgical procedures for transgender service members (the
“Medical Care Directive”). (Id. at §§ 1-3.) The Accession Directive takes effect on January 1, 2018; the
Retention and Medical Care Directives take effect on
March 23, 2018. (Id. at § 3.)
On September 14, 2017, Secretary of Defense James
N. Mattis issued a memorandum providing interim guidance to the military (the “Interim Guidance”). (Dkt. No.
69, Ex. 1.) The Interim Guidance identified the intent of
the Department of Defense (“DoD”) to “carry out the
President’s policy and directives” and to identify “a plan
to implement the policy and directives in the Presidential
Memorandum.” (Id. at 2.) The Interim Guidance explained that transgender individuals would be prohibited
from accession effective immediately. (Id. at 3.)
II. Policy on Transgender Service Members Prior to
July 26, 2017

Prior to President Trump’s announcement, the military concluded that transgender individuals should be
permitted to serve openly and was in the process of implementing a policy to this effect (the “June 2016 Policy”). (Dkt. Nos. 32 at 9-10; 46 at ¶¶ 8-27; 48 at ¶¶ 8-36,
Ex. C.) The June 2016 Policy was preceded by extensive research, including an independent study to evaluate the implications of military service by transgender

 6a
individuals. (Dkt. Nos. 30 at ¶¶ 159-162; 32 at 9-10; 46 at
¶ 11.) This study concluded that allowing transgender
individuals to serve would not negatively impact military effectiveness, readiness, or unit cohesion, and that
the costs of providing transgender service members
with transition-related healthcare would be “exceedingly small” compared with DoD’s overall healthcare
expenditures. (Dkt. No. 32 at 30; 46 at ¶¶ 15-20.)
After consulting with medical experts, personnel experts, readiness experts, commanders whose units included transgender service members, and others, the
working group concluded that transgender individuals
should be allowed to serve openly. (Dkt. Nos. 30 at
¶ 161; 46 at ¶ 10.) The Secretary of Defense issued a
directive-type memorandum on June 30, 2016 affirming
that “service in the United States military should be
open to all who can meet the rigorous standards for military service and readiness,” including transgender individuals. (Dkt. No. 48, Ex. C.) The memorandum established procedures for accession, retention, in-service
transition, and medical coverage, and 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.” (Id.) Relying upon
the June 2016 Policy, transgender service members
disclosed their transgender status to the military and
were serving openly at the time of President Trump’s
announcement. (See Dkt. Nos. 30 at ¶¶ 101-102, 112114; 48 at ¶ 37.)

 7a
III. Plaintiffs Challenge to the Presidential Memorandum

Plaintiffs challenge the constitutionality of the policy
prohibiting military service by openly transgender individuals and seek declaratory and injunctive relief.1 (Dkt.
No. 30 at 39.) Plaintiffs contend the policy violates their
equal protection and due process rights, and their rights
under the First Amendment. (Id. at ¶¶ 214-238.)
Plaintiffs include nine individuals (the “Individual
Plaintiffs”), three organizations (the “Organizational
Plaintiffs”), and Washington State. (See id. at ¶¶ 7-18;
Dkt. No. 101.) Plaintiffs Ryan Karnoski, D.L., and
Connor Callahan seek to pursue a military career, and
contend that the policy set forth in the Presidential
Memorandum forecloses this opportunity. (Dkt. No. 30
at ¶¶ 38-49, 64-73, 130-139.) Plaintiffs 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 ¶¶ 50-63, 74-120.) Plaintiff Jane
Doe currently serves in the military, but does not serve
openly. (Id. at ¶¶ 121-129.) The Human Rights Campaign (“HRC”), the Gender Justice League (“GJL”), and
Plaintiffs’ suit is one of four lawsuits filed in response to President Trump’s policy prohibiting transgender individuals from serving openly. See Doe 1 v. Trump, No. 17-1597 (CKK) (D.D.C. filed
Aug. 9, 2017); Stone v. Trump, No. MJG-17-2459 (D. Md. filed Aug. 8,
2017); Stockman v. Trump, No. 17-cv-1799-JGB-KK (C.D. Cal. filed
Sept. 5, 2017). The District Courts for the Districts of Columbia
and Maryland have issued preliminary injunctions suspending enforcement of the policy. See Doe 1, 2017 WL 4873042 (D.D.C. Oct.
30, 2017); Stone, 2017 WL 5589122 (D. Md. Nov. 21, 2017).
1

 8a
the American Military Partner Association (“AMPA”)
join as Organizational Plaintiffs. (Id. at ¶¶ 140-145.)
After the Individual and Organization Plaintiffs filed
this action, Washington State moved to intervene to
protect its sovereign and quasi-sovereign interests,
which it alleged were harmed by the policy set forth in
the Presidential Memorandum. (Dkt. No. 55; see also
Dkt. No. 97.) On November 27, 2017, the Court granted
Washington State’s motion. (Dkt. No. 101.) Washington State now joins in Plaintiffs’ Motion for Preliminary Injunction based upon its interests in protecting
“the health, and physical and economic well-being of its
residents” and “securing residents from the harmful
effects of discrimination.” (Id. at 4.) Defendants include President Donald J. Trump, Secretary James N.
Mattis, the United States, and the DoD. (Dkt. No. 30 at
¶¶ 19-22.)
DISCUSSION
I.

Motion to Dismiss

Defendants move to dismiss Plaintiffs’ Amended Complaint under Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6). (See Dkt. No. 69 at 16-22.) The Court
finds that Plaintiffs have standing to challenge the
Presidential Memorandum and have stated valid claims
upon which relief may be granted. However, Plaintiffs
have failed to state a valid claim for violation of procedural due process. The Court therefore DENIES
Defendants’ Motion to Dismiss as to Plaintiffs’ equal
protection, substantive due process, and First Amendment claims; and GRANTS Defendants’ Motion to Dismiss as to Plaintiffs’ procedural due process claim.

 9a
A.

Rule 12(b)(1)

Defendants move to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). Defendants contend the Court lacks subject
matter jurisdiction for two reasons: First, they contend Plaintiffs lack standing because they have not suffered injuries in fact. (Id. at 18-20.) Second, they
contend Plaintiffs’ claims are not ripe for resolution.
(Id. at 20-22.) Plaintiffs respond that the Presidential
Memorandum gives rise to current harm and credible
threats of impending harm sufficient for both standing
and ripeness. (See Dkt. No. 84 at 11-27.)
i.

Individual Plaintiffs

The Court finds that the Individual Plaintiffs have
standing to challenge the Presidential Memorandum.
To establish standing, Individual Plaintiffs must demonstrate: (1) an “injury in fact”; (2) a causal connection between the injury and the conduct complained of;
and (3) that it is likely their injury will be redressed by
a favorable decision. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992). “At the preliminary injunction stage, a plaintiff must make a ‘clear showing’
of his injury in fact.” Lopez v. Candaele, 630 F.3d
775, 785 (9th Cir. 2010) (quoting Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008)). An “injury
in fact” exists where there is an invasion of a legally
protected interest that is both “concrete and particularized” and “actual or imminent, not conjectural or
hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks and citations omitted).
Each of the Individual Plaintiffs satisfies these
requirements: As a result of the Retention Directive,

 10a
Plaintiffs Schmid, Muller, Lewis, Stephens, Winters,
and Doe face a credible threat of discharge. (See Dkt.
No. 84 at 14-15.) As a result of the Accession Directive, Plaintiff Schmid has been refused consideration
for appointment as a warrant officer and faces a credible
threat of being denied opportunities for career advancement. (See Dkt. Nos. 36 at ¶¶ 28-30; 70 at ¶ 3.) Plaintiffs Karnoski, D.L., and Callahan also face a credible
threat of being denied opportunities to compete for accession on equal footing with non-transgender individuals. (See Dkt. Nos. 35 at ¶¶ 16-22; 37 at ¶¶ 3-16; 42 at
¶¶ 3-5, 10-21; see also Doe 1, 2017 WL 4873042, at
*18-19 (finding the Accession and Retention Directives
impose competitive barriers on transgender individuals
who intend to accede). As a result of the Medical Care
Directive, Plaintiff Stephens faces a credible threat of
being denied surgical treatment, as he is currently
ineligible for surgery until after March 23, 2018, the
date upon which DoD is to cease funding of transitionrelated surgical procedures. 2 (Dkt. Nos. 30 at ¶ 102;
34, Ex. 7 at § 3; 40 at ¶ 14.)
In addition to these threatened harms, the Individual Plaintiffs face current harms in the form of stigmatization and impairment of free expression. The policy
set forth in the Presidential Memorandum currently denies Individual Plaintiffs the opportunity to serve in the
military on the same terms as other service members,
deprives them of dignity, and subjects them to stigmaWhile the Medical Care Directive includes an exception where
necessary “to protect the health of an individual who has already
begun a course of treatment to reassign his or her sex” (Dkt. No. 34,
Ex. 7 at § 2), the exception does not apply to Plaintiff Stephens and
does not diminish the threat of harm he faces. (Dkt. No. 40 at ¶ 14.)
2

 11a
tization. (Dkt. No. 30 at ¶¶ 217, 222, 238.) Policies that
“stigmatiz[e] members of the disfavored group as ‘innately inferior’ . . . can cause serious non-economic
injuries to those persons who are personally denied equal
treatment solely because of their membership in a
disfavored group.” Heckler v. Mathews, 465 U.S. 728,
737-740 (1984). The Presidential Memorandum currently impairs Plaintiff Jane Doe’s rights to express
her authentic gender identity, as she fears discharge
from the military as a result. (Dkt. No. 33 at ¶¶ 3-15.)
Plaintiff Doe’s self-censorship is a “constitutionally sufficient injury,” as it is based on her “actual and wellfounded fear” that the Retention Directive will take effect. See Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d
1088, 1093 (9th Cir. 2003) (“an actual and well-founded
fear that [a] law will be enforced against [him or her]”
may create standing to bring pre-enforcement claims
based on the First Amendment) (quoting Virginia v. Am.
Booksellers Ass’n, 484 U.S. 383, 393 (1988)).
Each of Defendants’ arguments to the contrary is
unavailing. First, Defendants claim the harms facing
Plaintiffs are not certain, as the Presidential Memorandum directs “further study before the military changes
its longstanding policies regarding service by transgender individuals.” (See Dkt. No. 69 at 18.) However, the Accession Directive is already in place, and
the restrictions set forth in the Medical Care Directive
are final and will be implemented on March 23, 2018.
(See Dkt. No. 34, Ex. 7 at § 3.) The Court finds that
“[t]he directives of the Presidential Memorandum, to
the extent they are definitive, are the operative policy
toward military service by transgender service members.” Doe 1, 2017 WL 4873042, at *17. Similarly,
the Court reads the Interim Guidance “as implement-

 12a
ing the directives of the Presidential Memorandum,”
and concludes that “any protections afforded by the
Interim Guidance are necessarily limited to the extent
they conflict with the express directives of the memorandum.” Id.
Second, Defendants claim Plaintiffs Karnoski, D.L.,
and Callahan have not suffered injury in fact as they
have yet to enlist in the military. (Dkt. No. 69 at 19.)
However, as a result of the Accession Directive, Plaintiffs Karnoski, D.L., and Callahan cannot compete for
accession on equal footing with non-transgender individuals. Denial of this opportunity constitutes injury
in fact. See Int’l Brotherhood of Teamsters v. United
States, 431 U.S. 324, 365-66 (1977) (“When a person’s
desire for a job is not translated into a formal application solely because of his unwillingness to engage in a
futile gesture he is as much a victim of discrimination
as is he who goes through the motions of submitting an
application.”).3
Third, Defendants rely on Allen v. Wright, 468 U.S.
737 (1984) to claim that Plaintiffs have not suffered
stigmatic injury. (Dkt. No. 69 at 18.) But unlike the
claimants in Allen, who raised abstract instances of
stigmatic injury only, the Individual Plaintiffs have idenDefendants’ claim that Plaintiff Karnoski and D.L. would not be
able to accede under the June 2016 Policy because they have recently taken steps to transition does not compel a different finding.
Plaintiffs’ injury “lies in the denial of an equal opportunity to
compete, not the denial of the job itself,” and thus the Court does
not “inquire into the plaintiffs’ qualifications (or lack thereof ) when
assessing standing.” Shea v. Kerry, 796 F.3d 42, 50 (D.C. Cir.
2015) (citing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 280-81
& n.14 (1978) (emphasis in original)).
3

 13a
tified concrete interests in accession, career advancement, and medical treatment, and have demonstrated
that they are “ ‘personally denied equal treatment’ by the
challenged discriminatory conduct.” Allen, 468 U.S. at
755 (quoting Heckler, 465 U.S. at 739-40). Such stigmatic injury is “one of the most serious consequences of
discriminatory government action and is sufficient in
some circumstances to support standing.” Id.4
ii.

Organizational Plaintiffs

The Court finds that Organizational Plaintiffs HRC,
GJL, and AMPA have standing to challenge the Presidential Memorandum. An organization has standing
where “(a) its members would otherwise have standing
to sue in their own right; (b) the interests it seeks to
protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested
requires the participation of individual members in the
lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n,
432 U.S. 333, 343 (1977). Each of the Organizational
Plaintiffs satisfies these requirements.
Individual
Plaintiffs Karnoski and Schmid are members of HRC,
GJL, and AMPA, and Individual Plaintiffs Muller,
Stephens, and Winters are also members of AMPA.
(See Dkt. No. 30 at ¶¶ 141-145.) The interests each
Organizational Plaintiff seeks to protect are germane
to their organizational purposes, which include ending
discrimination against LGBTQ individuals (HRC and
GJL) and supporting families and allies of LGBT service members and veterans (AMPA). (Id. at ¶¶ 16-18.)
As Plaintiffs seek injunctive and declaratory relief,
Allen addressed racial discrimination specifically. However, the
Supreme Court has also acknowledged stigmatic injury arising from
gender-based discrimination. See Heckler, 465 U.S. at 737-40.
4

 14a
participation by the organizations’ individual members
is not required. See Associated Gen. Contractors of
Cal., Inc. v. Coal. for Econ. Equity, 950 F.2d 1401, 1408
(9th Cir. 1991) (participation of individual members not
required where “the claims proffered and relief requested [by an organization] do not demand individualized proof on the part of its members”).
iii. Washington State

The Court finds that Washington State has standing
to challenge the Presidential Memorandum. A state
has standing to sue the federal government to vindicate
its sovereign and quasi-sovereign interests. See Massachusetts v. E.P.A., 549 U.S. 497, 518-520 (2007).
Sovereign interests include a state’s interest in protecting the natural resources within its boundaries.
Id. at 518-519. Quasi-sovereign interests include a
state’s interest in the health and physical and economic
well-being of its residents, and in “securing residents
from the harmful effects of discrimination.” Alfred L.
Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S.
592, 607, 609 (1982). Washington State is home to approximately 45,000 active duty service members and
approximately 32,850 transgender adults. (Dkt. No. 97
at 6.) The Washington National Guard is comprised
of service members who assist with emergency preparedness and disaster recovery planning, including protecting Washington State’s natural resources from wildfires, landslides, flooding, and earthquakes. (Id. at 8.)
Washington State contends that prohibiting transgender individuals from serving openly adversely impacts its ability to recruit and retain members of the
Washington National Guard, and thereby impairs its
ability to protect its territory and natural resources.

 15a
(Id.) Additionally, Washington State contends that
the prohibition implicates its interest in maintaining and
enforcing its anti-discrimination laws, protecting its
residents from discrimination, and ensuring that employment and advancement opportunities are not unlawfully restricted based on transgender status. (Id.
at 8-9.) The Court agrees.
The injuries to the Individual Plaintiffs, the Organizational Plaintiffs, and to Washington State are indisputably traceable to the policy set forth in the Presidential Memorandum, and may be redressed by a favorable ruling from this Court. Therefore, the Court
DENIES Defendants’ Motion to Dismiss for lack of
standing.
iv.

Ripeness

The Court finds that Plaintiffs’ claims are ripe for
review. Ripeness “ensure[s] that courts adjudicate
live cases or controversies” and do not “issue advisory
opinions [or] declare rights in hypothetical cases.”
Bishop Paiute Tribe v. Inyo Cnty., 863 F.3d 1144, 1153
(9th Cir. 2017) (citation omitted). “A proper ripeness
inquiry contains a constitutional and a prudential component.” Id. (citation omitted). Because Plaintiffs
have standing to challenge the Presidential Memorandum, their claims satisfy the requirement for constitutional ripeness. See id. (constitutional ripeness “is
often treated under the rubric of standing”). Because
they raise purely legal issues (i.e., whether the Presidential Memorandum violates their constitutional rights),
and because withholding consideration of these issues
will subject Plaintiffs to hardships (i.e., denial of career
opportunities and transition-related medical care, stigmatic injury, and impairment of self-expression), they also

 16a
satisfy the requirement for prudential ripeness. See
id. at 1154 (prudential ripeness is “guided by two overarching considerations: the fitness of the issues for
judicial decision and the hardship to the parties of
withholding court consideration.”) (citation and internal quotation marks omitted).
Defendants claim this case is not ripe for resolution
because the policy on military service by transgender
individuals is “still being studied, developed, and implemented.” (Dkt. No. 69 at 20.) However, President Trump’s announcement on Twitter and his Presidential Memorandum did not order a study, but instead
unilaterally proclaimed a prohibition on transgender
service members. See Stone, 2017 WL 5589122, at
*10 (“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.”). Defendants’ contention that Plaintiffs must first exhaust
administrative remedies before the Court can consider
their claims is also unavailing, as the Ninth Circuit has
explained that “[r]esolving a claim founded solely upon a
constitutional right is singularly suited to a judicial forum
and clearly inappropriate to an administrative board.”
Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973).
Therefore, the Court DENIES Defendants’ Motion
to Dismiss for lack of subject matter jurisdiction.
B. Rule 12(b)(6)

To survive a motion to dismiss for failure to state a
claim upon which relief can be granted, a complaint
“must contain sufficient factual matter, accepted as

 17a
true, to ‘state a claim to relief that is plausible on its
face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This requirement is met where the complaint
“pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. The complaint need not
include detailed allegations, but it must have “more
than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. In evaluating a motion
under Rule 12(b)(6), the Court accepts all facts alleged
in the complaint as true, and makes all inferences in
the light most favorable to the non-movant. Barker v.
Riverside Cnty. Office of Educ., 584 F.3d 821, 824
(9th Cir. 2009) (internal citations omitted).
The Court finds that Plaintiffs’ Amended Complaint
states valid claims for violation of equal protection,
substantive due process, and the First Amendment.
Plaintiffs have established a likelihood of success on
the merits with regard to each of these claims (see discussion of Plaintiffs’ Motion for Preliminary Injunction,
infra), and for the same reasons, these claims survive
under Rule 12(b)(6). However, the Court finds that
Plaintiffs’ Amended Complaint fails to state a valid
claim for violation of procedural due process. Plaintiffs’ Amended Complaint alleges neither a “protectible
liberty or property interest” nor a “denial of adequate
procedural protections” as required for a procedural
due process claim. (See Dkt. No. 30 at ¶¶ 225-230;

 18a
Sanchez v. City of Fresno, 914 F. Supp. 2d 1079, 1103
(9th Cir. 2012).) 5
Therefore, the Court DENIES Defendants’ Motion
to Dismiss with respect to Plaintiffs’ equal protection,
substantive due process and First Amendment claims,
and GRANTS Defendants’ Motion to Dismiss with respect to Plaintiffs’ procedural due process claim.
II. Motion for Preliminary Injunction

The Court finds that Plaintiffs are entitled to a preliminary injunction to preserve the status quo that existed prior to the change in policy announced by President
Trump on Twitter and in his Presidential Memorandum.
The Court considers four factors in evaluating Plaintiffs’
request for a preliminary injunction: (1) the likelihood
of success on the merits; (2) the likelihood of irreparable
harm in the absence of an injunction; (3) the balance of
equities; and (4) the public interest. Winter, 555 U.S.
at 20. “When the government is a party, these last two
factors merge.” Drakes Bay Oyster Co. v. Jewell,
747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v.
Holder, 556 U.S. 418, 435 (2009)).
A.

Likelihood of Success on the Merits

The Court finds that Plaintiffs have established a likelihood of success on the merits of their equal protection,
substantive due process, and First Amendment claims.

The Court notes that the procedural due process claim is elaborated upon in detail in Plaintiffs’ Motion for Preliminary Injunction and Reply. (See Dkt. Nos. 32 at 22-23; 84 at 39-40.)
5

 19a
i.

Equal Protection

Plaintiffs have established a likelihood of success on
the merits of their equal protection challenge. The
Equal Protection Clause prohibits government action
“denying to any person the equal protection of the
laws.” United States v. Windsor, 133 S. Ct. 2675, 2695
(2013). Plaintiffs contend the policy set forth in the
Presidential Memorandum denies them equal protection in that it impermissibly classifies individuals based
on transgender status and gender identity and is not
substantially related to an important government interest. (Dkt. No. 30 at ¶¶ 217-224.)
The Court must first determine whether the policy
burdens “a ‘suspect’ or ‘quasi-suspect’ class.” See
Ball v. Massanari, 254 F.3d 817, 823 (9th Cir. 2001).
The Court concludes that the policy distinguishes on
the basis of transgender status, a quasi-suspect classification, and is therefore subject to intermediate scrutiny. See id. (noting that gender is a quasi-suspect
classification); Schwenk v. Hartford, 204 F.3d 1187,
1201-02 (9th Cir. 2000) (noting that discrimination based
on a person’s failure “to conform to socially-constructed
gender expectations” is a form of gender discrimination) (citing Price Waterhouse v. Hopkins, 490 U.S. 228,
240 (1989)).6
Next, the Court must determine whether the policy
satisfies intermediate scrutiny. Id. A policy subject
to intermediate scrutiny must be supported by an “exThe June 2016 Policy also stated it was DoD’s position “consistent with the U.S. Attorney General’s opinion, that discrimination based on gender identity is a form of sex discrimination.”
(See Dkt. No. 48, Ex. C at 6.)
6

 20a
ceedingly persuasive justification.” United States v.
Virginia, 518 U.S. 515, 531 (1996). The policy must
serve important governmental objectives, and the government must show “that the discriminatory means
employed are substantially related to the achievement
of those objectives.” Id. at 533 (citation omitted).
While Defendants identify important governmental interests including military effectiveness, unit cohesion,
and preservation of military resources, they fail to
show that the policy prohibiting transgender individuals from serving openly is related to the achievement of
those interests. (See Dkt. No. 69 at 33-35.) Indeed,
“all of the reasons proffered by the President for excluding transgender individuals from the military [are]
not merely unsupported, but [are] actually contradicted by the studies, conclusions, and judgment of the
military itself.” Doe 1, 2017 WL 4873042, at *30 (emphasis in original). Not only did the DoD previously
conclude that allowing transgender individuals to serve
openly would not impact military effectiveness and readiness, the working group tasked to evaluate the issue
also concluded that prohibiting open service would have
negative impacts including loss of qualified personnel,
erosion of unit cohesion, and erosion of trust in command.
(See Dkt. Nos. 46 at ¶¶ 25-26; 48 at ¶¶ 45-47.)
Defendants’ arguments to the contrary are unavailing. While Defendants raise concerns about transitionrelated medical conditions and costs, their concerns
“appear to be hypothetical and extremely overbroad.”
Doe 1, 2017 WL 4873042, at *29. For instance, Defendants claim that “at least some transgender individuals
suffer from medical conditions that could impede the
performance of their duties,” including gender dysphoria, and complications from hormone therapy and sex

 21a
reassignment surgery. (See Dkt. No. 69 at 33-34.)
But all service members might suffer from medical
conditions that could impede performance, and indeed
the working group found that it is common for service
members to be non-deployable for periods of time due
to an array of such conditions. (Dkt. No. 46 at ¶ 22.)
Defendants claim that accommodating transgender service members would “impose costs on the military.”
(Dkt. No. 69 at 34.) But the study preceding the June
2016 Policy indicates that these costs are exceedingly
minimal. (Dkt. Nos. 48, Ex. B at 57 (“[E]ven in the
most extreme scenario
. . .
we expect only a
0.13-percent ($8.4 million out of $6.2 billion) increase in
[active component] health care spending.”); 48 at ¶ 41
(“[T]he maximum financial impact . . . is an amount
so small it was considered to be ‘budget dust,’ hardly
even a rounding error, by military leadership.’ ”).) Indeed, the cost to discharge transgender service members is estimated to be more than 100 times greater than
the cost to provide transition-related healthcare. (See
Dkt. Nos. 32 at 20; 46 at ¶ 32; 48 at ¶ 18.)
Defendants’ claim that the policy prohibiting transgender individuals from serving openly is entitled to substantial deference is also unavailing. (See Dkt. No. 69 at
29.) Defendants rely on Rostker v. Goldberg, 453 U.S.
57 (1981). In Rostker the Supreme Court considered
whether the Military Selective Service Act (“MSSA”),
which compelled draft registration for men only, was
unconstitutional. Id. at 59. Finding that the MSSA
was enacted after extensive review of legislative testimony, floor debates, and committee reports, the Supreme Court held that Congress was entitled to deference when, in “exercising the congressional authority
to raise and support armies and make rules for their

 22a
governance,” it does not act “unthinkingly” or “reflexively and not for any considered reason.” See id. at
71-72. In contrast, the prohibition on military service
by transgender individuals was announced by President
Trump on Twitter, abruptly and without any evidence
of considered reason or deliberation. (See Dkt. No. 30
at ¶¶ 172-184.) The policy is therefore not entitled to
Rostker deference.7
Because Defendants have failed to demonstrate that
the policy prohibiting transgender individuals from serving openly is substantially related to important government interests, it does not survive intermediate scrutiny.8 Plaintiffs are therefore likely to succeed on the
merits of their equal protection claim.
ii.

Substantive Due Process 9

The Court finds that Plaintiffs have established a
likelihood of success on the merits of their substantive
due process challenge. Substantive due process protects fundamental liberty interests in individual dignity, autonomy, and privacy from unwarranted government intrusion. See U.S. Const., amend. V. These
fundamental interests include the right to make decisions concerning bodily integrity and self-definition
central to an individual’s identity. See Obergefell v.
Defendants’ reliance on Goldman v. Weinberger, 475 U.S. 503
(1986), is also misplaced. See Doe 1, 2017 WL 4873042, at *30 n.11
(distinguishing the policy at issue in Weinberger as having been
“based on the ‘considered professional judgment” of the military).
8
For the same reasons, the policy is also unlikely to survive rational basis review.
9
Having granted Defendants’ Motion to Dismiss with regard to
Plaintiffs’ procedural due process challenge, the Court does not
reach the merits of that claim at this time.
7

 23a
Hodges, 135 S. Ct. 2584, 2584 (2015) (“The Constitution
promises liberty to all within its reach, a liberty that
includes certain specific rights that allow persons . . .
to define and express their identity.”); see also Roberts
v. U.S. Jaycees, 468 U.S. 609, 619 (1984) (due process
“safeguards the ability independently to define one’s
identity that is central to any concept of liberty”). To
succeed on their substantive due process challenge,
Plaintiffs must establish a governmental intrusion upon
a fundamental liberty interest. The Court concludes
that the policy set forth in the Presidential Memorandum constitutes such an intrusion. The policy directly
interferes with Plaintiffs’ ability to define and express
their gender identity, and penalizes Plaintiffs for exercising their fundamental right to do so openly by depriving them of employment and career opportunities.
As discussed in the context of Plaintiffs’ equal protection challenge, supra, Defendants have not demonstrated that this intrusion is necessary to further an
important government interest. Plaintiffs are therefore likely to succeed on the merits of their substantive
due process challenge.
iii. First Amendment

The Court finds that Plaintiffs have established a
likelihood of success on the merits of their First Amendment challenge. In general, laws that regulate speech
based on its content (i.e., because of “the topic discussed
or the idea or message expressed”) are presumptively
unconstitutional and subject to strict scrutiny. Reed v.
Town of Gilbert, Ariz., 135 S. Ct. 2218, 2226-27 (2015).
Military regulations on speech are permitted so long as
they “restrict speech no more than is reasonably neces-

 24a
sary to protect the substantial governmental interest.”
Brown v. Glines, 444 U.S. 348, 355 (1980).
Plaintiffs contend the policy set forth in the Presidential Memorandum impermissibly burdens “speech
or conduct that ‘openly’ discloses a transgender individual’s identity or transgender status” by subjecting
openly transgender individuals to discharge and other
adverse actions. (See Dkt. No. 30 at ¶¶ 196-197, 234236.) The Court agrees. The policy penalizes transgender service members—but not others—for disclosing
their gender identity, and is therefore a content-based
restriction. Even giving the government the benefit
of a more deferential standard of review under Brown,
444 U.S. at 355, the policy does not survive. As discussed in the context of Plaintiffs’ equal protection
challenge, supra, Defendants have not demonstrated
that the intrusion upon protected expression furthers
an important government interest.
B. Irreparable Harm

The Court finds that Plaintiffs are likely to suffer
irreparable harm if an injunction does not issue. The
Individual and Organizational Plaintiffs have demonstrated a likelihood of irreparable harm in the form of
current and threatened injuries in fact, including denial
of career opportunities and transition-related medical
care, stigmatic injury, and impairment of self-expression.
While Defendants claim these harms can be remedied
with money damages (Dkt. No. 69 at 23-24), they are
incorrect. Unlike the plaintiffs in Anderson v. United
States, 612 F.2d 1112 (9th Cir. 1979) and Hartikka v.
United States, 754 F.2d 1516 (9th Cir. 1985), who alleged harms “common to most discharged employees”
(e.g., loss of income, loss of retirement, loss of reloca-

 25a
tion pay, and damage to reputation) and not “attributable to any unusual actions relating to the discharge
itself,” Hartikka, 754 F.2d at 1518, the harms facing
the Individual Plaintiffs are directly attributable to the
policy set forth in the Presidential Memorandum.
Back pay and other monetary damages proposed by
Defendants will not remedy the stigmatic injury caused
by the policy, reverse the disruption of trust between
service members, nor cure the medical harms caused
by the denial of timely health care. (See Dkt. No. 84
at 28.) Moreover, to the extent Plaintiffs are likely to
succeed on the merits of their constitutional claims,
these violations are yet another form of irreparable
harm. See Associated Gen. Contractors, 950 F.2d at
1412 (“alleged constitutional infringement will often
alone constitute irreparable harm.”) (citation omitted);
see also Klein v. City of San Clemente, 584 F.3d 1196,
1207-08 (9th Cir. 2009) (“loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”) (quoting Elrod
v. Burns, 427 U.S. 347, 373 (1976)).
Plaintiff Washington State has demonstrated a likelihood of irreparable harm to its sovereign and quasisovereign interests if it is “forced to continue to expend
its scarce resources to support a discriminatory policy
when it provides funding or deploys its National
Guard.” (See Dkt. No. 97 at 8-9.) Washington State
has also demonstrated that its ability to recruit and
retain service personnel for the Washington National
Guard may be irreparably harmed. See Rent-A-Center,
Inc. v. Canyon Television & Appliance Rental, Inc.,
944 F.2d 597, 603 (9th Cir. 1991) (“intangible injuries,
such as damage to ongoing recruitment efforts and
goodwill, qualify as irreparable harm.”).

 26a
C.

Balance of Equities and Public Interest

The Court finds that the balance of equities and the
public interest are in Plaintiffs’ favor. If a preliminary injunction does not issue, Plaintiffs will continue
to suffer injuries as a result of the Presidential Memorandum, including deprivation of their constitutional
rights. On the other hand, Defendants will face no
serious injustice in maintaining the June 2016 Policy
pending resolution of this action on the merits. Defendants claim they are in the process of “gathering a
panel of experts” to study the military’s policy on transgender service members and assert, without explanation,
that an injunction will “directly interfere with the panel’s work and the military’s ability to thoroughly study
a complex and important issue regarding the composition of the armed forces.” (Dkt. No. 69 at 40.) The
Court is not convinced that reverting to the June 2016
Policy, which was voluntarily adopted by DoD after extensive study and review, and which has been in place
for over a year without documented negative effects,
will harm Defendants. See Doe 1, 2017 WL 4873042,
at *33 (recognizing “considerable evidence that it is the
discharge and banning of [transgender] individuals
that would have such [negative] effects . . . .”) (emphasis in original).
Injunctive relief furthers the public interest as it “is
always in the public interest to prevent the violation of
a party’s constitutional rights.” Melendres v. Arpaio,
695 F.3d 990, 1002 (9th Cir. 2012) (citations omitted).
Defendants’ contention that the public has a strong
interest in national defense does not change this analysis, as “[a] bare invocation of ‘national defense’ simply
cannot defeat every motion for preliminary injunction

 27a
that touches on the military.” Doe 1, 2017 WL 4873042,
at *33; Stone, 2017 WL 5589122, at *16.
CONCLUSION

Plaintiffs have standing to bring this lawsuit challenging Defendants’ policy of prohibiting transgender
individuals from serving openly in the military. Plaintiffs’ claims for violations of equal protection, substantive due process, and the First Amendment are properly
plead and ripe for resolution, and Plaintiffs are entitled to
a preliminary injunction to protect the status quo with
regard to each of these claims. Plaintiffs have not properly plead a claim for violation of procedural due process.
Therefore, the Court rules as follows:
1. The Court GRANTS Defendants’ Motion to
Dismiss with respect to Plaintiffs’ procedural due process claim;
2. The Court DENIES Defendants’ Motion to
Dismiss with respect to Plaintiffs’ equal protection,
substantive due process, and First Amendment claims;
3. The Court GRANTS Plaintiffs’ Motion for a
Preliminary Injunction, and hereby enjoins Defendants
and their officers, agents, servants, employees, and
attorneys, and any other person or entity subject to
their control or acting directly or indirectly in concert
or participation with 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. This Preliminary Injunction shall take effect immediately and
shall remain in effect pending resolution of this action
on the merits or further order of this Court.

 28a
The clerk is ordered to provide copies of this order
to all counsel.
Dated Dec. 11, 2017.
/s/ MARSHA J. PECHMAN
MARSHA J. PECHMAN
United States District Judge

 29a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

Case No. C17-1297-MJP
RYAN KARNOSKI, ET AL., PLAINTIFFS
v.
DONALD J. TRUMP, ET AL., DEFENDANTS
STATE OF WASHINGTON, INTERVENOR
v.
DONALD J. TRUMP, ET AL., DEFENDANTS
Filed: Dec. 29, 2017
ORDER DENYING MOTION FOR
CLARIFICATION AND PARTIAL STAY OF
PRELIMINARY INJUNCTION PENDING APPEAL

THIS MATTER comes before the Court on Defendants’ Motion for Clarification and Motion for Partial
Stay of Preliminary Injunction Pending Appeal. (Dkt.
No. 106.) Having reviewed the Motion, the Responses
(Dkt. Nos. 114, 119), and all related papers, the Court
DENIES the proposed clarification set forth in Defendants’ Motion for Clarification and DENIES Defendant’s Motion for Partial Stay of Preliminary Injunction
Pending Appeal.

 30a
BACKGROUND

On July 26, 2017, President Donald J. Trump announced on Twitter that the United States government
will no longer allow transgender individuals to serve in
any capacity in the military. (Dkt. No. 34, Ex. 6.)
Prior to this announcement, the military concluded that
transgender individuals should be permitted to serve
openly. On June 30, 2016, the Secretary of Defense
issued a directive-type memorandum stating that “[n]ot
later than July 1, 2017,” the military would begin accession of transgender enlistees. (Dkt. No. 48, Ex. C
at § 2.) On June 30, 2017, Secretary of Defense James
N. Mattis deferred the deadline to January 1, 2018.
(Dkt. No. 34-3.) President Trump’s July 26, 2017 announcement and the August 25, 2017 Presidential Memorandum thereafter prohibited the accession of openly
transgender enlistees indefinitely (the “Accessions Directive”). (Dkt. No. 34, Exs. 6, 7.)
On December 11, 2017, the Court entered an order
granting Plaintiffs’ Motion for a Preliminary Injunction. (Dkt. No. 103.) The order enjoined 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” regarding military service by transgender
individuals. (Id. at 23.)
Defendants now request clarification as to the terms
of the Court’s Order. (Dkt. No. 106.) Specifically, Defendants seek clarification as to whether Secretary
Mattis may exercise “independent discretion” to further postpone the January 1, 2018 deadline for accession by transgender enlistees “to further study whether
the policy will impact military readiness and lethality

 31a
or to complete further steps needed to implement the
policy.” (Id. at 2.) In the alternative, Defendants
move for a partial stay of the preliminary injunction as
to the Accessions Directive. (Id. at 4.)
DISCUSSION
I.

Motion for Clarification

Defendants move for clarification of the Court’s Order as to the Accessions Directive. Essentially, Defendants contend that the Court’s Order does not prohibit Secretary Mattis from implementing a policy this
Court has already enjoined. This claim is without
merit. The Court’s Order clearly enjoined 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” regarding military service by transgender individuals. (Dkt. No. 103 at 23.) Prior to
July 26, 2017, the status quo was a policy permitting
accession of transgender individuals no later than January 1, 2018. (See Dkt. No. 48, Ex. C; Dkt. No. 34-3.)
Any action by any Defendant that is inconsistent with
this status quo is preliminarily enjoined.
II. Motion for Partial Stay

In the alternative, Defendants move for a partial
stay of the Court’s Order granting a preliminary injunction as to the Accessions Directive, pending review
by the Ninth Circuit. Defendants contend—for the
first time during these proceedings—that they are not
prepared to begin accessions of transgender enlistees
by January 1, 2018. (Dkt. No. 106 at 4-6.) Defendants contend that Plaintiffs will not be harmed by a
stay, and that they are likely to prevail on the merits of

 32a
their appeal. (Id. at 6-8.) The Court will not stay its
preliminary injunction pending appeal.
A stay pending appeal “is an intrusion into the ordinary processes of administration and judicial review.”
Nken v. Holder, 556 U.S. 418, 427 (2009) (citation
omitted). In determining whether to grant a stay, the
Court considers: (1) whether Defendants have made a
strong showing that they are likely to succeed on the
merits; (2) whether Defendants will be irreparably injured absent a stay; (3) whether issuance of the stay
will substantially injure Plaintiffs and Washington State;
and (4) whether the public interest supports a stay.
See Nken, 556 U.S. at 434. The first two factors are
the most critical. Id.; see also Washington v. Trump,
847 F.3d 1151, 1164 (9th Cir. 2017).
A.

Likelihood of Success on the Merits

The Court finds that Defendants have not made a
“strong showing” that they are likely to succeed on the
merits of their appeal. Nken, 556 U.S. at 434. Each
of the arguments raised by Defendants already has
been considered and rejected by the Court, and Defendants have taken no action to remedy the constitutional
violations that supported entry of a preliminary injunction in the first place. (See Dkt. No. 103 at 15-20.)
Defendants’ argument that Secretary Mattis has “independent authority to extend the effective date” for
accessions by transgender enlistees is also unpersuasive. (Dkt. No. 106 at 7.) Secretary Mattis does not
have authority to effectuate an unconstitutional policy,
and certainly not one which has been enjoined.

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B.

Irreparable Injury to Defendants

The Court finds that Defendants have not shown
that they will be irreparably harmed without a stay.
Defendants contend that complying with the Court’s
Order will “impose extraordinary burdens” on the military as accession by transgender enlistees “necessitates
preparation, training, and communication to ensure those
responsible for application of the accession standards
are thoroughly versed in the policy and its implementation procedures.” (Dkt. 107 at ¶ 5; see also Dkt. No. 106
at 4-5.) In particular, Defendants claim that “the military will need to promulgate new, complex, and interdisciplinary medical standards that will necessarily require evaluation across several medical specialties, including behavior and mental health, surgical procedures,
and endocrinology.” (Dkt. No. 106 at 4-5.) Defendants
have had since June 2016 to prepare for accessions of
transgender enlistees into the military, and the record
indicates that considerable progress has been made
toward this end. (See Dkt. No. 115 at ¶¶ 4-5; Dkt.
No. 116 at ¶¶ 2-4; Dkt. No. 117 at ¶ 3.) In fact, on
December 8, 2017, the Department of Defense issued a
policy memorandum setting forth specific guidance for
“processing transgender applicants for military service,” including guidelines for medical personnel. (Dkt.
No. 120-1.) Notwithstanding their implementation efforts to date, Defendants claim that “the Department
still would not be adequately and properly prepared to
begin processing transgender applicants for military
service by January 1, 2018.” (Dkt. No. 107 at 107.)
However, Defendants have provided no evidence that
the accessions criteria for transgender enlistees are any
more complex or burdensome than the criteria for nontransgender enlistees. (Dkt. No. 107 at ¶ 9.) Defend-

 34a
ants’ conclusory claims are unsupported by evidence and
insufficient to establish a likelihood of irreparable harm.
C.

Injury to Plaintiffs and Washington State and
Impact on Public Interest

Having found that Defendants have not shown either a likelihood of success on the merits or a likelihood
of irreparable injury absent a stay, the Court need not
reach the remaining factors. See Washington v. Trump,
847 F.3d at 1164. However, the Court also finds that
these remaining factors do not support entry of a stay.
The Court already found that Plaintiffs and Washington State are likely to suffer irreparable injury absent a preliminary injunction, and for the same reasons,
will be injured by a stay. With regard to the Individual Plaintiffs, the Court found that the Accessions
Directive violates their constitutional rights, denies
them dignity, and subjects them to stigmatization.
(Id. at 8, 20-21.) With regard to Washington State,
the Court found that the policy threatens the State’s
ability to recruit and retain members of the Washington National Guard (and thereby protect its territory
and natural resources) and to protect its residents from
discrimination. (Id. at 11-12, 21.) For similar reasons,
the Court found that a preliminary injunction furthers
the public interest. (Dkt. No. 103 at 21-22.) Defendants have provided no evidence to the contrary.
CONCLUSION

Because Defendants have been enjoined 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” regarding military service by transgender individuals,

 35a
the Court CLARIFIES that any action intended to
further delay the January 1, 2018 deadline for accession
by transgender enlistees is enjoined, whether taken by
Secretary Mattis or any other government agency or
employee. Because Defendants have not demonstrated
that a partial stay of the Court’s Order is warranted,
the Court DENIES Defendant’s Motion.
The clerk is ordered to provide copies of this order
to all counsel.
Dated Dec. 29, 2017.
/s/

MARSHA J. PECHMAN
MARSHA J. PECHMAN
United States District Judge

 36a
APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

Case No. C17-1297-MJP
RYAN KARNOSKI, ET AL., PLAINTIFFS
v.
DONALD J. TRUMP, ET AL., DEFENDANTS
Filed: Apr. 13, 2018
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

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

 37a
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

 38a
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
People1

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”):
President Trump’s Announcement on Twitter:

As used throughout this Order, and as explained in greater
detail in this section, the “Ban” refers to Defendants’ policy generally prohibiting military service by openly transgender people,
as announced in President Trump’s twitter Announcement and
2017 Memorandum and as further detailed in the Implementation
Plan and 2018 Memorandum.
1

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40a
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.)
The 2017 Memorandum:

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

 41a
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

 42a
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 un-

dergone 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.)

 43a
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 transitionrelated care; (2) the readiness implications of allowing
transgender service members to serve openly; and

 44a
(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

 45a
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
On June 30, 2017, Secretary Mattis extended the effective date
for accepting transgender recruits to January 1, 2018. (Dkt. No.
197, Ex. 3.)
2

 46a
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 ¶¶ 1618.) 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.
Three other district courts also entered preliminary injunctions
against the Ban. See Doe 1 v. Trump, 275 F. Supp. 3d 167 (D.D.C.
2017); Stone v. Trump, 280 F. Supp. 3d 747 (D. Md. 2017); Stockman v. Trump, No. 17-cv-1799-JGB-KK, Dkt. No. 79 (C.D. Cal.
Dec. 22, 2017).
4
Plaintiffs are joined by amici the Constitutional Accountability
Center (Dkt. No. 163, Ex. 1); Legal Voice (Dkt. No. 169); Retired
Military Officers and Former National Security Officials (Dkt. No.
152, Ex. A); and the Commonwealths of Massachusetts and Penn3

 47a
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 brought against President Trump. (Dkt. No. 194.)
On March 23, 2018, as these motions were pending
and only days before the Court was set to hear oral argument, President Trump issued the 2018 Memorandum. (Dkt. No. 214, Ex. 1.) On March 27, the Court
ordered the parties to present supplemental briefing
on the effect of the 2018 Memorandum and the Implementation Plan. (Dkt. No. 221.) That briefing has now
been completed and this matter is ready for ruling.
(See Dkt. Nos. 226, 227, 228.)
DISCUSSION
I.

Legal Standard

Summary judgment is proper if “the movant shows
that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving party bears
the initial burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). To defeat a motion for summary judgment, the non-movant must point to facts supported by the record which demonstrate a genuine issue of material fact. Lujan v. National Wildlife Federasylvania, the States of California, Connecticut, Delaware, Hawaii,
Illinois, Iowa, Maryland, New Jersey, New Mexico, New York,
Oregon, Rhode Island, Vermont, and the District of Columbia (Dkt.
No. 170, Ex. A.)

 48a
tion, 497 U.S. 871, 888 (1990). Conclusory, non-specific
statements are not sufficient. Id. Similarly, “a party
cannot manufacture a genuine issue of material fact
merely by making assertions in its legal memoranda.”
S.A. Empresa de Viacao Aerea Rio Grandense v. Walter
Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982).
II.

Plaintiffs’ and Washington’s Motions for Summary
Judgment

Plaintiffs and Washington contend that summary
judgment is proper because the Ban is unsupported by
any constitutionally adequate government interest as a
matter of law, and therefore violates equal protection,
substantive due process, and the First Amendment.
(Dkt. No. 129 at 15-28; Dkt. No. 150 at 13-23.) Defendants respond that disputes of material fact preclude
summary judgment, including disputes as to (1) whether
Plaintiffs’ and Washington’s challenges are moot as a
result of the 2018 Memorandum; (2) whether Plaintiffs
and Washington have standing; and (3) whether the Ban
satisfies the applicable level of scrutiny. (Dkt. No. 194
at 5-24; Dkt. No. 226 at 3-11.) The Court addresses
each of these issues in turn:
A.

Mootness

Defendants claim that Plaintiffs’ and Washington’s
challenges are now moot, as the policy set forth in the
2017 Memorandum has been “revoked” and replaced by
that in the 2018 Memorandum. (Dkt. No. 226 at 3-7.)
Defendants claim the “new policy” has “changed substantially,” such that it presents a “substantially different
controversy.” (Id. at 6 (citations omitted.)) Plaintiffs
and Washington respond that there is no “new policy”
at all, as the 2018 Memorandum and the Implementa-

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tion Plan merely implement the directives of the 2017
Memorandum. (Dkt. No. 227 at 2; Dkt. No. 228 at 7-8.)
“The burden of demonstrating mootness ‘is a heavy
one.’ ” Los Angeles County v. Davis, 440 U.S. 625, 631
(1979) (quoting United States v. W.T. Grant Co., 345
U.S. 629, 632-33 (1953)). The Ninth Circuit has explained that a case is not moot unless “subsequent events
make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,”
McCormack v. Herzog, 788 F.3d 1017, 1024 (9th Cir.
2015) (quoting Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)),
such that “the litigant no longer ha[s] any need of the
judicial protection that is sought.” Jacobus v. Alaska,
338 F.3d 1095, 1102-03 (9th Cir. 2003) (quoting Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 224
(2000)). Accordingly, courts find cases moot only where
the challenged policy has been completely revoked or
rescinded, not merely voluntarily ceased. See Davis,
440 U.S. at 631 (holding that a case is moot only where
“there can be no reasonable expectation” that the alleged violation will recur and “interim relief or events
have completely and irrevocably eradicated the effects
of the alleged violation”); City of Mesquite v. Aladdin’s
Castle, Inc., 455 U.S. 283, 289 (1982) (holding that “a
defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to
determine the legality of the practice”); see also
McCormack, 788 F.3d at 1025 (noting that a case is not
moot where the government never “repudiated . . .
as unconstitutional” the challenged policy).
The Court finds that the 2018 Memorandum and the
Implementation Plan do not substantively rescind or

 50a
revoke the Ban, but instead threaten the very same
violations that caused it and other courts to enjoin the
Ban in the first place. The 2017 Memorandum prohibited the accession and authorized the discharge of openly
transgender service members (the Accession and Retention Directives); prohibited the use of DoD and
DHS resources to fund transition-related surgical procedures (the Medical Care Directive); and directed
Secretary Mattis to submit “a plan for implementing”
both its “general policy” and its “specific directives” no
later than February 21, 2018. (Dkt. No. 149, Ex. 2 at
§§ 1-3.) The 2017 Memorandum did not direct Secretary Mattis to determine whether or not the directives
should be implemented, but instead ordered the directives to be implemented by specific dates and requested
a plan for how to do so.
The Implementation Plan adheres to the policy and
directives set forth in the 2017 Memorandum with few
exceptions: With regard to the Accession and Retention Directives, the Implementation Plan excludes from
military service and authorizes the discharge of transgender people who “require or have undergone gender
transition” and those “with a history or diagnosis of
gender dysphoria” unless they have been “stable for
36 consecutive months in their biological sex prior to
accession.” (Dkt. No. 224, Ex. 1 at 3-4.) With regard
to the Medical Care Directive, the Implementation Plan
provides that the military will, with few exceptions, no
longer provide transition-related surgical care (as people
who “require . . . gender transition” will no longer be
permitted to serve and those who are currently serving
will be subject to discharge). (Id.)

 51a
Defendants claim that the 2018 Memorandum and
the Implementation Plan differ from the 2017 Memorandum in that they do not mandate a “categorical”
prohibition on service by openly transgender people
and “contain[] several exceptions allowing some transgender individuals to serve.” (Dkt. No. 226 at 6-7).
The Court is not persuaded. The Implementation Plan
prohibits transgender people—including those who have
neither transitioned nor been diagnosed with gender
dysphoria—from serving, unless they are “willing and
able to adhere to all standards associated with their
biological sex.” (Dkt. No. 224, Ex. 1 at 4, Ex. 2 at 7.)
Requiring transgender people to serve in their “biological sex”5 does not constitute “open” service in any
meaningful way, and cannot reasonably be considered
an “exception” to the Ban. Rather, it would force transgender service members to suppress the very characteristic that defines them as transgender in the first
place.6 (See Dkt. No. 143 at ¶ 19 (“The term ‘transThe Court notes that the Implementation Plan uses the term
“biological sex,” apparently to refer to the sex one is assigned at
birth. This is somewhat misleading, as the record indicates that
gender identity—“a person’s internalized, inherent sense of who
they are as a particular gender (i.e., male or female)”—is also widely
understood to have a “biological component.” (See Dkt. No. 143 at
¶¶ 20-21.)
6
While the Implementation Plan contains an exception that allows current service members to serve openly and in their preferred gender and receive “medically necessary” treatment for
gender dysphoria, the exception is narrow, and applies only to
those service members who “were diagnosed with gender dysphoria by a military medical provider after the effective date of the
Carter [P]olicy” (i.e., June 30, 2016) but “before the effective date”
of the policy set forth in the Implementation Plan. (Dkt. No. 224,
Ex. 2 at 7-8.) Further, this exception is severable from the re5

 52a
gender’ is used to describe someone who experiences
any significant degree of misalignment between their
gender identity and their assigned sex at birth.”); Dkt.
No. 224, Ex. 2 at 9 n.10 (“[T]ransgender” is “an umbrella term used for individuals who have sexual identity
or gender expression that differs from their assigned sex
at birth.”)
Therefore, the Court concludes that the 2018 Memorandum and the Implementation Plan do not moot Plaintiffs’ and Washington’s existing challenges.
B.

Standing

Defendants claim that Plaintiffs and Washington
lack standing to challenge the Ban, and that the 2018
Memorandum and Implementation Plan “have significantly changed the analysis.” (Dkt. No. 194 at 6-12;
Dkt. No. 226 at 7.)
Standing requires (1) an “injury in fact”; (2) a “causal connection between the injury and the conduct complained of ”; and (3) a likelihood “that the injury will be
redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal
quotation marks and citations omitted). An “injury in
fact” exists where there is an invasion of a legally protected interest that is both “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 560 (internal quotation marks and
citations omitted).

mainder of the Implementation Plan. (Id. at 7 (“[S]hould [the
DoD]’s decision to exempt these Service members be used by a
court as a basis for invalidating the entire policy, this exemption is
and should be deemed severable from the rest of the policy.”).)

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While the Court previously concluded that both
Plaintiffs and Washington established standing at the
preliminary injunction stage (Dkt. No. 103 at 7-12),
their burden for doing so on summary judgment is
more exacting and requires them to set forth “by affidavit or other evidence ‘specific facts’ ” such that a “fairminded jury” could find they have standing. Id. at
561; see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986).
The Court considers standing for the Individual
Plaintiffs, the Organizational Plaintiffs, and Washington in turn:
1. Individual Plaintiffs

Each of the Individual Plaintiffs has submitted an
affidavit detailing the ways in which they have already
been harmed by the Ban, and would be further harmed
were it to be implemented. (See Dkt. Nos. 130-138.)
While Defendants claim that “Plaintiffs are obviously
not suffering any harm from the revoked 2017 Memorandum,” and “would neither sustain an actual injury
nor face an imminent threat of future injury” as a result of the 2018 Memorandum, the Court disagrees and
concludes that each of the Individual Plaintiffs has
standing to challenge the Ban.
Karnoski, D.L, and Callahan have “taken clinically
appropriate steps to transition” and would be excluded
from acceding under the Implementation Plan. (Dkt.
No. 130 at ¶ 10; Dkt. No. 132 at ¶ 8; Dkt. No. 137 at
¶ 8.) Whether they could have acceded under the Carter Policy and whether they might be able to obtain
“waivers,” as Defendants suggest, are irrelevant.
(See Dkt. No. 226 at 8.) As the Court previously

 54a
found, their injury “lies in the denial of an equal opportunity to compete, not the denial of the job itself,”
and the Court need not “inquire into the plaintiff  ’s
qualifications (or lack thereof  ) when assessing standing.” (Dkt. No. 103 at 10 n.3 (citing Shea v. Kerry,
796 F.3d 42, 50 (D.C. Cir. 2015)) (emphasis in original).)
Doe does not currently serve openly, but was intending to come out and to transition surgically before President Trump’s Twitter Announcement. (Dkt. No. 138 at
¶¶ 8-11.) The Ban unambiguously subjects her to discharge should she seek to do either. (See Dkt. No. 224,
Ex. 1.) Schmid, Muller, Lewis, Stephens, and Winters
have been diagnosed with gender dysphoria, and likewise would be subject to discharge under the Ban. 7
Defendants claim that the currently serving Plaintiffs were
“diagnosed with gender dysphoria within the relevant time period”
and “therefore would be able to continue serving in their preferred
gender, change their gender marker, and receive all medically necessary treatment” under the Implementation Plan’s narrow exception. (Dkt. No. 226 at 8.) The record does not support this claim.
As noted previously, the exception applies only to current service
members who “were diagnosed with gender dysphoria by a military
medical provider after the effective date of the Carter [P]olicy”
(i.e., June 30, 2016) but “before the effective date” of the policy set
forth in the Implementation Plan. (See supra, n.6; Dkt. No. 224,
Ex. 2 at 7-8 (emphasis added).) The record suggests that many, if
not all, of the currently serving Plaintiffs were diagnosed before
June 30, 2016. For example, Schmid was diagnosed “approximately
four years ago.” (Dkt. No. 131 at ¶ 9.) Muller was diagnosed “approximately six years ago.” (Dkt. No. 133 at ¶ 15.) Lewis, Stephens, and Winters were diagnosed “approximately three years
ago,” “approximately two and a half years ago,” and “approximately
two years ago” respectively. (Dkt. No. 134 at ¶ 10; Dkt. No. 135 at
¶ 10; Dkt. No. 136 at ¶ 10.) There is also no indication that any of
the currently serving Plaintiffs received their diagnosis from a
“military medical provider.”
7

 55a
(Dkt. No. 131 at ¶ 9; Dkt. No. 133 at ¶ 15; Dkt. No. 134
at ¶ 10; Dkt. No. 135 at ¶ 10; Dkt. No. 136 at ¶ 10.)
The threat of discharge facing Doe, Schmid, Muller,
Lewis, Stephens, and Winters is “actual or imminent,
not conjectural or hypothetical,” and clearly gives rise
to standing. See Lujan, 504 U.S. at 560 (internal quotation marks and citation omitted).
Importantly, even if each of the Individual Plaintiffs
were granted waivers or otherwise not excluded, discharged, or denied medical care, there can be no dispute that they would nevertheless have standing to
challenge the Ban. This is because the Ban already
has denied them the opportunity to serve in the military on the same terms as others; has deprived them of
dignity; and has subjected them to stigmatization.
(See Dkt. No. 103 at 8.) Policies that “stigmatiz[e]
members of [a] disfavored group as ‘innately inferior’
. . . can cause serious non-economic injuries to those
persons who are personally denied equal treatment
solely because of their membership in a disfavored
group.” Heckler v. Mathews, 465 U.S. 728, 737-740
(1984) (citation omitted). Such stigmatic injury, when
identified in specific terms, is “one of the most serious
consequences of discriminatory government action and
is sufficient in some circumstances to support standing.” Allen v. Wright, 468 U.S. 737, 755 (1984), abrogated on other grounds, 134 S. Ct. 1377 (2014).
Each of the Individual Plaintiffs has detailed the
stigmatic injuries they have suffered through affidavits. For example, Karnoski has explained that the
Ban has caused him “great distress, discomfort, and
pain.” (Dkt. No. 130 at ¶ 21.) Schmid has explained
that the Ban’s “abrupt change in policy and implicit

 56a
commentary on [her] value to the military and competency to serve has caused [her] to feel tremendous
anguish,” and that since it was announced, she has lost
sleep and suffered “an immense amount of anxiety.”
(Dkt. No. 131 at ¶¶ 23-24, 26.) Muller has explained
that the Ban was “devastating” and “wounded [her]
more than any combat injury could.” (Dkt. No. 133 at
¶¶ 30-31.) Doe has explained that the Ban precludes
her from expressing her authentic gender identity, and
that as a result, she has not come out. (Dkt. No. 138
at ¶¶ 10-11.) Doe’s self-censorship alone is a “constitutionally sufficient injury,” as it is based on her “actual
and well-founded fear” of discharge. See Cal. Pro-Life
Council, Inc. v. Getman, 328 F.3d 1088, 1095 (9th Cir.
2003) (holding that a person’s “actual and well-founded
fear that [a] law will be enforced against him or her”
may give rise to standing to bring pre-enforcement
claims under the First Amendment and that “selfcensorship is ‘a harm that can be realized even without
an actual prosecution’  ”) (quoting Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393 (1988)).
Therefore, the Court concludes that each of the Individual Plaintiffs has standing.
2. Organizational Plaintiffs

As each of the Individual Plaintiffs has standing, so
too do the organizations they represent. An organization has standing where “(a) its members would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor
the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State
Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).

 57a
Each of the Organizational Plaintiffs satisfies these
requirements. Karnoski and Schmid are members of
HRC, GJL, and AMPA, and Muller, Stephens, and
Winters are also members of AMPA. (Dkt. No. 130 at
¶ 3; Dkt. No. 131 at ¶ 5; Dkt. No. 133 at ¶ 5; Dkt. No. 135
at ¶ 4; Dkt. No. 136 at ¶ 4; Dkt. No. 140 at ¶ 3.) The
interests each Organizational Plaintiff seeks to protect
are germane to their organizational purposes, which include ending discrimination against lesbian, gay, bisexual, transgender and queer (“LGBTQ”) individuals
(HRC and GJL) and supporting families and allies of
LGBT service members and veterans (AMPA). (Dkt.
No. 139 at ¶ 2; Dkt. No. 140 at ¶ 2; Dkt. No. 141 at ¶ 2.)
Therefore, the Court concludes that each of the Organizational Plaintiffs has standing.
3. Washington

Defendants claim that “Washington has not even
attempted to satisfy its burden to demonstrate standing,” and that “in granting Washington’s motion to intervene, the Court expressly declined to decide whether
Washington possessed standing to sue.” (Dkt. No. 194
at 12.) To the contrary, the Court explicitly found
that Washington had standing in its own right, and not
merely as an intervenor. (Dkt. No. 103 at 11-12.)
A state has standing to sue the federal government
to vindicate its sovereign and quasi-sovereign interests.
See Massachusetts v. E.P.A., 549 U.S. 497, 518-520
(2007). Sovereign interests include a state’s interest
in protecting the natural resources within its boundaries. Id. at 518-19. Quasi-sovereign interests include
its interest in “the health and well-being—both physical and economic—of its residents,” and in “securing

 58a
residents from the harmful effects of discrimination.”
Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel.,
Barez, 458 U.S. 592, 607, 609 (1982).
Washington contends that the Ban will impede its
ability to protect its residents and natural resources
and will undermine the efficacy of its National Guard.
(Dkt. No. 150 at 9-10.) Washington is home to approximately 60,000 active, reserve, and National Guard
members, and the military is the second largest public
employer in the state. (Id. at 9.) Washington is also
home to approximately 32,850 transgender adults, and
its laws protect these residents against discrimination
on the basis of sex, gender, and gender identity. (Id.
at 9-10); RCW §§ 49.60.030; 49.60.040(25)-(26).
Washington relies on the National Guard to assist
with emergency preparedness and disaster recovery
planning, and to protect the state’s residents and natural resources from wildfires, landslides, flooding, and
earthquakes. (Dkt. No. 150 at 9.) When the Governor
deploys the National Guard for state active duty, Washington pays its members’ wages and provides disability
and life insurance benefits for injuries they may sustain while serving the state. (Id.); RCW § 38.24.050.
The state also oversees recruitment efforts and exercises day-to-day command over Guard members in
training and most forms of active duty. (Dkt. No. 170,
Ex. A at 20.) Further, the Governor must ensure that
the Guard conforms to both federal and state laws and
regulations, including the state’s anti-discrimination
laws and, were the Ban to be implemented, conflicting
DoD policies regarding accession and retention. (Dkt.
No. 150 at 9-10; Dkt. No. 170, Ex. A at 21-22.) Thus,
in addition to diminishing the number of eligible mem-

 59a
bers for the National Guard, the Ban threatens Washington’s ability to (1) protect its residents and natural
resources in times of emergency and (2) “assur[e] its
residents that it will act” to protect them from “the
political, social, and moral damage of discrimination.”
See Snapp, 458 U.S. at 609. Defendants have not offered any contrary evidence with respect to Washington’s
sovereign and quasi-sovereign interests. Therefore, the
Court concludes that Washington has standing.
C.

Constitutional Violations

Plaintiffs contend that the Ban violates equal protection, substantive due process, and the First Amendment.
(Dkt. No. 129 at 15-28.) Washington contends that the
Ban violates equal protection and substantive due process. (Dkt. No. 150 at 13-23.) Before it can reach the
merits of these constitutional claims, the Court must
determine (1) the applicable level of scrutiny and (2) the
applicable level of deference owed to the Ban, if any.
The Court addresses each of these issues in turn:
1. Level of Scrutiny

At the preliminary injunction stage, the Court found
that transgender people were, at minimum, a quasisuspect class. (Dkt. No. 103 at 15-16.) In light of additional evidence before it at this stage, the Court today concludes that they are a suspect class, such that
the Ban must satisfy the most exacting level of scrutiny
if it is to survive.
In determining whether a classification is suspect or
quasi-suspect, the Supreme Court has observed that
relevant factors include: (1) whether the class has
been “[a]s a historical matter . . . subjected to discrimination,” Bowen v. Gilliard, 483 U.S. 587, 602

 60a
(1987); (2) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985);
(3) whether the class exhibits “obvious, immutable, or
distinguishing characteristics that define [it] as a discrete group,” Bowen, 483 U.S. at 602; and (4) whether
the class is “a minority or politically powerless.” Id.;
see also Windsor v. U.S., 699 F.3d 169, 181 (2d Cir.
2012), aff ’d on other grounds, 570 U.S. 744 (2013).
While “[t]he presence of any of the factors is a signal
that the particular classification is ‘more likely than
others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective,’ ” the first two factors alone may be dispositive.
Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d
968, 983 (N.D. Cal. 2012) (quoting Pyler v. Doe, 457 U.S.
202, 216 n.14 (1982)).
The Court considers each of these factors in turn:
i.

History of Discrimination

The history of discrimination and systemic oppression of transgender people in this country is long and
well-recognized. Transgender people have suffered
and continue to suffer endemic levels of physical and
sexual violence, harassment, and discrimination in
employment, education, housing, criminal justice, and
access to health care. (See Dkt. No. 169, Ex. A at
9-12.) According to a nationwide survey conducted by
the National Center for Transgender Equality in 2015,
48 percent of transgender respondents reported being
“denied equal treatment, verbally harassed, and/or physically attacked in the past year because of being transgender” and 47 percent reported being “sexually as-

 61a
saulted at some point in their lifetime.” (Id. at 10.)
Seventy-seven (77) percent report being “verbally
harassed, prohibited from dressing according to their
gender identity, or physically or sexually assaulted” in
grades K-12. (Id. at 10-11.) Thirty (30) percent reported being “fired, denied a promotion, or experiencing some other form of mistreatment in the workplace
related to their gender identity or expression, such as
being harassed or attacked.” (Id. at 11.) Finally, “it
is generally estimated that transgender women face
4.3 times the risk of becoming homicide victims than the
general population.” (Id. at 10 (emphasis in original).)
ii.

Contributions to Society

Discrimination against transgender people clearly is
unrelated to their ability to perform and contribute to
society. See Doe 1, 275 F. Supp. 3d at 209 (noting the
absence of any “argument or evidence suggesting that
being transgender in any way limits one’s ability to
contribute to society”); Adkins v. City of New York,
143 F. Supp. 3d 134, 139 (S.D.N.Y. 2015) (noting the
absence of “any data or argument suggesting that a
transgender person, simply by virtue of transgender
status, is any less productive than any other member of
society”). Indeed, the Individual Plaintiffs in this case
contribute not only to society as a whole, but to the
military specifically. For years, they have risked
their lives serving in combat and non-combat roles,
fighting terrorism around the world, and working to
secure the safety and security of our forces overseas.
(See, e.g., Dkt. No. 133 at ¶¶ 7-9; Dkt. No. 134 at ¶¶ 5-6;
Dkt. No. 135 at ¶¶ 6-7; Dkt. No. 136 at ¶¶ 6-7.) Their
exemplary service has been recognized by the military
itself, with many having received awards and distinc-

 62a
tions. (See Dkt. No. 131 at ¶ 15; Dkt. No. 133 at ¶ 12;
Dkt. No. 134 at ¶ 7.)
iii. Immutability

Transgender people clearly have “immutable” and
“distinguishing characteristics that define them as a
discrete group.” Bd. of Educ. of the Highland Local
Sch. Dist. v. U.S. Dep’t of Educ., 208 F. Supp. 3d 850,
874 (S.D Ohio 2016) (quoting Lyng v. Castillo, 477 U.S.
635, 638 (1986)). Experts agree that gender identity
has a “biological component,” and there is a “medical
consensus that gender identity is deep-seated, set early
in life, and impervious to external influences.” (Dkt.
No. 143 at ¶¶ 21-22 (emphasis added).) In other contexts, the Ninth Circuit has held that “[s]exual orientation and sexual identity” are “immutable” and are “so
fundamental to one’s identity that a person should not
be required to abandon them.” Hernandez-Montiel v.
I.N.S., 225 F.3d 1087, 1093 (9th Cir. 2000), overruled on
other grounds, 409 F.3d 1177 (9th Cir. 2005).
iv. Political Power

Despite increased visibility in recent years, transgender people as a group lack the relative political
power to protect themselves from wrongful discrimination. While the exact number is unknown, transgender people make up less than 1 percent of the nation’s
adult population. (Dkt. No. 143, Ex. B at 3 (estimating 0.3 percent)); see also Doe 1, 275 F. Supp. 3d at 209
(estimating 0.6 percent). Fewer than half of the
states have laws that explicitly prohibit discrimination
against transgender people. (Dkt. No. 169, Ex. A at 12.)
Further, recent actions by President Trump’s administration have removed many of the limited protections

 63a
afforded by federal law. (Id. at 12-13.) Finally, openly
transgender people are vastly underrepresented in and
have been “systematically excluded from the most important institutions of self-governance.” SmithKline
Beecham Corp. v. Abbott Labs., 740 F.3d 471, 484
(9th Cir. 2014). There are no openly transgender members of the United States Congress or the federal judiciary, and only one out of more than 7,000 state legislators is openly transgender. (Dkt. No. 169, Ex. A at
14); see also Adkins, 143 F. Supp. 3d at 140.
Recognizing these factors, courts have consistently
found that transgender people constitute, at minimum,
a quasi-suspect class.8 See, e.g., Doe 1, 275 F. Supp.
3d at 208-10; Stone, 280 F. Supp. 3d at 768; Adkins,
143 F. Supp. 3d at 139-40; Highland, 208 F. Supp. 3d at
873-74; Norsworthy v. Beard, 87 F. Supp. 3d 1104, 1119
(N.D. Cal. 2015). Today, the Court concludes that transgender people constitute a suspect class. Transgender
people have long been forced to live in silence, or to come
out and face the threat of overwhelming discrimination.
The Ninth Circuit applies heightened scrutiny to equal protection claims involving discrimination based on sexual orientation.
SmithKline, 740 F.3d at 484; Latta v. Otter, 771 F.3d 456, 468
(9th Cir. 2014). This reasoning further supports the Court’s
conclusion as to the applicable level of scrutiny, as discrimination
based on transgender status burdens a group that has in many
ways “experienced even greater levels of societal discrimination
and marginalization.” Norsworthy, 87 F. Supp. 3d at 1119 n.8; see
also Adkins, 143 F. Supp. 3d at 140 (“Particularly in comparison to
gay people . . . transgender people lack the political strength to
protect themselves. . . . [A]lthough there are and were gay
members of the United States Congress . . . as well as gay
federal judges, there is no indication that there have ever been any
transgender members of the United States Congress or federal
judiciary.”)
8

 64a
Therefore, the Court GRANTS summary judgment
in Plaintiffs’ and Washington’s favor as to the applicable level of scrutiny. The Ban specifically targets one
of the most vulnerable groups in our society, and must
satisfy strict scrutiny if it is to survive.
2. Level of Deference

Defendants claim that “considerable deference is
owed to the President and the DoD in making military
personnel decisions,” and that for this reason, Plaintiffs’ and Washington’s constitutional claims necessarily
fail. (Dkt. No. 194 at 16.)
The Court previously found that the Ban—as set
forth in President Trump’s Twitter Announcement and
2017 Memorandum—was not owed deference, as it was
not supported by “any evidence of considered reason or
deliberation.” (Dkt. No. 103 at 17-18.) Indeed, at
the time he announced the Ban, “all of the reasons
proffered by the President for excluding transgender
individuals from the military were not merely unsupported, but were actually contradicted by the studies,
conclusions, and judgment of the military itself.” Doe
1, 275 F. Supp. 3d at 212 (emphasis in original); see also
Rostker v. Goldberg, 453 U.S. 57, 67-72 (1981) (concluding that deference is owed to well-reasoned policies
that are not adopted “unthinkingly” or “reflexively and
not for any considered reason”); Goldman v. Weinberger, 475 U.S. 503, 507-08 (1986) (concluding that
deference is owed where a policy results from the “professional judgment of military authorities concerning
the relative importance of a particular military interest”); compare Owens v. Brown, 455 F. Supp. 291, 305
(D.D.C. 1978) (concluding that deference is not owed

 65a
where a policy is adopted “casually, over the military’s
objections and without significant deliberation”).
Now that the specifics of the Ban have been further
defined in the 2018 Memorandum and the Implementation Plan, whether the Court owes deference to the Ban
presents a more complicated question. Any justification for the Ban must be “genuine, not hypothesized or
invented post hoc in response to litigation.” United
States v. Virginia, 518 U.S. 515, 533 (1996). However,
the Court is mindful that “complex[,] subtle, and professional decisions as to the composition . . . and
control of a military force are essentially professional
military judgments,” reserved for the Legislative and
Executive Branches. Gilligan v. Morgan, 413 U.S. 1,
10 (1973). The Court’s entry of a preliminary injunction was not intended to prevent the military from continuing to review the implications of open service by
transgender people, nor to preclude it from ever modifying the Carter Policy.
Defendants claim that the military has done just
that, and that the Ban—as set forth in the 2018 Memorandum and the Implementation Plan—is now the product of a deliberative review. In particular, Defendants claim the Ban has been subjected to “an exhaustive study” and is consistent with the recommendations
of a “Panel of Experts” convened by Secretary Mattis
to study “military service by transgender individuals,
focusing on military readiness, lethality, and unit cohesion,” and tasked with “conduct[ing] an independent
multi-disciplinary review and study of relevant data
and information pertaining to transgender Service
members.” (See Dkt. No. 226 at 9-10; Dkt. No. 224,
Ex. 2 at 19.) Defendants claim that the Panel was com-

 66a
prised of senior military leaders who received “support
from medical and personnel experts from across the
[DoD] and [DHS],” and considered “input from transgender Service members, commanders of transgender
Service members, military medical professionals, and
civilian medical professionals with experience in the
care and treatment of individuals with gender dysphoria.” (Dkt. No. 224, Ex. 2 at 20.) “Unlike previous reviews on military service by transgender individuals,”
Defendants claim that the Panel’s analysis was “informed by the [DoD]’s own data obtained since the new
policy began to take effect last year.” (Dkt. No. 224,
Ex. 1 at 3.) The Panel’s findings are set forth in a
44-page “Report and Recommendations on Military
Service by Transgender Persons,” which concludes
that “the realities associated with service by transgender individuals are far more complicated than the
prior administration or RAND had assumed,” and that
because gender transition “would impede readiness,
limit deployability, and burden the military with additional costs . . . the risks associated with maintaining the Carter [P]olicy . . . counsel in favor of ”
the Ban. (Dkt. No. 224, Ex. 2 at 46.)
Having carefully considered the Implementation
Plan—including the content of the DoD’s “Report and
Recommendations on Military Service by Transgender
Persons”—the Court concludes that whether the Ban is
entitled to deference raises an unresolved question of
fact. The Implementation Plan was not disclosed until
March 29, 2018. (See Dkt. No. 224, Exs. 1, 2.) As
Defendants’ claims and evidence regarding their justifications for the Ban were presented to the Court only
recently, Plaintiffs and Washington have not yet had an
opportunity to test or respond to these claims. On the

 67a
present record, the Court cannot determine whether
the DoD’s deliberative process—including the timing
and thoroughness of its study and the soundness of the
medical and other evidence it relied upon—is of the
type to which Courts typically should defer. See Fed.
R. Civ. P. 56(e)(1).
Accordingly, the Court DENIES summary judgment as to the level of deference due. The Court notes
that, even in the event it were to conclude that deference is owed, it would not be rendered powerless to address Plaintiffs’ and Washington’s constitutional claims,
as Defendants seem to suggest. “ ‘The military has
not been exempted from constitutional provisions that
protect the rights of individuals’ and, indeed, ‘[i]t is
precisely the role of the courts to determine whether
those rights have been violated.’ ” Doe 1, 275 F. Supp.
3d at 210 (quoting Emory v. Sec’y of Navy, 819 F.2d
291, 294 (D.C. Cir. 1987)); Chappell v. Wallace, 462 U.S.
296, 304 (1983) (“This Court has never held, nor do we
now hold, that military personnel are barred from all
redress in civilian courts for constitutional wrongs
suffered in the course of military service.”); Rostker,
453 U.S. at 70 (“[D]eference does not mean abdication.”).
Indeed, the Court notes that Defendants’ claimed justifications for the Ban—to promote “military lethality
and readiness” and avoid “disrupt[ing] unit cohesion, or
tax[ing] military resources”—are strikingly similar to
justifications offered in the past to support the military’s exclusion and segregation of African American
service members, its “Don’t Ask, Don’t Tell” policy,
and its policy preventing women from serving in combat roles. (Dkt. No. 224, Ex. 1 at 2-4; see also Dkt.
No. 163, Ex. 1 at 8-16.)

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3. Equal Protection, Due Process, and First
Amendment Claims

A policy will survive strict scrutiny only where it is
motivated by a “compelling state interest” and “the
means chosen ‘fit’ the compelling goal so closely that
there is little or no possibility that the motive for the
classification was illegitimate . . . prejudice or stereotype.” Grutter v. Bollinger, 539 U.S. 306, 333 (2003)
(citation omitted). In making this determination, the
Court must carefully evaluate “the importance and the
sincerity of the reasons advanced” by the government
for the use of a particular classification in a particular
context. Id. at 327. Whether Defendants have satisfied their burden of showing that the Ban is constitutionally adequate (i.e., that it was sincerely motivated
by compelling state interests, rather than by prejudice
or stereotype) necessarily turns on facts related to
Defendants’ deliberative process. As discussed previously, these facts are not yet before the Court. (See
supra, § II.C.2.) Further, Defendants’ responsive briefing addresses only the constitutionality of the Interim
Guidance, a document that has never been, and is not
now, the applicable policy before the Court. (See Dkt.
No. 194 at 19-24.)
For the same reasons it cannot grant summary judgment as to the level of deference due at this stage, the
Court cannot reach the merits of the alleged constitutional violations. Accordingly, the Court DENIES summary judgment as to Plaintiffs’ and Washington’s equal
protection, due process, and First Amendment claims.

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IV. Defendants’ Motion for Partial Summary Judgment

Defendants contend that the Court is without jurisdiction to impose injunctive or declaratory relief against
President Trump in his official capacity, and move for
partial summary judgment on all claims against him individually. (Dkt. No. 194 at 25-27.) Plaintiffs and
Washington do not oppose summary judgment as to injunctive relief, but respond that declaratory relief against
President Trump is proper. (Dkt. No. 207 at 8-10; Dkt.
No. 209 at 6-8.)
The Court is aware of no case holding that the President is immune from declaratory relief—Rather, the
Supreme Court has explicitly affirmed the entry of
such relief. See Clinton v. City of New York, 524 U.S.
417, 425 n.9 (1998) (affirming entry of declaratory judgment against President Clinton stating that Line Item
Veto Act was unconstitutional); NTEU v. Nixon, 492 F.2d
587, 609 (1974) (“[N]o immunity established under any
case known to this Court bars every suit against the
president for injunctive, declaratory or mandamus relief.”); see also Hawaii v. Trump, 859 F.3d 741, 788
(9th Cir. 2017) (vacating injunctive relief against President Trump, but not dismissing him in suit for declaratory relief ), vacated as moot, 874 F.3d 1112 (9th Cir.
2017).
The Court concludes that, not only does it have jurisdiction to issue declaratory relief against the President,
but that this case presents a “most appropriate instance”
for such relief. See NTEU, 492 F.2d at 616. The Ban
was announced by President Trump (@realDonaldTrump)
on Twitter, and was memorialized in the 2017 and 2018
Presidential Memorandums, which were each signed
by President Trump. (Dkt. No. 149, Exs. 1, 2; Dkt.

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No. 224, Ex. 3.) While President Trump’s Twitter
Announcement suggests he authorized the Ban “[a]fter
consultation with [his] Generals and military experts”
(Dkt. No. 149, Ex. 1), Defendants to date have failed to
identify even one General or military expert he consulted, despite having been ordered to do so repeatedly.
(See Dkt. Nos. 204, 210, 211.) Indeed, the only evidence concerning the lead-up to his Twitter Announcement reveals that military officials were entirely unaware of the Ban, and that the abrupt change in policy
was “unexpected.” (See Dkt. No. 208, Ex. 1 at 9
(General Joseph F. Dunford, Chairman of the Joint
Chiefs of Staff stating on July 27, 2017 “Chiefs, I know
yesterday’s announcement was unexpected . . . ”);
Dkt. No. 152, Ex. A at 11-12 (“The Joint Chiefs of Staff
were not consulted at all on the decision . . . The
decision was announced so abruptly that White House
and Pentagon officials were unable to explain the most
basic of details about how it would be carried out.”).)
Even Secretary Mattis was given only one day’s notice
before President Trump’s Twitter Announcement. (Id.;
Dkt. No. 163, Ex. 1 at 26.) As no other persons have
ever been identified by Defendants—despite repeated
Court orders to do so—the Court is led to conclude that
the Ban was devised by the President, and the President alone.
Therefore, the Court GRANTS Defendants’ motion
for partial summary judgment with regard to injunctive relief and DENIES the motion with regard to
declaratory relief.

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CONCLUSION

The Court concludes that all Plaintiffs and Washington have standing; that the 2018 Memorandum and
Implementation Plan do not moot their claims; and that
transgender people constitute a suspect class necessitating a strict scrutiny standard of review. The Court
concludes that questions of fact remain as to whether,
and to what extent, deference is owed to the Ban, and
whether the Ban, when held to strict scrutiny, survives
constitutional review.
Accordingly, the Court rules as follows:
1. The Court GRANTS Plaintiffs’ and Washington’s motions for summary judgment with respect to
the applicable level of scrutiny, which is strict scrutiny;
2. The Court DENIES Plaintiffs’ and Washington’s motions for summary judgment with respect to
the applicable level of deference;
3. The Court DENIES Plaintiffs’ and Washington’s motions for summary judgment with respect to
violations of equal protection, due process, and the
First Amendment;
4. The Court GRANTS Defendants’ cross-motion
for summary judgment with respect to injunctive relief
against President Trump and DENIES the cross-motion
with respect to declarative relief against President Trump.
5. The preliminary injunction previously entered
otherwise remains in full force and effect. Defendants
(with the exception of President Trump), their officers,
agents, servants, employees, and attorneys, and any
other person or entity subject to their control or acting
directly or indirectly in concert or participation with

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Defendants are enjoined from taking any action relative to transgender people that is inconsistent with the
status quo that existed prior to President Trump’s July
26, 2017 announcement.
6. The Court’s ruling today eliminates the need
for Plaintiffs and Washington to respond to Defendants’ Motion to Dissolve the Preliminary Injunction
(Dkt. No. 223), which is hereby STRICKEN.
7. The parties are directed to proceed with discovery and prepare for trial on the issues of whether, and
to what extent, deference is owed to the Ban and
whether the Ban violates equal protection, substantive
due process, and the First Amendment.
The clerk is ordered to provide copies of this order
to all counsel.
Dated Apr. 13, 2018.
/s/ MARSHA J. PECHMAN
MARSHA J. PECHMAN
United States District Judge

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APPENDIX D
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

No. 2:17-cv-1297-MJP
RYAN KARNOSKI, ET AL., PLAINTIFFS
v.
DONALD J. TRUMP, ET AL., DEFENDANTS
Filed: Apr. 30, 2018
DEFENDANTS’ NOTICE OF APPEAL—
PRELIMINARY INJUNCTION APPEAL

Notice is hereby given that all Defendants appeal to
the United States Court of Appeals for the Ninth Circuit from this Court’s Order of April 13, 2018, ECF No.
233, 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, and striking Defendants’ motion to dissolve the preliminary injunction.
Date: Apr. 30, 2018
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
Civil Division

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BRETT A. SHUMATE
Deputy Assistant Attorney General
JOHN R. GRIFFITHS
Branch Director
ANTHONY J. COPPOLINO
Deputy Director
/s/

RYAN B. PARKER
RYAN B. PARKER
ANDREW E. CARMICHAEL
United States Department of Justice
Civil Division, Federal Programs Branch
Telephone: (202) 514-4336
Email: ryan.parker@usdoj.gov
Counsel for Defendants

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APPENDIX E
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

Case No. C17-1297-MJP
RYAN KARNOSKI, PLAINTIFF
v.
DONALD J. TRUMP, DEFENDANT
Filed: June 15, 2018
ORDER DENYING MOTION TO STAY
PRELIMINARY INJUNCTION

THIS MATTER comes before the Court on Defendants’ Motion to Stay the Preliminary Injunction Pending Appeal. (Dkt. No. 238.) Having reviewed the Motion, the Responses (Dkt. Nos. 250, 257), the Reply (Dkt.
No. 261), the Jurisdictional Briefing (Dkt. Nos. 275,
276, 277) and all related papers, the Court DENIES
the Motion.
Background
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” of a policy excluding transgender people from

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serving openly in the military (the “Ban”).
103 at 23.)

(Dkt. No.

On March 23, 2018, Defendants released an Implementation Plan and a 2018 Memorandum which purported to “revoke” the 2017 Memorandum and replace
it with a “new policy” that does not mandate a “categorical prohibition on transgender service members,”
but rather targets those who have been diagnosed with
gender dysphoria. (Dkt. No. 226 at 3-7; see also Dkt.
No. 224, Exs. 1, 3.)
On April 13, 2018, the Court granted partial summary judgment for Plaintiffs and the State of Washington, and ordered the preliminary injunction to remain in effect. (See Dkt. No. 233.) In so doing, the
Court rejected Defendants’ claim that the subsequent
Implementation Plan and 2018 Memorandum represented a “new policy.” (Id. at 12.) Instead, the Court
found that the Implementation Plan and 2018 Memorandum “threaten the very same violations that caused
it and others to enjoin the Ban in the first place.” (Id.)
On April 30, 2018, Defendants filed a notice of appeal with the Ninth Circuit. (See Dkt. No. 236.) On
the same day, Defendants filed this motion requesting
an expedited ruling no later than May 4, 2018. (Dkt.
No. 238.) After the Court declined to issue an expedited ruling (Dkt. No. 240), Defendants filed a separate
Motion for a Stay Pending Appeal in the Ninth Circuit.
See Karnoski v. Trump, No. 18-35347, Dkt. No. 3
(9th Cir. May 4, 2018). The Ninth Circuit has yet to
issue a ruling.

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Discussion
I.

Jurisdiction

While the filing of a notice of appeal generally divests
a district court of jurisdiction, Federal Rule of Civil Procedure 62(c) allows the Court “to issue further orders
with respect to an injunction, even pending appeal, in
order to preserve the status quo or ensure compliance
with its earlier orders.” Doe v. Trump, 284 F. Supp. 3d
1172 (W.D. Wash. 2018) (citing Nat. Res. Def. Council,
Inc. v. Southwest Marine, Inc., 242 F.3d 1163, 1166
(9th Cir. 2001)). The Court’s exercise of jurisdiction
may not “adjudicate anew the merits of the case” nor
“materially alter the status of the case on appeal.”
Southwest Marine, 242 F.3d at 1166.
II. Motion to Stay

A stay pending appeal “is an intrusion into the ordinary processes of administration and judicial review.”
Nken v. Holder, 556 U.S. 418, 427 (2009) (internal quotation marks and citation omitted). In determining
whether to grant a stay, the Court considers: (1) whether Defendants have made a strong showing that they are
likely to succeed on the merits; (2) whether Defendants
will be irreparably injured absent a stay; (3) whether a
stay will substantially injure Plaintiffs and Washington;
and (4) whether the public interest supports a stay.
Id. at 434.
A.

Likelihood of Success on the Merits

The Court finds that Defendants have not made a
“strong showing” that they are likely to succeed on the
merits of their appeal.

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First, each of the arguments raised by Defendants
already has been considered and rejected by the Court,
and Defendants have done nothing to remedy the constitutional violations that supported entry of a preliminary injunction in the first instance. Instead, Defendants attempt, once again, to characterize the Implementation Plan and 2018 Memorandum as a “new and
different” policy, distinct from the one this Court and
others enjoined. (See Dkt. No. 261 at 3.) The Court
was not persuaded by this argument before, and it is
not persuaded now.
Second, while Defendants claim—without explanation
—that “the Ninth Circuit and/or this Court ultimately
. . . are highly likely to conclude that significant
deference is appropriate” (Dkt. No. 238 at 5), whether
any deference is due remains unresolved. (See Dkt.
No. 233 at 24-27.) Defendants bear the burden of providing a “genuine” justification for the Ban. To withstand judicial scrutiny, that justification must “describe
actual state purposes, not rationalizations” and must
not be “hypothesized or invented post hoc in response
to litigation.” United States v. Virginia, 518 U.S. 515,
533, 535-36 (1996); see also Sessions v. Morales-Santana,
137 S. Ct. 1678, 1696-97 (2012). To date, Defendants
have steadfastly refused to put before the Court evidence of any justification that predates this litigation.
(See Dkt. No. 211.)
Finally, the Court notes that the Ban currently is
enjoined by four separate courts. See Doe 1 v. Trump,
275 F. Supp. 3d 167 (D.D.C. 2017); Stone v. Trump,
280 F. Supp. 3d 747 (D. Md. 2017); Stockman v. Trump,
No. 17-cv-1799-JGB-KK, Dkt. No. 79 (C.D. Cal. Dec.
22, 2017). As a practical matter, Defendants face the

 79a
challenge of convincing each of these courts to lift their
injunctions before they may implement the Ban.
B.

Likelihood of Irreparable Harm

The Court finds that Defendants have not shown
that they will be irreparably harmed without a stay.
Defendants contend that unless stayed, the injunction
“will irreparably harm the government (and the public)
by compelling the military to adhere to a policy it has
concluded poses substantial risks.” (Dkt. No. 238 at
2.) In particular, Defendants contend that allowing
transgender people to serve openly—as they have for
nearly two years—threatens to “undermine readiness,
disrupt unit cohesion, and impose an unreasonable
burden on the military that is not conducive to military
effectiveness and lethality.” (Id. at 3.)
Since the preliminary injunction has been in effect,
the Senate Committee on Armed Services has heard
testimony from high-ranking military officials on the
effect of open service by transgender people. Army
Chief of Staff General Mark Milley testified that he
“monitor[s] very closely” the situation and had received
“precisely zero” reports of problems related to unit
cohesion, discipline, and morale. (Dkt. No. 255, Ex. 14
at 6.) Chief of Naval Operations Admiral John Richardson testified that he, too, had received no negative
reports, and that in his experience, “[i]t’s steady as she
goes.” (Dkt. No. 255, Ex. 15.) As this testimony makes
clear, Defendants’ hypothetical and conclusory claims
are unsupported by evidence and do not establish a
likelihood of irreparable harm.

 80a
C.

Injury to Plaintiffs and Washington and Impact
on Public Interest

Having found that Defendants have not established
either a likelihood of success on the merits or a likelihood of irreparable harm absent a stay, the Court need
not reach these remaining factors. See Washington v.
Trump, 847 F.3d at 1164. However, the Court also
finds that these factors do not support entry of a stay.
The Court already found that Plaintiffs and Washington are likely to suffer irreparable injury absent a
preliminary injunction, and for the same reasons, will
be injured by a stay. (See Dkt. No. 103 at 20-21.)
Further, maintaining the injunction pending appeal advances the public’s interest in a strong national defense, as it allows skilled and qualified service members to continue to serve their country.
D.

Scope of the Preliminary Injunction

The Court declines to stay the preliminary injunction insofar as it grants nationwide relief. While Defendants contend that the injunction should be limited
to the nine Individual Plaintiffs (Dkt. No. 238 at 2), the
Court disagrees. The scope of injunctive relief is to
be “dictated by the extent of the violation established.”
Califano v. Yamasaki, 442 U.S. 682, 702 (1979). The
Ban, like the Constitution, would apply nationwide.
Accordingly, a nationwide injunction is appropriate.
Conclusion

Because Defendants have not established that a stay
of the preliminary injunction is appropriate, the Court
DENIES Defendants’ Motion. The status quo shall
remain “steady as she goes,” and the preliminary in-

 81a
junction shall remain in full force and effect nationwide.
The clerk is ordered to provide copies of this order
to all counsel.
Dated June 15, 2018.
/s/

MARSHA J. PECHMAN
THE HONORABLE MARSHA J. PECHMAN
United States Senior District Court Judge

 82a
APPENDIX F
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 18-35347
D.C. No. 2:17-cv-01297-MJP
Western District of Washington, Seattle
RYAN KARNOSKI, ET AL.; PLAINTIFFS-APPELLEES,
STATE OF WASHINGTON, ATTORNEY GENERAL’S
OFFICE CIVIL RIGHTS UNIT,
INTERVENOR -PLAINTIFF -APPELLEE
v.
DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY
AS PRESIDENT OF THE UNITED STATES; ET. AL.,
DEFENDANTS-APPELLANTS
Filed: July 18, 2018
ORDER

Before: TASHIMA, SILVERMAN, and GRABER, Circuit
Judges.
On December 11, 2017, the district court granted
appellees’ motion for a preliminary injunction. On
March 29, 2018, appellants moved to dissolve the preliminary injunction in light of the March 23, 2018 presidential memorandum and proposed Department of Defense policy. On April 13, 2018, the district court declined to dissolve the preliminary injunction and struck

 83a
appellants’ motion.
the instant appeal.

On April 30, 2018, appellants’ filed

Before the court is appellants’ motion for a stay of
the December 11, 2017 preliminary injunction pending
this appeal of the April 13, 2018 order striking appellant’s motion to dissolve the preliminary injunction.
Appellant’s motion in this court requests neither emergency nor expedited treatment.
A stay pending appeal “is an intrusion into the ordinary processes of administration and judicial review.”
Nken v. Holder, 556 U.S. 418, 427 (2009) (internal quotation marks and citation omitted).
The district court’s December 11, 2017 preliminary
injunction preserves the status quo, allowing transgender service members to serve in the military in
their preferred gender and receive transition-related
care. Appellants ask this court to stay the preliminary injunction, pending the outcome of this appeal, in
order to implement a new policy. Accordingly, a stay
of the preliminary injunction would upend, rather than
preserve, the status quo.
Therefore, we deny the motion for a stay of the December 11, 2017 preliminary injunction (Docket Entry
No. 3).
Briefing is complete.

 84a
APPENDIX G
SECRETARY OF DEFENSE
1000 DEFENSE PENTAGON
WASHINGTON, DC 20301-1000

[JUL 28 2015]
MEMORANDUM FOR SECRETARIES OF THE
MILITARY DEPARTMENTS
SUBJECT: Transgender Service Members
Effective as of July 13, 2015, no Service member
shall be involuntarily separated or denied reenlistment
or continuation of active or reserve service on the basis
of their gender identity, without the personal approval of
the Under Secretary of Defense for Personnel and
Readiness. This approval authority may not be further
delegated.
The Under Secretary of Defense for Personnel and
Readiness will chair a working group composed of senior representatives from each of the Military Departments, Joint Staff, and relevant components from the
Office of the Secretary of Defense to formulate policy
options for the DoD regarding the military service of
transgender Service members. The working group
will start with the presumption that transgender persons can serve openly without adverse impact on military
effectiveness and readiness, unless and except where
objective, practical impediments are identified, and shall
present its recommendations to me within 180 days.
Pending the issuance of DoD-wide policy following the
submission of the working group’s report, any interim
guidance issued by the Military Departments will be

 85a
coordinated with, and subject to the prior personal
approval of, the Under Secretary of Defense for Personnel and Readiness. If questions relating to the
service of transgender members arise, the Military Departments should address them to the Under Secretary
of Defense for Personnel and Readiness.
/s/
cc:
DepSecDef
CJCS
USDs
DoD, GC
ASD(LA)
ATSD(PA)

ASH CARTER
CARTER

 A SH

 86a
APPENDIX H
SECRETARY OF DEFENSE
1000 DEFENSE PENTAGON
WASHINGTON, DC 20301-1000

[JUN 30 2016]
MEMORANDUM FOR SECRETARIES OF THE
MILITARY DEPARTMENTS
CHAIRMAN OF THE JOINT CHIEFS OF
STAFF
UNDER SECRETARIES OF
DEFENSE
DEPUTY CHIEF MANAGEMENT
OFFICER
CHIEF OF THE NATIONAL GUARD
BUREAU
GENERAL COUNSEL OF THE
DEPARTMENT OF DEFENSE
DIRECTOR, COST ASSESSMENT AND
PROGRAM EVALUATION
INSPECTOR GENERAL OF THE
DEPARTMENT OF DEFENSE
DIRECTOR, OPERATIONAL TEST AND
EVALUATION
DEPARTMENT OF DEFENSE CHIEF
INFORMATION OFFICER
ASSISTANT SECRETARY OF DEFENSE
FOR LEGISLATIVE AFFAIRS
ASSISTANT TO THE SECRETARY OF
DEFENSE FOR PUBLIC AFFAIRS
DIRECTOR, NET ASSESSMENT

 87a
DIRECTORS OF THE DEFENSE
AGENCIES
DIRECTORS OF THE DOD FIELD
ACTIVITIES
SUBJECT: Directive-type Memorandum (DTM) 16-005,
“Military Service of Transgender Service
Members”
References: DoD Directive 1020.02E, “Diversity Management and Equal Opportunity in the
DoD,” June 8, 2015
DoD Directive 1350.2, “Department of Defense Military Equal Opportunity (MEO)
Program,” August 18, 1995
DoD Instruction 6130.03, “Medical Standards for Appointment, Enlistment, or Induction in the Military Services,” April 28,
2010, as amended
Purpose.

This DTM:

•

Establishes policy, assigns responsibilities, and prescribes procedures for the
standards for retention, accession, separation, in-service transition, and medical
coverage for transgender personnel serving in the Military Services.

•

Except as otherwise noted, this DTM will
take effect immediately. It will be converted to a new DoDI. This DTM will
expire effective June 30, 2017.

Applicability. This DTM applies to OSD, the Military
Departments (including the Coast Guard at all times, including when it is a Service in the Department of Home-

 88a
land Security by agreement with that Department), the
Office of the Chairman of the Joint Chiefs of Staff and the
Joint Staff, the Combatant Commands, the Office of the
Inspector General of the Department of Defense, the
Defense Agencies, the DoD Field Activities, and all other
organizational entities within the DoD.
Policy.

•

The defense of the Nation requires a
well-trained, all-volunteer force comprised of Active and Reserve Component
Service members ready to deploy worldwide on combat and operational missions.

•

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.

•

These policies and procedures are premised on my conclusion that open service
by transgender Service members while
being subject to the same standards and
procedures as other members with regard to their medical fitness for duty,
physical fitness, uniform and grooming,
deployability, and retention, is consistent
with military readiness and with strength
through diversity.

 89a
Responsibilities

•

•

The Secretaries of the Military Departments will:
o

Take immediate action to identify all
DoD, Military Department, and Service issuances, the content of which
relate to, or may be affected by, the
open service of transgender Service
members.

o

Draft revisions to the issuances
identified, and, as necessary and appropriate, draft new issuances, consistent with the policies and procedures in this memorandum.

o

Submit to the Under Secretary of
Defense for Personnel and Readiness (USD(P&R)) the text of any
proposed revisions to existing Military Department and Service regulations, policies, and guidance, and
of any proposed new issuance, no
later than 30 days in advance of the
proposed publication date of each.

The USD(P&R) will:
o

Take immediate action to identify
all DoD, Military Department, and
Service issuances, the content of
which relate to, or may be affected
by, the open service of transgender
Service members.

 90a
o

Procedures.

Draft revisions to the issuances
identified in this memorandum
and, as necessary, and, as necessary and appropriate, draft new issuances, consistent with the policies and procedures in this memorandum.
See Attachment.

Releasability. Cleared for public release. This DTM
is available on the DoD Issuances Website at http://www.
dtic.mil/whs/directives.
/s/ ASH CARTER
 A SH CARTER
Attachment:
As stated
cc:
Secretary of Homeland Security
Commandant, United States Coast Guard

 91a
ATTACHMENT
PROCEDURES
1.

SEPARATION AND RETENTION

a. Effective 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.
b. Transgender Service members will be subject
to the same standards as any other Service member of
the same gender; they may be separated, discharged,
or denied reenlistment or continuation of service under
existing processes and basis, but not due solely to their
gender identity or an expressed intent to transition
genders.
c. A Service member whose ability to serve is adversely affected by a medical condition or medical
treatment related to their gender identity should be
treated, for purposes of separation and retention, in a
manner consistent with a Service member whose ability
to serve is similarly affected for reasons unrelated to
gender identity or gender transition.
2.

ACCESSIONS

a. Medical standards for accession into the Military Services help to ensure that those entering service
are free of medical conditions or physical defects that
may require excessive time lost from duty. Not later
than July 1, 2017, the USD(P&R) will update DoD Instruction 6130.03 to reflect the following policies and
procedures:

 92a
(1)

A history of gender dysphoria is disqualifying, unless, as certified by a licensed medical provider,
the applicant has been stable without clinically significant distress or impairment in social, occupational, or
other important areas of functioning for 18 months.
(2) A history of medical treatment associated
with gender transition is disqualifying, unless, as certified by a licensed medical provider:
(a) the applicant has completed all medical
treatment associated with the applicant’s gender transition; and
(b) the applicant has been stable in the preferred gender for 18 months; and
(c) If the applicant is presently receiving
cross-sex hormone therapy post-gender transition, the
individual has been stable on such hormones for
18 months.
(3) A history of sex reassignment or genital reconstruction surgery is disqualifying, unless, as certified by a licensed medical provider:
(a) a period of 18 months has elapsed since
the date of the most recent of any such surgery; and
(b) no functional limitations or complications persist, nor is any additional surgery required.
b. The Secretaries of the Military Departments
and the Commandant, United States Coast Guard, may
waive or reduce the 18-month periods, in whole or in
part, in individual cases for applicable reasons.
c. The standards for accession described in this
memorandum will be reviewed no later than 24 months

 93a
from the effective date of this memorandum and may
be maintained or changed, as appropriate, to reflect applicable medical standards and clinical practice guidelines, ensure consistency with military readiness, and
promote effectiveness in the recruiting and retention
policies and procedures of the Armed Forces.
3.

IN-SERVICE TRANSITION

a. Effective October 1, 2016, DoD will implement
a construct by which transgender Service members
may transition gender while serving, in accordance
with DoDI 1300.28, which I signed today.
b. Gender transition while serving in the military
presents unique challenges associated with addressing
the needs of the Service member in a manner consistent with military mission and readiness needs.
4. MEDICAL POLICY. Not later than October 1,
2016, the USD(P&R) will issue further guidance on the
provision of necessary medical care and treatment to
transgender Service members. Until the issuance of
such guidance, the Military Departments and Services
will handle requests from transgender Service members for particular medical care or to transition on a
case-by-case basis, following the spirit and intent of
this memorandum and DoDI 1300.28.
5.

EQUAL OPPORTUNITY

a. All Service members are entitled to equal opportunity in an environment free from sexual harassment and unlawful discrimination on the basis of race,
color, national origin, religion, sex, or sexual orientation. It is the Department’s position, consistent with
the U.S. Attorney General’s opinion, that discrimina-

 94a
tion based on gender identity is a form of sex discrimination.
b. The USD(P&R) will revise DoD Directives
(DoDDs) 1020.02E,” Diversity Management and Equal
Opportunity in the DoD,” and 1350.2, ”Department of
Defense Military Equal Opportunity (MEO) Program,”
to prohibit discrimination on the basis of gender identity and to incorporate such prohibitions in all aspects
of the DoD MEO program. The USD(P&R) will prescribe the period of time within which Military Department and Service issuances implementing the MEO
program must be conformed accordingly.
6.

EDUCATION AND TRAINING

a. The USD(P&R) will expeditiously develop and
promulgate education and training materials to provide
relevant, useful information for transgender Service
members, commanders, the force, and medical professionals regarding DoD policies and procedures on
transgender service. The USD(P&R) will disseminate
these training materials to all Military Departments
and the Coast Guard not later than October 1, 2016.
b. Not later than November 1, 2016, each Military
Department will issue implementing guidance and a
written force training and education plan. Such plan
will detail the Military Department’s plan and program
for training and educating its assigned force (to include
medical professionals), including the standards to which
such education and training will be conducted, and the
period of time within which it will be completed.

 95a
7.

IMPLEMENTATION AND TIMELINE

a. Not later than October 1, 2016, the USD(P&R)
will issue a Commander’s Training Handbook, medical
guidance, and guidance establishing procedures for
changing a Service member’s gender marker in DEERS.
b. In the period between the date of this memorandum and October 1, 2016, the Military Departments
and Services will address requests for gender transition from serving transgender Service members on a
case-by-case basis, following the spirit and intent of
this memorandum and DoDI 1300.28.

 96a
APPENDIX I
SECRETARY OF DEFENSE
1000 DEFENSE PENTAGON
WASHINGTON, DC 20301-1000

[JUN 30, 2017]
MEMORANDUM FOR SECRETARIES OF THE
MILITARY DEPARTMENTS CHAIRMAN OF
THE JOINT CHIEFS OF STAFF
SUBJECT:

Accession of Transgender Individuals
into the Military Services

Since becoming the Secretary of Defense, I have
emphasized that the Department of Defense must measure each policy decision against one critical standard:
will the decision affect the readiness and lethality of
our armed forces? Put another way, how will the
decision affect the ability of America’s military forces
to defend the Nation? It is against this standard that
I provide the following guidance on the way forward in
accessing transgender individuals into the military
Services.
Under existing DoD policy, such accessions were anticipated to begin on July 1, 2017. The Deputy Secretary directed the Services to assess their readiness to
begin accessions. Building upon that work and after
consulting with the Service Chiefs and Secretaries, I
have determined that it is necessary to defer the start
of accessions for six months. We will use this additional time to evaluate more carefully the impact of
such accessions on readiness and lethality. This review will include all relevant considerations.

 97a
My intent is to ensure that I personally have the
benefit of the views of the military leadership and of
the senior civilian officials who are now arriving in the
Department. This action in no way presupposes the
outcome of the review, nor does it change policies and
procedures currently in effect under DoD Instruction
1300.28, “In-Service Transition for Transgender Service Members.” I am confident we will continue to
treat all Service members with dignity and respect.
The Under Secretary of Defense for Personnel and
Readiness will lead this review and will report the
results to me not later than December 1, 2017.
/s/

JAMES N. MATTIS
JAMES N. MATTIS

 Donald J. Trumpa @realDonaldTrump - 4h 
and cannot be burdened with the tremendous medical costs and
disruption that transgender in the military would entail. Thank you

39K 11 25K 0 73K 8

Donald J. Trumpa @realDonaldTrump - 4h 
individuals to serve in any capacity in the U.S. Military. Our
military must be focused on decisive and 

T3 27K 07m 8

Donald J. Trump 0 @realDonaldTrump - 4h 
After consultation with my Generals and military experts, please be advised that
the United States Government will not accept or allow 

14K 1126K C) 66K 8

APPENDIX 

9821

99a
APPENDIX K
Federal Register /Vol. 82, No. 167/

Wednesday, Aug. 30, 2017/
Presidential Documents

   41319

Presidential Documents
Memorandum of Aug. 25, 2017
Military Service by Transgender Individuals
Memorandum for the Secretary of Defense [and] the
Secretary of Homeland Security

Policy. (a) 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 the United States military and
authorized the discharge of such individuals. Shortly
before President Obama left office, however, his Administration dismantled the Departments’ established
framework by permitting transgender individuals to
serve openly in the military, authorizing the use of the
Departments’ resources to fund sex-reassignment surgical procedures, and permitting accession of such individuals after July 1, 2017. The Secretary of Defense
and the Secretary of Homeland Security have since extended the deadline to alter the currently effective accession policy to January 1, 2018, while the Departments continue to study the issue.
Section 1.

In my judgment, the previous Administration failed to
identify a sufficient basis to conclude that terminating
the Departments’ longstanding policy and practice
would not hinder military effectiveness and lethality,

 100a
disrupt unit cohesion, or tax military resources, and
there remain meaningful concerns that further study is
needed to ensure that continued implementation of last
year’s policy change would not have those negative
effects.
(b) Accordingly, by the authority vested in me as
President and as Commander in Chief of the Armed
Forces of the United States under the Constitution and
the laws of the United States of America, including
Article II of the Constitution, I am directing the Secretary of Defense, and the Secretary of Homeland
Security with respect to the U.S. Coast Guard, to return
to the longstanding policy and practice on military service by transgender individuals that was in place prior
to June 2016 until such time as a sufficient basis exists
upon which to conclude that terminating that policy and
practice would not have the negative effects discussed
above. The Secretary of Defense, after consulting with
the Secretary of Homeland Security, may advise me at
any time, in writing, that a change to this policy is warranted.
Directives. The Secretary of Defense, and the
Secretary of Homeland Security with respect to the
U.S. Coast Guard, shall:
Sec. 2.

(a) maintain the currently effective policy regarding accession of transgender individuals into military
service beyond January 1, 2018, until such time as the
Secretary of Defense, after consulting with the Secretary of Homeland Security, provides a recommendation
to the contrary that I find convincing; and

 101a
(b) 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.
Effective Dates and Implementation. Section
2(a) of this memorandum shall take effect on January 1,
2018. Sections 1(b) and 2(b) of this memorandum shall
take effect on March 23, 2018. 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 memorandum and the specific directives set forth in section 2 of this memorandum.
The implementation plan shall adhere to the determinations of the Secretary of Defense, made in consultation with the Secretary of Homeland Security, as to
what steps are appropriate and consistent with military
effectiveness and lethality, budgetary constraints, and
applicable law. As part of the implementation plan, the
Secretary of Defense, in consultation with the Secretary
of Homeland Security, shall determine how to address
transgender individuals currently serving in the United
States military. Until the Secretary has made that
determination, no action may be taken against such
individuals under the policy set forth in section 1(b) of
this memorandum.
Sec. 3.

Sec. 4. Severability. If any provision of this memoran-

dum, or the application of any provision of this memorandum, is held to be invalid, the remainder of this memorandum and other dissimilar applications of the provision
shall not be affected.

 102a
Sec. 5. General Provisions. (a) Nothing in this memo-

randum shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive
department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of
Management and Budget relating to budgetary,
administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does
not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party
against the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any other
person.
(d) The Secretary of Defense is authorized and directed to publish this memorandum in the Federal
Register.
/s/

DONALD J. TRUMP
DONALD J. TRUMP

THE WHITE HOUSE,
Washington, Aug. 25, 2017
JT082PROD with FR-O0

 103a
APPENDIX L
SECRETARY OF DEFENSE
1000 DEFENSE PENTAGON
WASHINGTON, DC 20301-1000

[9/14/17]
MEMORANDUM FOR SECRETARIES OF THE
MILITARY DEPARTMENTS
CHAIRMAN OF THE JOINT CHIEFS OF
STAFF
UNDER SECRETARIES OF
DEFENSE
COMMANDANT, U.S. COAST GUARD
DEPUTY CHIEF MANAGEMENT
OFFICER
CHIEF, NATIONAL GUARD BUREAU
GENERAL COUNSEL OF THE
DEPARTMENT OF DEFENSE
DIRECTOR OF COST ASSESSMENT
AND PROGRAM EVALUATION
INSPECTOR GENERAL OF THE
DEPARTMENT OF DEFENSE
DIRECTOR OF OPERATIONAL TEST
AND EVALUATION
CHIEF INFORMATION OFFICER OF
THE DEPARTMENT OF DEFENSE
ASSISTANT SECRETARY OF DEFENSE
FOR LEGISLATIVE AFFAIRS
ASSISTANT TO THE SECRETARY OF
DEFENSE FOR PUBLIC AFFAIRS
DIRECTOR OF NET ASSESSMENT

 104a
DIRECTOR, STRATEGIC CAPABILITIES
OFFICE
DIRECTORS OF DEFENSE AGENCIES
DIRECTORS OF DOD FIELD
ACTIVITIES
SUBJECT: Terms of Reference—Implementation of
Presidential Memorandum on Military Service by Transgender Individuals
Reference:

Military Service by Transgender Individuals
—Interim Guidance

I direct the Deputy Secretary of Defense and the
Vice Chairman of the Joint Chiefs of Staff to lead the
Department of Defense (DoD) in developing an Implementation Plan on military service by transgender
individuals, to effect the policy and directives in Presidential Memorandum, Military Service by Transgender
Individuals, dated August 25, 2017 (“Presidential Memorandum”). The implementation plan will establish
the policy, standards and procedures for service by
transgender individuals in the military, consistent with
military readiness, lethality, deployability, budgetary
constraints, and applicable law.
The Deputy Secretary and the Vice Chairman, supported by a panel of experts drawn from DoD and the
Department of Homeland Security (DHS) (“Panel”),
shall propose for my consideration recommendations
supported by appropriate evidence and information,
not later than January 15, 2018. The Deputy Secretary and the Vice Chairman will be supported by the
[IMAGE OMITTED]

 105a
Panel, which will be comprised of the Military Department Under Secretaries, Service Vice Chiefs, and Service Senior Enlisted Advisors. The Deputy Secretary
and Vice Chairman shall designate personnel to support the Panel’s work to ensure Panel recommendations reflect senior civilian experience, combat experience, and expertise in military operational effectiveness. The Panel and designated support personnel
shall bring a comprehensive, holistic, and objective
approach to study military service by transgender individuals, focusing on military readiness, lethality, and
unit cohesion, with due regard for budgetary constraints and consistent with applicable law. The Panel
will be chaired by the Under Secretary of Defense for
Personnel and Readiness and will report to the Deputy
Secretary and the Vice Chairman at least every 30 days
and address, at a minimum, the following three areas:
Accessions: The Presidential Memorandum directs
DoD to maintain the policy currently in effect, which generally prohibits accession of transgender individuals into
military service. The Panel will recommend updated
accession policy guidelines to reflect currently accepted medical terminology.
Medical Care: The Presidential Memorandum halts the
use of DoD or DHS resources to fund sex-reassignment
surgical procedures for military personnel, effective
March 23, 2018, 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. The
implementation plan will enumerate the specific surgical procedures associated with sex reassignment treatment that shall be prohibited from DoD or DHS re-

 106a
sourcing unless necessary to protect the health of the
Service member.
Transgender Members Serving in the Armed Forces:
The Presidential Memorandum directs that the Department return to the longstanding policy and practice
on military service by transgender individuals that was in
place prior to June 2016. The Presidential Memorandum also allows the Secretary to determine how to address transgender individuals currently serving in the
Armed Forces. The Panel will set forth, in a single
policy document, the standards and procedures applicable to military service by transgender persons, with specific attention to addressing transgender persons currently serving. The Panel will develop a universal retention standard that promotes military readiness, lethality, deployability, and unit cohesion.
To support its efforts, the Panel will conduct an independent multi-disciplinary review and study of relevant data and information pertaining to transgender
Service members. The study will be planned and executed to inform the Implementation Plan. The independent multi-disciplinary review and study will address aspects of medical care and treatment, personnel
management, general policies and practices, and other
matters, including the effects of the service of transgender persons on military readiness, lethality, deployability, and unit cohesion.
The Panel may obtain advice from outside experts on
an individual basis. The recommendations of the Deputy Secretary and the Vice Chairman will be coordinated
with senior civilian officials, the Military Departments,
and the Joint Staff.

 107a
All DoD Components will cooperate fully in, and will
support the Deputy Secretary and the Vice Chairman in
their efforts, by making personnel and resources available upon request in support of their efforts.
/s/ JAMES N. MATTIS
JAMES N. MATTIS
cc:
Secretary of Homeland Security

 108a
APPENDIX M
SECRETARY OF DEFENSE
1000 DEFENSE PENTAGON
WASHINGTON, DC 20301-1000

[9/14/17]
MEMORANDUM FOR SECRETARIES OF THE
MILITARY DEPARTMENTS
CHAIRMAN OF THE JOINT CHIEFS OF
STAFF
UNDER SECRETARIES OF
DEFENSE
COMMANDANT, U.S. COAST GUARD
DEPUTY CHIEF MANAGEMENT
OFFICER
CHIEF, NATIONAL GUARD BUREAU
GENERAL COUNSEL OF THE
DEPARTMENT OF DEFENSE
DIRECTOR OF COST ASSESSMENT
AND PROGRAM EVALUATION
INSPECTOR GENERAL OF THE
DEPARTMENT OF DEFENSE
DIRECTOR OF OPERATIONAL TEST
AND EVALUATION
CHIEF INFORMATION OFFICER OF
THE DEPARTMENT OF DEFENSE
ASSISTANT SECRETARY OF DEFENSE
FOR LEGISLATIVE AFFAIRS
ASSISTANT TO THE SECRETARY OF
DEFENSE FOR PUBLIC AFFAIRS
DIRECTOR OF NET ASSESSMENT

 109a
DIRECTOR, STRATEGIC CAPABILITIES
OFFICE
DIRECTORS OF DEFENSE AGENCIES
DIRECTORS OF DOD FIELD
ACTIVITIES
SUBJECT: Military Service by Transgender Individuals
—Interim Guidance
The Department of Defense (“DoD”) has received the
Presidential Memorandum, Military Service by Transgender Individuals, dated August 25, 2017 (“Presidential
Memorandum”). DoD will carry out the President’s policy and directives in consultation with the Department of
Homeland Security (“DHS”) with respect to the U.S.
Coast Guard. Not later than February 21, 2018, I will
present the President with a plan to implement the policy
and directives in the Presidential Memorandum. Consistent with military effectiveness and lethality, budgetary constraints, and applicable law, the implementation
plan will establish the policy, standards and procedures
for transgender individuals serving in the military. The
Deputy Secretary of Defense and the Vice Chairman of
the Joint Chiefs of Staff, supported by a panel of experts
(“Panel”), shall propose for my consideration recommendations supported by appropriate evidence and information.
To comply with the Presidential Memorandum, ensure the continued combat readiness of the force, and
maximize flexibility in the development of the implementation plan, the attached Interim Guidance takes effect immediately and will remain in effect until I promulgate DoD’s final policy in this matter. By agree-

 110a
ment with the Acting Secretary of Homeland Security,
this Interim Guidance also applies to the U.S. Coast
Guard.
/s/

JAMES N. MATTIS
JAMES N. MATTIS

Attachment:
As stated
cc:
Secretary of Homeland Security

 111a
Interim Guidance
First and foremost, we will continue to treat every Service member with dignity and respect.
Accessions: The procedures set forth in Department
of Defense Instruction (DoDI) 6130.03, Medical
Standards for Appointment, Enlistment, or Induction
in the Military Services, dated April 28, 2010 (Change
1), which generally prohibit the accession of transgender individuals into the Military Services, remain in
effect because current or history of gender dysphoria
or gender transition does not meet medical standards,
subject to the normal waiver process.
Medical Care and Treatment: Service members who
receive a gender dysphoria diagnosis from a military
medical provider will be provided treatment for the
diagnosed medical condition. As directed by the Memorandum, no new sex reassignment surgical procedures
for military personnel will be permitted after March 22,
2018, 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.
In-Service Transition for Transgender Service Members:
The policies and procedures set forth in DoDI 1300.28,
In-Service Transition for Transgender Service Members, dated July 1, 2016, remain in effect until I promulgate DoD’s final guidance in this matter.
Separation and Retention of Transgender Service
members:
Service members who have completed their gender
transition process and whose gender marker has been
changed in DEERS will continue to serve in their pre-

 112a
ferred gender while this Interim Guidance remains in
effect.
An otherwise qualified transgender Service member
whose term of service expires while this Interim Guidance remains in effect, may, at the Service member’s
request, be re-enlisted in service under existing procedures.
As directed by the Memorandum, no action may be
taken to involuntarily separate or discharge an otherwise qualified Service member solely on the basis of a
gender dysphoria diagnosis or transgender status.
Transgender Service members are subject to the same
standards as any other Service member of the same
gender; they may be separated or discharged under
existing bases and processes, but not on the basis of a
gender dysphoria diagnosis or transgender status.
Reestablishment of the Office of the Under Secretary of
Defense for Personnel and Readiness (OUSD(P&R))
Central Coordination Cell: The OUSD(P&R) will reestablish the Central Coordination Cell (CCC) to provide expert advice and assistance to the Military Departments and Services and to commanders with regard to this Interim Guidance. The CCC may be
reached at https://ra.sp.pentagon.mil/DoDCCC/SitePages/
HomePage.aspx.

 113a
APPENDIX N
DEPARTMENT OF DEFENSE REPORT AND
RECOMMENDATIONS
ON
MILITARY SERVICE BY TRANSGENDER PERSONS

Feb. 2018
UNCLASSIFIED//FOR OFFICIAL USE ONLY

 114a
Table of Contents
Executive Summary ........................................................ [2]
History of Policies Concerning Transgender
Persons ........................................................................ [7]

Transgender Policy Prior to the Carter
Policy ................................................................... [8]
A. Accession Medical Standards ..................... [8]
B. Retention Standards .................................. [11]
The Carter Policy.................................................. [12]
A. Changes to the DSM .................................. [12]
B. The Department Begins Review of
Transgender Policy .................................... [13]
C. New Standards for Transgender
Persons ........................................................ [14]
1. Retention Standards ........................ [14]
2. Accession Standards ........................ [15]
Panel of Experts Recommendation ........................... [17]
Recommended Policy ................................................... [19]

Discussion of Standards ....................................... [19]
A. Mental Health Standards .......................... [19]
B. Physical Health Standards ........................ [27]
C. Sex-Based Standards ................................. [28]
New Transgender Policy ..................................... [32]
A. 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 ................................... [32]

 115a
B. Transgender Persons Who Require or
Have Undergone Gender Transition
Are Disqualified.......................................... [32]
1. Undermines Readiness .................... [32]
2. Incompatible with Sex-Based
Standards .......................................... [35]
3. Imposes Disproportionate Costs ..... [41]
C. Transgender Persons With a History
or Diagnosis of Gender Dysphoria Are
Disqualified, Except Under Certain
Limited Circumstances.............................. [41]
1. Accession of Individuals
Diagnosed with Gender
Dysphoria .......................................... [42]
2. Retention of Service Members
Diagnosed with Gender
Dysphoria .......................................... [42]
3. Exempting Current Service
Members Who Have Already
Received a Diagnosis of Gender
Dysphoria .......................................... [42]
Conclusion ...................................................................... [44]

 116a
Executive Summary

It is a bedrock principle of the Department of Defense that any eligible individual 1 who can meet the
high standards for military service without special accommodations should be permitted to serve. This is no
less true for transgender persons than for any other
eligible individual. This report, and the recommendations contained herein, proceed from this fundamental
premise.
The starting point for determining a person’s qualifications for military duty is whether the person can
meet the standards that govern the Armed Forces.
Federal law requires that anyone entering into military
service be “qualified, effective, and able-bodied.”2 Military standards are designed not only to ensure that this
statutory requirement is satisfied but to ensure the
overall military effectiveness and lethality of the Armed
Forces.
The purpose of the Armed Forces is to fight and win
the Nation’s wars. No human endeavor is more physically, mentally, and emotionally demanding than the
life and death struggle of battle. Because the stakes in
war can be so high—both for the success and survival of
individual units in the field and for the success and
survival of the Nation—it is imperative that all Service
members are physically and mentally able to execute
their duties and responsibilities without fail, even while
exposed to extreme danger, emotional stress, and harsh
environments.
1
2

10 U.S.C. §§ 504, 505(a), 12102(b).
10 U.S.C. § 505(a).

 117a
Although not all Service members will experience
direct combat, standards that are applied universally
across the Armed Forces must nevertheless account for
the possibility that any Service member could be thrust
into the crucible of battle at any time. As the Department has made clear to Congress, “[c]ore to maintaining
a ready and capable military force is the understanding
that each Service member is required to be available
and qualified to perform assigned missions, including
roles and functions outside of their occupation, in any
setting.”3 Indeed, there are no occupations in the military that are exempt from deployment.4 Moreover, while
non-combat positions are vital to success in war, the
physical and mental requirements for those positions
should not be the barometer by which the physical and
mental requirements for all positions, especially combat
positions, are defined. Fitness for combat must be the
metric against which all standards and requirements are
judged. To give all Service members the best chance of
success and survival in war, the Department must maintain the highest possible standards of physical and mental
health and readiness across the force.
While individual health and readiness are critical to
success in war, they are not the only measures of military effectiveness and lethality. A fighting unit is not a
mere collection of individuals; it is a unique social organism that, when forged properly, can be far more
powerful than the sum of its parts. Human experience
3
Under Secretary of Defense for Personnel and Readiness, “Fiscal Year 2016 Report to Congress on the Review of Enlistment
of Individuals with Disabilities in the Armed Forces,” pp. 8-9
(Apr. 2016).
4
Id.

 118a
over millennia—from the Spartans at Thermopylae to
the band of brothers of the 101st Airborne Division in
World War II, to Marine squads fighting building-tobuilding in Fallujah—teaches us this. Military effectiveness requires transforming a collection of individuals into a single fighting organism—merging multiple
individual identities into one. This transformation requires many ingredients, including strong leadership,
training, good order and discipline, and that most intangible, but vital, of ingredients—unit cohesion or, put
another way, human bonding.
Because unit cohesion cannot be easily quantified, it
is too often dismissed, especially by those who do not
know what Justice Oliver Wendell Holmes called the
“incommunicable experience of war.”5 But the experience of those who, as Holmes described, have been
“touched with fire” in battle and the experience of those
who have spent their lives studying it attest to the
enduring, if indescribable, importance of this intangible
ingredient. As Dr. Jonathan Shay articulated it in his
study of combat trauma in Vietnam, “[s]urvival and
success in combat often require soldiers to virtually read
one another’s minds, reflexively covering each other
with as much care as they cover themselves, and going
to one another’s aid with little thought for safety.” 6
Not only is unit cohesion essential to the health of the
unit, Dr. Shay found that it was essential to the health of
the individual soldier as well. “Destruction of unit cohesion,” Dr. Shay concluded, “cannot be overemphasized
The Essential Holmes: Selections from the Letters, Speeches,
Judicial Opinions, and Other Writings of Oliver Wendell Holmes,
Jr., p. 93 (Richard Posner, ed., University of Chicago Press 1992).
6
Jonathan Shay, Achilles in Vietnam, p. 61 (Atheneum 1994).
5

 119a
as a reason why so many psychological injuries that might
have healed spontaneously instead became chronic.”7
Properly understood, therefore, military effectiveness and lethality are achieved through a combination
of inputs that include individual health and readiness,
strong leadership, effective training, good order and discipline, and unit cohesion. To achieve military effectiveness and lethality, properly designed military standards
must foster these inputs. And, for the sake of efficiency,
they should do so at the least possible cost to the taxpayer.
To the greatest extent possible, military standards—
especially those relating to mental and physical health
—should be based on scientifically valid and reliable
evidence. Given the life-and-death consequences of
warfare, the Department has historically taken a conservative and cautious approach in setting the mental
and physical standards for the accession and retention
of Service members.
Not all standards, however, are capable of scientific
validation or quantification. Instead, they are the product of professional military judgment acquired from
hard-earned experience leading Service members in
peace and war or otherwise arising from expertise in
military affairs. Although necessarily subjective, this
judgment is the best, if not only, way to assess the impact of any given military standard on the intangible
ingredients of military effectiveness mentioned above—
leadership, training, good order and discipline, and unit
cohesion.

7

Id. at 198

 120a
For decades, military standards relating to mental
health, physical health, and the physiological differences
between men and women operated to preclude from
military service transgender persons who desired to live
and work as the opposite gender.
Relying on a report by an outside consultant, the
RAND National Defense Research Institute, the Department, at the direction of Secretary Ashton Carter,
reversed that longstanding policy in 2016. Although
the new policy—the “Carter policy”—did not permit all
transgender Service members to change their gender to
align with their preferred gender identity, it did establish a process to do so for transgender Service members
who were diagnosed with gender dysphoria—that is,
the distress or impairment of functioning that is associated with incongruity between one’s biological sex and
gender identity. It also set in motion a new accession
policy that would allow applicants who had a history of
gender dysphoria, including those who had already transitioned genders, to enter into military service, provided
that certain conditions were met. Once a change of gender is authorized, the person must be treated in all respects in accordance with the person’s preferred gender, whether or not the person undergoes any hormone
therapy or surgery, so long as a treatment plan has
been approved by a military physician.
The new accession policy had not taken effect when
the current administration came into office. Secretary
James Mattis exercised his discretion and approved the
recommendation of the Services to delay the Carter accession policy for an additional six months so that the
Department could assess its impact on military effectiveness and lethality. While that review was ongoing,

 121a
President Trump issued a memorandum to the Secretary of Defense and the Secretary of Homeland Security with respect to the U.S. Coast Guard expressing
that further study was needed to examine the effects of
the prior administration’s policy change. The memorandum directed the Secretaries to reinstate the longstanding preexisting accession policy until such time
that enough evidence existed to conclude that the Carter policy would not have negative effects on military
effectiveness, lethality, unit cohesion, and military resources. The President also authorized the Secretary of
Defense, in consultation with the Secretary of Homeland
Security, to address the disposition of transgender individuals who were already serving in the military.
Secretary Mattis established a Panel of Experts that
included senior uniformed and civilian leaders of the
Department and U.S. Coast Guard, many with experience leading Service members in peace and war. The
Panel made recommendations based on each Panel member’s independent military judgment. Consistent with
those recommendations, the Department, in consultation with the Department of Homeland Security, recommends the following policy to the President:
A. 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. Transgender persons who have not transitioned to another gender and
do not have a history or current diagnosis of gender
dysphoria—i.e., they identify as a gender other than
their biological sex but do not currently experience distress or impairment of functioning in meeting the
standards associated with their biological sex—are quali-

 122a
fied for service, provided that they, like all other persons, satisfy all standards and are capable of adhering
to the standards associated with their biological sex.
This is consistent with the Carter policy, under which
transgender persons without a history or diagnosis of
gender dysphoria must serve, like everyone else, in their
biological sex.
B. Transgender Persons Who Require or Have
Undergone Gender Transition Are Disqualified. Except for those who are exempt under this policy, as described below, and except where waivers or exceptions to
policy are otherwise authorized, transgender persons
who are diagnosed with gender dysphoria, either before
or after entry into service, and require transition-related
treatment, or have already transitioned to their preferred gender, should be ineligible for service. For
reasons discussed at length in this report, the Department concludes that accommodating gender transition
could impair unit readiness; undermine unit cohesion,
as well as good order and discipline, by blurring the
clear lines that demarcate male and female standards
and policies where they exist; and lead to disproportionate costs. Underlying these conclusions is the considerable scientific uncertainty and overall lack of high
quality scientific evidence demonstrating the extent
to which transition-related treatments, such as crosssex hormone therapy and sex reassignment surgery—
interventions which are unique in psychiatry and medicine
—remedy the multifaceted mental health problems associated with gender dysphoria.

 123a
C. Transgender Persons With a History or Diagnosis of Gender Dysphoria Are Disqualified, Except Under
Certain Limited Circumstances. Transgender persons
who are diagnosed with, or have a history of, gender
dysphoria are generally disqualified from accession or
retention in the Armed Forces. The standards recommended here are subject to the same procedures for
waiver or exception to policy as any other standards.
This is consistent with the Department’s handling of
other mental conditions that require treatment. As a
general matter, only in the limited circumstances described below should persons with a history or diagnosis
of gender dysphoria be accessed or retained.
1. Accession of Individuals Diagnosed with
Gender Dysphoria. Persons with a history of gender
dysphoria may access into the Armed Forces, provided
that they can demonstrate 36 consecutive months of stability (i.e., absence of gender dysphoria) immediately preceding their application; they have not transitioned to the
opposite gender; and they are willing and able to adhere
to all standards associated with their biological sex.
2. Retention of Service Members Diagnosed
with Gender Dysphoria. Consistent with the Department’s general approach of applying less stringent standards to retention than to accession in order to preserve
the Department’s substantial investment in trained
personnel, Service members who are diagnosed with
gender dysphoria after entering military service may be
retained without waiver, provided that they are willing
and able to adhere to all standards associated with their
biological sex, the Service member does not require
gender transition, and the Service member is not otherwise non-deployable for more than 12 months or for a

 124a
period of time in excess of that established by Service
policy (which may be less than 12 months).8
3. Exempting Current Service Members Who
Have Already Received a Diagnosis of Gender Dysphoria. Transgender Service members who were diagnosed with gender dysphoria by a military medical provider after the effective date of the Carter policy, but
before the effective date of any new policy, may continue to receive all medically necessary care, to change
their gender marker in the Defense Enrollment Eligibility Reporting System (DEERS), and to serve in their
preferred gender, even after the new policy commences.
This includes transgender Service members who entered into military service after January 1, 2018, when
the Carter accession policy took effect by court order.
The Service member must, however, adhere to the
Carter policy procedures and may not be deemed to be
non-deployable for more than 12 months or for a period
of time in excess of that established by Service policy
(which may be less than 12 months). While the Department believes that its solemn promise to these Service
members, and the investment it has made in them,
outweigh the risks identified in this report, should its
decision to exempt these Service members be used by a
court as a basis for invalidating the entire policy, this
exemption is and should be deemed severable from the
rest of the policy.
Although the precise number is unknown, the Department recognizes that many transgender persons
who desire to serve in the military experience gender
Under Secretary of Defense for Personnel and Readiness,
“DoD Retention Policy for Non-Deployable Service Members”
(Feb. 14, 2018).
8

 125a
dysphoria and, as a result, could be disqualified under
the recommended policy set forth in this report. Many
transgender persons may also be unwilling to adhere to
the standards associated with their biological sex as required by longstanding military policy. But others have
served, and are serving, with distinction under the standards for their biological sex, like all other Service members. Nothing in this policy precludes service by transgender persons who do not have a history or diagnosis of
gender dysphoria and are willing and able to meet all
standards that apply to their biological sex.
Moreover, nothing in this policy should be viewed as
reflecting poorly on transgender persons who suffer
from gender dysphoria, or have had a history of gender
dysphoria, and are accordingly disqualified from service.
The vast majority of Americans from ages 17 to 24—that
is, 71%—are ineligible to join the military without a
waiver for mental, medical, or behavioral reasons. 9
Transgender persons with gender dysphoria are no less
valued members of our Nation than all other categories
of persons who are disqualified from military service.
The Department honors all citizens who wish to dedicate, and perhaps even lay down, their lives in defense
of the Nation, even when the Department, in the best
interests of the military, must decline to grant their wish.
Military standards are high for a reason—the trauma
of war, which all Service members must be prepared to
face, demands physical, mental, and moral standards
that will give all Service members the greatest chance
to survive the ordeal with their bodies, minds, and moral
The Lewin Group, Inc., “Qualified Military Available (QMA)
and Interested Youth: Final Technical Report,” p. 26 (Sept. 2016).
9

 126a
character intact. The Department would be negligent to
sacrifice those standards for any cause. There are serious differences of opinion on this issue, even among
military professionals, but in the final analysis, given
the uncertainty associated with the study and treatment
of gender dysphoria, the competing interests involved,
and the vital interests at stake—our Nation’s defense
and the success and survival of our Service members in
war—the Department must proceed with caution.
History of Policies Concerning Transgender Persons

For decades, military standards have precluded the
accession and retention of certain transgender persons.10
For purposes of this report, the Department uses the broad
definition of “transgender” adopted by the RAND National Defense Institute in its study of transgender service: “an umbrella
term used for individuals who have sexual identity or gender expression that differs from their assigned sex at birth.” RAND
National Defense Research Institute, Assessing the Implications
of Allowing Transgender Personnel to Serve Openly, p. 75 (RAND
Corporation 2016), available at https://www.rand.org/content/dam/
rand/pubs/research_reports/RR1500/RR1530/RAND_RR1530.pdf
(“RAND Study”). According to the Human Rights Campaign,
“[t]he transgender community is incredibly diverse. Some transgender people identify as male or female, and some identify as
genderqueer, nonbinary, agender, or somewhere else on or outside
of the spectrum of what we understand gender to be.” Human
Rights Campaign, “Understanding the Transgender Community,”
https://www.hrc.org/resources/understanding-the-transgendercommunity (last visited Feb. 14, 2018). A subset of transgender
persons are those who have been diagnosed with gender dysphoria.
According to the Diagnostic and Statistical Manual of Mental
Disorders published by the American Psychiatric Association, “gender
dysphoria” is a “marked incongruence between one’s experienced/
expressed gender and assigned gender” that “is associated with
clinically significant distress or impairment in social, occupational, or
other important areas of functioning.” American Psychiatric Asso10

 127a
Accession standards—i.e., standards that govern induction into the Armed Forces—have historically disqualified persons with a history of “transsexualism.” Also
disqualified were persons who had undergone genital
surgery or who had a history of major abnormalities or
defects of the genitalia. These standards prevented
transgender persons, especially those who had undergone a medical or surgical gender transition, from
accessing into the military, unless a waiver was granted.
Although retention standards—i.e., standards that
govern the retention and separation of persons already
serving in the Armed Forces—did not require the mandatory processing for separation of transgender persons, it was a permissible basis for separation processing as a physical or mental condition not amounting
to a disability. More typically, however, such Service
members were processed for separation because they
suffered from other associated medical conditions or

ciation, Diagnostic and Statistical Manual of Mental Disorders
(DSM-5), pp. 452-53 (5th ed. 2013). Based on these definitions, a
person can be transgender without necessarily having gender dysphoria (i.e., the transgender person does not suffer “clinically significant distress or impairment” on account of gender incongruity). A
2016 survey of active duty Service members estimated that approximately 1% of the force—8,980 Service members—identify as transgender. Office of People Analytics, Department of Defense, “2016
Workplace and Gender Relations Survey of Active Duty Members,
Transgender Service Members,” pp. 1-2. Currently, there are
937 active duty Service members who have been diagnosed with
gender dysphoria since June 30, 2016. In addition, when using the
term “biological sex” or “sex,” this report is referring to the definition of “sex” in the RAND study: “a person’s biological status as
male or female based on chromosomes, gonads, hormones, and genitals (intersex is a rare exception).” RAND Study at 75.

 128a
comorbidities, such as depression, which were also a
basis for separation processing.
At the direction of Secretary Carter, the Department made significant changes to these standards.
These changes—i.e., the “Carter policy”—prohibit the
separation of Service members on the basis of their
gender identity and allow Service members who are
diagnosed with gender dysphoria to transition to their
preferred gender.
Transition-related treatment is highly individualized
and could involve what is known as a “medical transition,” which includes cross-sex hormone therapy, or a
“surgical transition,” which includes sex reassignment
surgery. Service members could also forego medical
transition treatment altogether, retain all of their biological anatomy, and live as the opposite gender—this is
called a “social transition.”
Once the Service member’s transition is complete, as
determined by the member’s military physician and
commander in accordance with his or her individualized
treatment plan, and the Service member provides legal
documentation of gender change, the Carter policy allows for the Service member’s gender marker to be
changed in the DEERS. Thereafter, the Service member must be treated in every respect—including with
respect to physical fitness standards; berthing, bathroom, and shower facilities; and uniform and grooming
standards—in accordance with the Service member’s
preferred gender. The Carter policy, however, still
requires transgender Service members who have not
changed their gender marker in DEERS, including
persons who identify as other than male or female, to
meet the standards associated with their biological sex.

 129a
The Carter policy also allows accession of persons
with gender dysphoria who can demonstrate stability in
their preferred gender for at least 18 months. The
accession policy did not take effect until required by
court order, effective January 1, 2018.
The following discussion describes in greater detail
the evolution of accession and retention standards pertaining to transgender persons.
Transgender Policy Prior to the Carter Policy
A.

Accession Medical Standards

DoD Instruction (DoDI) 6130.03, Medical Standards
for Appointment, Enlistment, or Induction in the Military Services, establishes baseline accession medical
standards used to determine an applicant’s medical
qualifications to enter military service. This instruction is reviewed every three to four years by the Accession Medical Standards Working Group (AMSWG),
which includes medical and personnel subject matter
experts from across the Department, its Military Services, and the U.S. Coast Guard. The AMSWG thoroughly reviews over 30 bodily systems and medical focus areas while carefully considering evidence-based
clinical information, peer-reviewed scientific studies,
scientific expert consensus, and the performance of existing standards in light of empirical data on attrition,
deployment readiness, waivers, and disability rates.
The AMSWG also considers inputs from non-government
sources and evaluates the applicability of those inputs
against the military’s mission and operational environment, so that the Department and the Military Services
can formally coordinate updates to these standards.

 130a
Accession medical standards are based on the operational needs of the Department and are designed to
ensure that individuals are physically and psychologically “qualified, effective, and able-bodied persons” 11
capable of performing military duties. Military effectiveness requires that the Armed Forces manage an integrated set of unique medical standards and qualifications because all military personnel must be available
for worldwide duty 24 hours a day without restriction or
delay. Such duty may involve a wide range of demands,
including exposure to danger or harsh environments,
emotional stress, and the operation of dangerous, sensitive, or classified equipment. These duties are often
in remote areas lacking immediate and comprehensive
medical support. Such demands are not normally found
in civilian occupations, and the military would be negligent in its responsibility if its military standards permitted admission of applicants with physical or emotional
impairments that could cause harm to themselves or
others, compromise the military mission, or aggravate
any current physical or mental health conditions that
they may have.
In sum, these standards exist to ensure that persons
who are under consideration for induction into military
service are:

• free of contagious diseases that probably will
endanger the health of other personnel;

• free of medical conditions or physical defects that

may require excessive time lost from duty for
necessary treatment or hospitalization, or prob-

11

10 U.S.C. § 505(a).

 131a
ably will result in separation from service for
medical unfitness;

• medically capable of satisfactorily completing
required training;

• medically adaptable to the military environment

without the necessity of geographical area limitations; and

• medically capable of performing duties without

aggravation of existing physical defects or medical conditions. 12

Establishing or modifying an accession standard is a
risk management process by which a health condition is
evaluated in terms of the probability and effect on the
five listed outcomes above. These standards protect
the applicant from harm that could result from the rigors of military duty and help ensure unit readiness by
minimizing the risk that an applicant, once inducted into
military service, will be unavailable for duty because of
illness, injury, disease, or bad health.
Unless otherwise expressly provided, a current diagnosis or verified past medical history of a condition
listed in DoDI 6130.03 is presumptively disqualifying. 13
Accession standards reflect the considered opinion of
the Department’s medical and personnel experts that
an applicant with an identified condition should only be
able to serve if they can qualify for a waiver. Waivers
Department of Defense Instruction 6130.03, Medical Standards for Appointment, Enlistment, or Induction in the Military
Services (Apr. 28, 2010), incorporating Change 1, p. 2 (Sept. 13,
2011) (“DoDI 6130.03”).
13
Id. at 10.
12

 132a
are generally only granted when the condition will not
impact the individual’s assigned specialty or when the
skills of the individual are unique enough to warrant the
additional risk. Waivers are not generally granted when
the conditions of military service may aggravate the
existing condition. For some conditions, applicants with
a past medical history may nevertheless be eligible for
accession if they meet the requirements for a certain
period of “stability”—that is, they can demonstrate that
the condition has been absent for a defined period of
time prior to accession. 14 With one exception, 15 each
accession standard may be waived in the discretion of
the accessing Service based on that Service’s policies
and practices, which are driven by the unique requirements of different Service missions, different Service
occupations, different Service cultures, and at times,
different Service recruiting missions.
Historically, mental health conditions have been a
great concern because of the unique mental and emotional stresses of military service. Mental health conditions frequently result in attrition during initial entry
training and the first term of service and are routinely
considered by in-service medical boards as a basis for
separation. Department mental health accession standards have typically aligned with the conditions identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM), which is published by the AmeriSee, e.g., id. at 47.
The accession standards for applicants with HIV are not waivable absent a waiver from both the accessing Service and the
Under Secretary of Defense for Personnel and Readiness. See
Department of Defense Instruction 6485.01, Human Immunodeficiency Virus (HIV) in Military Service Members (Jun. 7, 2013).
14
15

 133a
can Psychiatric Association (APA). The DSM sets forth
the descriptions, symptoms, and other criteria for diagnosing mental disorders. Health care professionals in
the United States and much of the world use the DSM
as the authoritative guide to the diagnosis of mental
disorders.
Prior to implementation of the Carter policy, the Department’s accession standards barred persons with a
“[h]istory of psychosexual conditions, including but not
limited to transsexualism, exhibitionism, transvestism,
voyeurism, and other paraphilias.”16 These standards
were consistent with DSM-III, which in 1980, introduced
the diagnosis of transsexualism.17 In 1987, DSM-III-R
added gender identity disorder, non-transsexual type.18
DSM-IV, which was published in 1994, combined these
two diagnoses and called the resulting condition “gender identity disorder.”19 Due to challenges associated
with updating and publishing a new iteration of DoDI
6130.03, the DoDI’s terminology has not changed to reflect the changes in the DSM, including further changes
that will be discussed later.
DoDI 6130.03 also contains other disqualifying conditions that are associated with, but not unique to,
transgender persons, especially those who have under-

DoDI 6130.03 at 48.
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders (DSM-III), pp. 261-264 (3rd ed. 1980).
18
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders (DSM-III-R), pp. 76-77 (3rd ed.
revised 1987).
19
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV ), pp. 532-538 (4th ed. 1994).
16
17

 134a
taken a medical or surgical transition to the opposite
gender. These include:

• a history of chest surgery, including but not lim-

ited to the surgical removal of the breasts,20 and
genital surgery, including but not limited to the
surgical removal of the testicles;21

• a history of major abnormalities or defects of

the genitalia, including but not limited to change
of sex, hermaphroditism, penis amputation, and
pseudohemaphroditism;22

• mental health conditions such as suicidal ideation,
depression, and anxiety disorder;23 and

• the use of certain medications, or conditions re-

quiring the use of medications, such as hormone
therapies and anti-depressants.24

Together with a diagnosis of transsexualism, these conditions, which were repeatedly validated by the AMSWG,
provided multiple grounds for the disqualification of
transgender persons.
B.

Retention Standards

The standards that govern the retention of Service
members who are already serving in the military are
generally less restrictive than the corresponding accession standards due to the investment the Depart-

20
21
22
23
24

DoDI 6130.03 at 18.
Id. at 25-27.
Id.
Id. at 47-48.
Id. at 48.

 135a
ment has made in the individual and their increased
capability to contribute to mission accomplishment.
Also unlike the Department’s accession standards,
each Service develops and applies its own retention
standards. With respect to the retention of transgender Service members, these Service-specific standards may have led to inconsistent outcomes across the
Services, but as a practical matter, before the Carter
policy, the Services generally separated Service members who desired to transition to another gender.
During that time, there were no express policies allowing individuals to serve in their preferred gender
rather than their biological sex.
Previous Department policy concerning the retention (administrative separation) of transgender persons
was not clear or rigidly enforced. DoDI 1332.38, Physical Disability Evaluation, now cancelled, characterized
“sexual gender and identity disorders” as a basis for
allowing administrative separation for a condition not
constituting a disability; it did not require mandatory
processing for separation. A newer issuance, DoDI
1332.18, Disability Evaluation System (DES), August
5, 2014, does not reference these disorders but instead
reflects changes in how such medical conditions are
characterized in contemporary medical practice.
Earlier versions of DoDI 1332.14, Enlisted Administrative Separations, contained a cross reference to
the list of conditions not constituting a disability in
former DoDI 1332.38. This was how “transsexualism,”
the older terminology, was used as a basis for administrative separation. Separation on this basis required
formal counseling and an opportunity to address the
issue, as well as a finding that the condition was inter-

 136a
fering with the performance of duty. In practice, transgender persons were not usually processed for administrative separation on account of gender dysphoria or
gender identity itself, but rather on account of medical
comorbidities (e.g., depression or suicidal ideation) or
misconduct due to cross dressing and related behavior.
The Carter Policy
At the direction of Secretary Carter, the Department
began formally reconsidering its accession and retention standards as they applied to transgender persons
with gender dysphoria in 2015. This reevaluation,
which culminated with the release of the Carter policy
in 2016, was prompted in part by amendments to the
DSM that appeared to change the diagnosis for gender
identity disorder from a disorder to a treatable condition called gender dysphoria. Starting from the assumption that transgender persons are qualified for
military service, the Department sought to identify and
remove the obstacles to such service. This effort resulted in substantial changes to the Department’s accession and retention standards to accommodate transgender persons with gender dysphoria who require treatment for transitioning to their preferred gender.
A.

Changes to the DSM

When the APA published the fifth edition of the DSM
in May 2013, it changed “gender identity disorder’’ to
“gender dysphoria” and designated it as a “condition”
—a new diagnostic class applicable only to gender
dysphoria—rather than a “disorder.” 25 This change
See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-5) pp. 451-459 (5th ed.
2013) (‘‘DSM-5”).
25

 137a
was intended to reflect the APA’s conclusion that gender nonconformity alone—without accompanying distress or impairment of functioning—was not a mental
disorder. 26 DSM-5 also decoupled the diagnosis for
gender dysphoria from diagnoses for “sexual dysfunction and parphilic disorders, recognizing fundamental
differences between these diagnoses.” 27
According to DSM-5, gender dysphoria in adolescents and adults is “[a] marked incongruence between
one’s experience/expressed gender and assigned gender, of at least 6 months’ duration, as manifested by at
least two of the following”:

• A marked incongruence between one’s experienced/
expressed gender and primary and/or secondary
sex characteristics (or in young adolescents, the
anticipated secondary sex characteristics).

• A strong desire to be rid of one’s primary and/or

secondary sex characteristics because of a marked

RAND Study at 77; see also Hayes Directory, “Sex Reassignment Surgery for the Treatment of Gender Dysphoria” (May 15,
2014), p. 1 (“This change was intended to reflect a consensus that
gender nonconformity is not a psychiatric disorder, as it was previously categorized. However, since the condition may cause clinically significant distress and since a diagnosis is necessary for access to medical treatment, the new term was proposed.”); Irene
Folaron & Monica Lovasz, “Military Considerations in Transsexual
Care of the Active Duty Member,” Military Medicine, Vol. 181,
pp. 1182-83 (2016) (“In the DSM-5, [gender dysphoria] has replaced
the diagnosis of ‘gender identity disorder’ in order to place the
focus on the dysphoria and to diminish the pathology associated
with identity incongruence.”).
27
Irene Folaron & Monica Lovasz, “Military Considerations in
Transsexual Care of the Active Duty Member,” Military Medicine,
Vol. 181, p. 1183 (2016).
26

 138a
incongruence with one’s experienced/expressed
gender (or in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics).

• A strong desire for the primary and/or secondary
sex characteristics of the other gender.

• A strong desire to be of the other gender (or some

alternative gender different from one’s assigned
gender).

• A strong desire to be treated as the other gender

(or some alternative gender different from one’s
assigned gender).

• A strong conviction that one has the typical feel-

ings and reactions of the other gender (or some
alternative gender different from one’s assigned
gender).

Importantly, DSM-5 observed that gender dysphoria
“is associated with clinically significant distress or
impairment in social, occupational, or other important
areas of functioning.”28
B.

The Department Begins Review of Transgender
Policy

On July 28, 2015, then Secretary Carter issued a
memorandum announcing that no Service members
would be involuntarily separated or denied reenlistment
or continuation of service based on gender identity or a
diagnosis of gender dysphoria without the personal approval of the Under Secretary of Defense for Personnel
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders (DSM-5), p. 453 (5th ed. 2013).
28

 139a
and Readiness. 29 The memorandum also created the
Transgender Service Review Working Group (TSRWG)
“to study the policy and readiness implications of welcoming transgender persons to serve openly.” 30 The
memorandum specifically directed the working group to
“start with the presumption that transgender persons
can serve openly without adverse impact on military
effectiveness and readiness, unless and except where
objective practical impediments are identified.”31
As part of this review, the Department commissioned the RAND National Defense Research Institute
to conduct a study to “(1) identify the health care needs
of the transgender population, transgender Service
members’ potential health care utilization rates, and the
costs associated with extending health care coverage for
transition-related treatments; (2) assess the potential
readiness impacts of allowing transgender Service
members to serve openly; and (3) review the experiences of foreign militaries that permit transgender
Service members to serve openly.”32 The resulting report, entitled Assessing the Implications of Allowing
Transgender Personnel to Serve Openly, reached several conclusions. First, the report estimated that there
are between 1,320 and 6,630 transgender Service members already serving in the active component of the
Armed Forces and 830 to 4,160 in the Selected Reserve.33 Second, the report predicted “annual gender
Memorandum from Ashton Carter, Secretary of Defense,
“Transgender Service Members” (July 28, 2015).
30
Id.
31
Id.
32
RAND Study at 1.
33
Id. at x-xi.
29

 140a
transition-related health care to be an extremely small
part of the overall health care provided to the [active
component] population.”34 Third, the report estimated
that active component “health care costs will increase
by between $2.4 million and $8.4 million annually—an
amount that will have little impact on and represents an
exceedingly small proportion of [active component]
health care expenditures (approximately $6 billion in
FY 2014).”35 Fourth, the report “found that less than
0.0015 percent of the total available labor-years would
be affected, based on estimated gender transition-related
health care utilization rates.”36 Finally, the report concluded that “[e]xisting data suggest a minimal impact on
unit cohesion as a result of allowing transgender personnel to serve openly.”37 “Overall,” according to RAND,
“our study found that the number of U.S. transgender
Service members who are likely to seek transitionrelated care is so small that a change in policy will likely
have a marginal impact on health care costs and the
readiness of the force.”38
The RAND report thus acknowledged that there will
be an adverse impact on health care utilization and costs,
readiness, and unit cohesion, but concluded nonetheless
that the impact will be “negligible” and “marginal” because of the small estimated number of transgender Service members relative to the size of the active component of the Armed Forces. Because of the RAND re34
35
36
37
38

Id. at xi.
Id. at xi-xii.
Id. at xii.
Id.
Id. at 69.

 141a
port’s macro focus, however, it failed to analyze the impact at the micro level of allowing gender transition by
individuals with gender dysphoria. For example, as
discussed in more detail later, the report did not examine the potential impact on unit readiness, perceptions of fairness and equity, personnel safety, and reasonable expectations of privacy at the unit and sub-unit
levels, all of which are critical to unit cohesion. Nor did
the report meaningfully address the significant mental
health problems that accompany gender dysphoria—
from high rates of comorbidities and psychiatric hospitalizations to high rates of suicide ideation and suicidality
—and the scope of the scientific uncertainty regarding
whether gender transition treatment fully remedies those
problems.
C.

New Standards for Transgender Persons

Based on the RAND report, the work of the TSRWG,
and the advice of the Service Secretaries, Secretary
Carter approved the publication of DoDI 1300.28, Inservice Transition for Service Members Identifying as
Transgender, and Directive-type Memorandum (DTM)
16-005, “Military Service of Transgender Service Members,” on June 30, 2016. Although the new retention
standards were effective immediately upon publication
of the above memoranda, the accession standards were
delayed until July 1, 2017, to allow time for training all
Service members across the Armed Forces, including
recruiters, Military Entrance Processing Station (MEPS)
personnel, and basic training cadre, and to allow time
for modifying facilities as necessary.
1. Retention Standards. DoDI 1300.28 establishes the procedures by which Service members who
are diagnosed with gender dysphoria may administra-

 142a
tively change their gender. Once a Service member
receives a gender dysphoria diagnosis from a military
physician, the physician, in consultation with the Service member, must establish a treatment plan. The
treatment plan is highly individualized and may include
cross-sex hormone therapy (i.e., medical transition), sex
reassignment surgery (i.e., surgical transition), or simply living as the opposite gender but without any crosssex hormone or surgical treatment (i.e., social transition). The nature of the treatment is left to the professional medical judgment of the treating physician
and the individual situation of the transgender Service
member. The Department does not require a Service
member with gender dysphoria to undergo cross-sex
hormone therapy, sex reassignment surgery, or any other
physical changes to effectuate an administrative change
of gender. During the course of treatment, commanders
are authorized to grant exceptions from physical fitness, uniform and grooming, and other standards, as
necessary and appropriate, to transitioning Service
members. Once the treating physician determines that
the treatment plan is complete, the Service member’s
commander approves, and the Service member produces
legal documentation indicating change of gender (e.g.,
certified birth certificate, court order, or U.S. passport),
the Service member may request a change of gender
marker in DEERS. Once the DEERS gender marker
is changed, the Service member is held to all standards
associated with the member’s transitioned gender,
including uniform and grooming standards, body composition assessment, physical readiness testing, Military Personnel Drug Abuse Testing Program participation, and other military standards congruent to the
member’s gender. Indeed, the Service member must

 143a
be treated in all respects in accordance with the member’s transitioned gender, including with respect to
berthing, bathroom, and shower facilities. Transgender
Service members who do not meet the clinical criteria
for gender dysphoria, by contrast, remain subject to the
standards and requirements applicable to their biological sex.
2. Accession Standards. DTM 16-005 directed
that the following medical standards for accession into
the Military Services take effect on July 1, 2017:
(1) A history of gender dysphoria is disqualifying,
unless, as certified by a licensed medical provider, the applicant has been stable without clinically
significant distress or impairment in social, occupational, or other important areas of functioning
for 18 months.
(2) A history of medical treatment associated with
gender transition is disqualifying, unless, as certified by a licensed medical provider:
(a) the applicant has completed all medical treatment associated with the applicant’s gender
transition; and
(b) the applicant has been stable in the preferred gender for 18 months; and
(c) if the applicant is presently receiving crosssex hormone therapy post-gender transition,
the individual has been stable on such hormones for 18 months.
(3) A history of sex reassignment or genital reconstruction surgery is disqualifying, unless, as certified by a licensed medical provider:

 144a
(a) a period of 18 months has elapsed since the
date of the most recent of any such surgery;
and
(b) no functional limitations or complications persist, nor is any additional surgery required.39

Memorandum from Ashton Carter, Secretary of Defense,
“Directive-type Memorandum (DTM) 16-005, ‘Military Service of
Transgender Service Members.’ ” Attachment, pp. 1-2 (June 30,
2016).
39

 145a
Panel of Experts Recommendation

The Carter policy’s accession standards for persons
with a history of gender dysphoria were set to take
effect on July 1, 2017, but on June 30, after consultation
with the Secretaries and Chiefs of Staff of each Service,
Secretary Mattis postponed the new standards for an
additional six months “to evaluate more carefully the
impact of such accessions on readiness and lethality.”40
Secretary Mattis specifically directed that the review
would “include all relevant considerations” and would
last for five months, with a due date of December 1,
2017.41 The Secretary also expressed his desire to have
“the benefit of the views of the military leadership and
of the senior civilian officials who are now arriving in
the Department.”42
While Secretary Mattis’s review was ongoing, President Trump issued a memorandum, on August 25, 2017,
directing the Secretary of Defense, and the Secretary of
Homeland Security with respect to the U.S. Coast
Guard, to reinstate longstanding policy generally barring the accession of transgender individuals “until such
time as a sufficient basis exists upon which to conclude
that terminating that policy and practice” would not
“hinder military effectiveness and lethality, disrupt unit
cohesion, or tax military resources.”43 The President
Memorandum from James N. Mattis, Secretary of Defense,
“Accession of Transgender Individuals into the Military Services”
(June 30, 2017).
41
Id.
42
Id.
43
Memorandum from Donald J. Trump, President of the United
States, “Military Service by Transgender Individuals” (Aug. 25,
2017).
40

 146a
found that “further study is needed to ensure that
continued implementation of last year’s policy change
would not have those negative effects.”44 Accordingly,
the President directed both Secretaries to maintain the
prohibition on accession of transgender individuals
“until such time as the Secretary of Defense, after
consulting with the Secretary of Homeland Security,
provides a recommendation to the contrary” that is
convincing.45 The President made clear that the Secretaries may advise him “at any time, in writing, that a
change to this policy is warranted.”46 In addition, the
President gave both Secretaries discretion to “determine how to address transgender individuals currently
serving” in the military and made clear that no action be
taken against them until a determination was made. 47
On September 14, 2017, Secretary Mattis established a
Panel of Experts to study, in a “comprehensive, holistic,
and objective” manner, “military service by transgender
individuals, focusing on military readiness, lethality, and
unit cohesion, with due regard for budgetary constraints
and consistent with applicable law.”48 He directed the
Panel to “conduct an independent multi-disciplinary review and study of relevant data and information pertaining to transgender Service members.”49
Id. at 1.
Id. at 2.
46
Id.
47
Id.
48
Memorandum from James N. Mattis, Secretary of Defense,
“Terms of Reference—Implementation of Presidential Memorandum on Military Service by Transgender Individuals,” pp. 1-2
(Sept. 14, 2017).
49
Id. at 2.
44
45

 147a
The Panel consisted of the Under Secretaries of the
Military Departments (or officials performing their duties), the Armed Services’ Vice Chiefs (including the Vice
Commandant of the U.S. Coast Guard), and the Senior
Enlisted Advisors, and was chaired by the Under Secretary of Defense for Personnel and Readiness or an
official performing those duties. The Secretary of Defense selected these senior leaders because of their experience leading warfighters in war and peace or their
expertise in military operational effectiveness. These
senior leaders also have the statutory responsibility to
organize, train, and equip military forces and are uniquely
qualified to evaluate the impact of policy changes on the
combat effectiveness and lethality of the force. The
Panel met 13 times over a span of 90 days.
The Panel received support from medical and personnel experts from across the Departments of Defense
and Homeland Security. The Transgender Service Policy Working Group, comprised of medical and personnel
experts from across the Department, developed policy
recommendations and a proposed implementation plan
for the Panel’s consideration. The Medical and Personnel
Executive Steering Committee, a standing group of the
Surgeons General and Service Personnel Chiefs, led by
Personnel and Readiness, provided the Panel with an
analysis of accession standards, a multi-disciplinary review
of relevant data, and information about medical treatment
for gender dysphoria and gender transition-related medical care. These groups reported regularly to the Panel
and responded to numerous queries for additional information and analysis to support the Panel’s review
and deliberations. A separate working group tasked
with enhancing the lethality of our Armed Forces also

 148a
provided a briefing to the Panel on their work relating
to retention standards.
The Panel met with and received input from transgender Service members, commanders of transgender
Service members, military medical professionals, and
civilian medical professionals with experience in the
care and treatment of individuals with gender dysphoria. The Panel also reviewed information and analyses
about gender dysphoria, the treatment of gender dysphoria, and the effects of currently serving individuals
with gender dysphoria on military effectiveness, unit
cohesion, and resources. Unlike past reviews, the
Panel’s analysis was informed by the Department’s own
data and experience obtained since the Carter policy
took effect.
To fulfill its mandate, the Panel addressed three
questions:

•

Should the Department of Defense access transgender individuals?

•

Should the Department allow transgender individuals to transition gender while serving, and if
so, what treatment should be authorized?

•

How should the Department address transgender individuals who are currently serving?

After extensive review and deliberation, which included evidence in support of and against the Panel’s
recommendations, the Panel exercised its professional
military judgment and made recommendations. The
Department considered those recommendations and the
information underlying them, as well as additional information within the Department, and now proposes the
following policy consistent with those recommendations.

 149a
Recommended Policy

To maximize military effectiveness and lethality, the
Department, after consultation with and the concurrence of the Department of Homeland Security, recommends cancelling the Carter policy and, as explained
below, adopting a new policy with respect to the accession and retention of transgender persons.
The Carter policy assumed that transgender persons
were generally qualified for service and that their accession and retention would not negatively impact military effectiveness. As noted earlier, Secretary Carter
directed the TSRWG, the group charged with evaluating, and making recommendations on, transgender service, to “start with the presumption that transgender
persons can serve openly without adverse impact on
military effectiveness and readiness, unless and except
where objective practical impediments are identified.”50
Where necessary, standards were adjusted or relaxed to
accommodate service by transgender persons. The following analysis makes no assumptions but instead applies the relevant standards applicable to everyone to
determine the extent to which transgender persons are
qualified for military duty.
For the following reasons, the Department concludes
that transgender persons should not be disqualified
from service solely on account of their transgender
status, provided that they, like all other Service members, are willing and able to adhere to all standards,
including the standards associated with their biological
sex. With respect to the subset of transgender persons
Memorandum from Ashton Carter, Secretary of Defense,
“Transgender Service Members” (July 28, 2015).
50

 150a
who have been diagnosed with gender dysphoria, however, those persons are generally disqualified unless,
depending on whether they are accessing or seeking
retention, they can demonstrate stability for the prescribed period of time; they do not require, and have not
undergone, a change of gender; and they are otherwise
willing and able to meet all military standards, including those associated with their biological sex. In order
to honor its commitment to current Service members
diagnosed with gender dysphoria, those Service members who were diagnosed after the effective date of the
Carter policy and before any new policy takes effect will
not be subject to the policy recommended here.
Discussion of Standards
The standards most relevant to the issue of service
by transgender persons fall into three categories:
mental health standards, physical health standards, and
sex-based standards. Based on these standards, the
Department can assess the extent to which transgender
persons are qualified for military service and, in light of
that assessment, recommend appropriate policies.
A.

Mental Health Standards

Given the extreme rigors of military service and
combat, maintaining high standards of mental health is
essential to military effectiveness and lethality. The
immense toll that the burden and experience of combat
can have on the human psyche cannot be overstated.
Therefore, putting individuals into battle, who might be
at increased risk of psychological injury, would be
reckless, not only for those individuals, but for the
Service members who serve beside them as well.

 151a
The Department’s experience with the mental health
issues arising from our wars in Afghanistan and Iraq,
including post-traumatic stress disorder (PTSD), only
underscores the importance of maintaining high levels
of mental health across the force. PTSD has reached
as high as 2.8% of all active duty Service members, and
in 2016, the number of active duty Service members
with PTSD stood at 1.5%.51 Of all Service members in
the active component, 7.5% have been diagnosed with a
mental health condition of some type. 52 The Department is mindful of these existing challenges and must
exercise caution when considering changes to its mental
health standards.
Most mental health conditions and disorders are
automatically disqualifying for accession absent a waiver.
For example, persons with a history of bipolar disorder,
personality disorder, obsessive-compulsive disorder, suicidal behavior, and even body dysmorphic disorder (to
name a few) are barred from entering into military service, unless a waiver is granted. 53 For a few conditions,
however, persons may enter into service without a waiver if they can demonstrate stability for 24 to 36 continuous months preceding accession. Historically, a
person is deemed stable if they are without treatment,
symptoms, or behavior of a repeated nature that impaired social, school, or work efficiency for an extended
period of several months. Such conditions include depressive disorder (stable for 36 continuous months) and
Deployment Health Clinical Center, “Mental Health Disorder
Prevalence among Active Duty Service Members in the Military
Health System, Fiscal Years 2005-2016” (Jan. 2017).
52
Id.
53
DoDI 6130.03 at 47-48.
51

 152a
anxiety disorder (stable for 24 continuous months). 54
Requiring a period of stability reduces, but does not
eliminate, the likelihood that the individual’s depression
or anxiety will return.
Historically, conditions associated with transgender
individuals have been automatically disqualifying absent a waiver. Before the changes directed by Secretary Carter, military mental health standards barred
persons with a “[h]istory of psychosexual conditions,
including but not limited to transsexualism, exhibitionism, transvestism, voyeurism, and other paraphilias.” 55
These standards, however, did not evolve with changing
understanding of transgender mental health. Today,
transsexualism is no longer considered by most mental
health practitioners as a mental health condition. According to the APA, it is not a medical condition for
persons to identify with a gender that is different from
their biological sex. 56 Put simply, transgender status
alone is not a condition.
Gender dysphoria, by contrast, is a mental health
condition that can require substantial medical treatment. Many individuals who identify as transgender
are diagnosed with gender dysphoria, but “[n]ot all
transgender people suffer from gender dysphoria and
that distinction,” according to the APA, ‘‘is important to
keep in mind.”57 The DSM-5 defines gender dysphoria
Id.
Id. at 48.
56
DSM-5 at 452-53.
57
American Psychiatric Association, “Expert Q & A: Gender Dysphoria,” available at https://www.psychiatry.org/patients-families/
gender-dysphoria/expert-qa (last visited Feb. 14, 2018). Conversely,
not all persons with gender dysphoria are transgender. “For ex54
55

 153a
as a “marked incongruence between one’s experience/
expressed gender and assigned gender, of at least
6 months duration,” that is manifested in various specified ways. 58 According to the APA, the “condition is
associated with clinically significant distress or impairment in social, occupational, or other important areas of
functioning.”59
Transgender persons with gender dysphoria suffer
from high rates of mental health conditions such as
anxiety, depression, and substance use disorders.60 High
rates of suicide ideation, attempts, and completion among
people who are transgender are also well documented in
the medical literature, with lifetime rates of suicide
attempts reported to be as high as 41% (compared to

ample, some men who are disabled in combat, especially if their
injury includes genital wounds, may feel that they are no longer
men because their bodies do not conform to their concept of manliness. Similarly, a woman who opposes plastic surgery, but who
must undergo mastectomy because of breast cancer, may find that
she requires reconstructive breast surgery in order to resolve
gender dysphoria arising from the incongruence between her body
without breasts and her sense of herself as a woman.” M. Jocelyn
Elders, George R. Brown, Eli Coleman, Thomas Kolditz & Alan
Steinman, “Medical Aspects of Transgender Military Service,”
Armed Forces & Society, p. 5 n.22 (Mar. 2014).
58
DSM-5 at 452.
59
DSM-5 at 453.
60
Cecilia Dhejne, Roy Van Vlerken, Gunter Heylens & Jon Arcelus, “Mental health and gender dysphoria: A review of the literature,” International Review of Psychiatry, Vol. 28, pp. 44-57 (2016);
George R. Brown & Kenneth T. Jones, “Mental Health and Medical
Health Disparities in 5135 Transgender Veterans Receiving Healthcare in the Veterans Health Administration: A Case-Control Study,”
LGBT Health, Vol. 3, p. 128 (Apr. 2016).

 154a
4.6% for the general population). 61 According to a 2015
survey, the rate skyrockets to 57% for transgender
individuals without a supportive family. 62 The Department is concerned that the stresses of military life,
including basic training, frequent moves, deployment to
war zones and austere environments, and the relentless
physical demands, will be additional contributors to
suicide behavior in people with gender dysphoria. In
fact, there is recent evidence that military service can
be a contributor to suicidal thoughts. 63
Ann P. Haas, Philip L. Rodgers & Jody L. Herman, Suicide
Attempts among Transgender and Gender Non-Conforming Adults:
Findings of the National Transgender Discrimination Survey, p. 2
(American Foundation for Suicide Prevention and The Williams
Institute, University of California, Los Angeles, School of Law
2014), available at https://williamsinstitute.law.ucla.edu/wp-content/
uploads/AFSP-Williams-Suicide-Report-Final.pdf; H.G. Virupaksha,
Daliboyina Muralidhar & Jayashree Ramakrishna, “Suicide and
Suicide Behavior among Transgender Persons,” Indian Journal of
Psychological Medicine, Vol. 38, pp. 505-09 (2016); Claire M.
Peterson, Abigail Matthews, Emily Copps-Smith & Lee Ann Conard,
“Suicidality, Self-Harm, and Body Dissatisfaction in Transgender
Adolescents and Emerging Adults with Gender Dysphoria,” Suicide
and Life Threatening Behavior, Vol. 47, pp. 475-482 (Aug. 2017).
62
Ann P. Haas, Philip L. Rodgers & Jody L. Herman, Suicide
Attempts among Transgender and Gender Non-Conforming Adults:
Findings of the National Transgender Discrimination Survey,
pp. 2, 12 (American Foundation for Suicide Prevention and The
Williams Institute, University of California, Los Angeles, School of
Law 2014), available at https://williamsinstitute.law.ucla.edu/wpcontent/uploads/AFSP-Williams-Suicide-Report-Final.pdf.
63
Raymond P. Tucker, Rylan J. Testa, Mark A. Reger, Tracy L.
Simpson, Jillian C. Shipherd, & Keren Lehavot, “Current and
Military-Specific Gender Minority Stress Factors and Their Relationship with Suicide Ideation in Transgender Veterans,” Suicide
and Life Threatening Behavior DOI: 10.1111/sltb.12432 (epub ahead
61

 155a
Preliminary data of Service members with gender
dysphoria reflect similar trends. A review of the administrative data indicates that Service members with gender
dysphoria are eight times more likely to attempt suicide
than Service members as a whole (12% versus 1.5%).64
Service members with gender dysphoria are also nine
times more likely to have mental health encounters than
the Service member population as a whole (28.1 average
encounters per Service member versus 2.7 average encounters per Service member). 65 From October 1, 2015
to October 3, 2017, the 994 active duty Service members
diagnosed with gender dysphoria accounted for 30,000
mental health visits. 66
It is widely believed by mental health practitioners
that gender dysphoria can be treated. Under commonly accepted standards of care, treatment for gender
dysphoria can include: psychotherapy; social transition
—also known as “real life experience”—to allow patients to live and work in their preferred gender without
any hormone treatment or surgery; medical transition
to align secondary sex characteristics with patients’
preferred gender using cross-sex hormone therapy and
of print), pp. 1-10 (2018); Craig J. Bryan, AnnaBelle O. Bryan,
Bobbie N. Ray-Sannerud, Neysa Etienne & Chad E. Morrow,
“Suicide attempts before joining the military increase risk for
suicide attempts and severity of suicidal ideation among military
personnel and veterans,” Comprehensive Psychiatry), Vol. 55,
pp. 534-541 (2014).
64
Data retrieved from Military Health System data repository
(Oct. 2017).
65
Data retrieved from Military Health System data repository
(Oct. 2017). Study period was Oct. 1, 2015 to July 26, 2017.
66
Data retrieved from Military Health System data repository
(Oct. 2017).

 156a
hair removal; and surgical transition—also known as sex
reassignment surgery—to make the physical body—both
primary and secondary sex characteristics—resemble as
closely as possible patients’ preferred gender. 67 The
purpose of these treatment options is to alleviate the
distress and impairment of gender dysphoria by seeking
to bring patients’ physical characteristics into alignment
with their gender identity—that is, one’s inner sense of
one’s own gender.68
Cross-sex hormone therapy is a common medical
treatment associated with gender transition that may
be commenced following a diagnosis of gender dysphoria. 69 Treatment for women transitioning to men inRAND Study at 5-7, Appendices A & C; see also Hayes Directory, “Sex Reassignment Surgery for the Treatment of Gender
Dysphoria,” p. 1 (May 15, 2014) (“The full therapeutic approach to
[gender dysphoria] consists of 3 elements or phases, typically in the
following order: (1) hormones of the desired gender; (2) real-life
experience for 12 months in the desired role; and (3) surgery to
change the genitalia and other sex characteristics (e.g., breast reconstruction or mastectomy). However, not everyone with [gender dysphoria] needs or wants all elements of this triadic approach.”); Irene Folaron & Monica Lovasz, “Military Considerations in Transsexual Care of the Active Duty Member,” Military
Medicine, Vol. 181, p. 1183 (Oct. 2016) (“The Endocrine Society
proposes a sequential approach in transsexual care to optimize
mental health and physical outcomes. Generally, they recommend
initiation of psychotherapy, followed by cross-sex hormone treatments, then [sex reassignment surgery].”).
68
RAND Study at 73.
69
Wylie C. Hembree, Peggy Cohen-Kettenis, Lous Gooren, Sabine Hannema, Walter Meyer, M. Hassan Murad, Stephen Rosenthal, Joshua Safer, Vin Tangpricha, & Guy T’Sjoen, “Endocrine
Treatment of Gender-Dysphoric/Gender Incongruent Persons: An
Endocrine Society Clinical Practice Guideline.’’ The Journal of
67

 157a
volves the administration of testosterone, whereas treatment for men transitioning to women requires the blocking of testosterone and the administration of estrogens.70
The Endocrine Society’s clinical guidelines recommend
laboratory bloodwork every 90 days for the first year of
treatment to monitor hormone levels. 71
As a treatment for gender dysphoria, sex reassignment surgery is “a unique intervention not only in psychiatry but in all of medicine.”72 Under existing Department guidelines implementing the Carter policy, men
transitioning to women may obtain an orchiectomy (surgical removal of the testicles), a penectomy (surgical
removal of the penis), a vaginoplasty (surgical creation
of a vagina), a clitoroplasty (surgical creation of a clitoris), and a labiaplasty (surgical creation of the labia).
Women transitioning to men may obtain a hysterectomy
(surgical removal of the uterus), a mastectomy (surgical
removal of the breasts), a metoidioplasty (surgical enlargement of the clitoris), a phalloplasty (surgical creaClinical Endocrinology & Metabolism, Vol. 102, pp. 3869-3903
(Nov. 2017).
70
Id. at 3885-3888.
71
Id.
72
Ceclilia Dhejne, Paul Lichtenstein, Marcus Boman, Anna L.
Johansson, Niklas Långström & Mikael Landén, “Long-Term
Follow-Up of Transsexual Persons Undergoing Sex Reassignment
Surgery: Cohort Study in Sweden,” PLoS One, Vol. 6, pp. 1-8
(Feb. 2011); see also Hayes Directory, “Sex Reassignment Surgery
for the Treatment of Gender Dysphoria,” p. 2 (May 15, 2014) (noting that gender dysphoria “does not readily fit traditional concepts
of medical necessity since research to date has not established
anatomical or physiological anomalies associated with [gender dysphoria]”); Hayes Annual Review, “Sex Reassignment Surgery for
the Treatment of Gender Dysphoria” (Apr. 18, 2017).

 158a
tion of a penis), a scrotoplasty (surgical creation of a
scrotum) and placement of testicular prostheses, a urethroplasty (surgical enlargement of the urethra), and a
vaginectomy (surgical removal of the vagina). In addition, the following cosmetic procedures may be provided at military treatment facilities as well: abdominoplasty, breast augmentation, blepharoplasty (eyelid
lift), hair removal, face lift, facial bone reduction, hair
transplantation, liposuction, reduction thyroid chondroplasty, rhinoplasty, and voice modification surgery. 73
The estimated recovery time for each of the surgical
procedures, even assuming no complications, can be
substantial. For example, assuming no complications,
the recovery time for a hysterectomy is up to eight
weeks; a mastectomy is up to six weeks; a phalloplasty
is up to three months; a metoidioplasty is up to eight
weeks; an orchiectomy is up to six weeks; and a vaginoplasty is up to three months. 74 When combined with
12 continuous months of hormone therapy, which is

Memorandum from Defense Health Agency, “Information
Memorandum: Interim Defense Health Agency Procedures for
Reviewing Requests for Waivers to Allow Supplemental Health
Care Program Coverage of Sex Reassignment Surgical Procedures” (Nov. 13, 2017); see also RAND Study at Appendix C.
74
University of California, San Francisco, Center of Excellence
for Transgender Health, “Guidelines for the Primary and GenderAffirming Care of Transgender and Gender Nonbinary People,”
available at http://transhealth.ucsf.edu/trans?page=guidelines-home
(last visited Feb. 16, 2018); Discussion with Dr. Loren Schechter,
Visiting Clinical Professor of Surgery, University of Illinois at
Chicago (Nov. 9, 2017).
73

 159a
required prior to genital surgery, 75 the total time necessary for surgical transition can exceed a year.
Although relatively few people who are transgender
undergo genital reassignment surgeries (2% of transgender men and 10% of transgender women), we have to
consider that the rate of complications for these surgeries is significant, which could increase a transitioning Service member’s unavailability.76 Even according
to the RAND study, 6% to 20% of those receiving vaginoplasty surgery experience complications, meaning
that “between three and 11 Service members per year
would experience a long-term disability from gender reassignment surgery.”77 The RAND study further notes
that of those receiving phalloplasty surgery, as many as
25%—one in four—will have complications. 78
The prevailing judgment of mental health practitioners is that gender dysphoria can be treated with the
transition-related care described above. While there
are numerous studies of varying quality showing that
this treatment can improve health outcomes for individuals with gender dysphoria, the available scientific
RAND Study at 80; see also Irene Folaron & Monica Lovasz,
“Military Considerations in Transsexual Care of the Active Duty
Member,” Military Medicine, Vol. 181, p. 1184 (Oct. 2016) (noting
that Endocrine Society criteria “require that the patient has been
on continuous cross-sex hormones and has had continuous [real life
experience] or psychotherapy for the past 12 months”).
76
Sandy E. James, Jody L. Herman, Susan Rankin, Mara Keisling, Lisa Mottet & Ma’ayan Anafi, The Report of the 2015 U.S.
Transgender Survey, pp. 100-103 (National Center for Transgender Equality 2016) available at https://www.transequality.org/
sites/default/files/docs/USTS-Full-Report-FINAL.PDF.
77
RAND Study at 40-41.
78
Id. at 41.
75

 160a
evidence on the extent to which such treatments fully
remedy all of the issues associated with gender dysphoria
is unclear. Nor do any of these studies account for the
added stress of military life, deployments, and combat.
As recently as August 2016, the Centers for Medicare
and Medicaid Services (CMS) conducted a comprehensive
review of the relevant literature, over 500 articles, studies, and reports, to determine if there was “sufficient
evidence to conclude that gender reassignment surgery
improves health outcomes for Medicare beneficiaries
with gender dysphoria.”79 After reviewing the universe
of literature regarding sex reassignment surgery, CMS
identified 33 studies sufficiently rigorous to merit further
review, and of those, “some were positive; others were
negative.”80 “Overall,” according to CMS, “the quality
and strength of evidence were low due to mostly observational study designs with no comparison groups, subjective endpoints, potential confounding . . . , small sample sizes, lack of validated assessment tools, and considerable [number of study subjects] lost to follow-up.”81
With respect to whether sex reassignment surgery was
“reasonable and necessary” for the treatment of gender
dysphoria, CMS concluded that there was “not enough
high quality evidence to determine whether gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria and whether
Tamara Jensen, Joseph Chin, James Rollins, Elizabeth Koller,
Linda Gousis & Katherine Szarama, “Final Decision Memorandum
on Gender Reassignment Surgery for Medicare Beneficiaries with
Gender Dysphoria,” Centers for Medicare & Medicaid Services,
p. 9 (Aug. 30, 2016) (“CMS Report”).
80
Id. at 62.
81
Id.
79

 161a
patients most likely to benefit from these types of
surgical intervention can be identified prospectively.”82
Importantly, CMS identified only six studies as potentially providing ‘‘useful information” on the effectiveness of sex reassignment surgery. According to
CRS, “the four best designed and conducted studies
that assessed the quality of life before and after surgery
using validated (albeit, non-specific) psychometric studies did not demonstrate clinically significant changes
or differences in psychometric test results after [sex
reassignment surgery].”83 Additional studies found that
the “cumulative rates of requests for surgical reassignment reversal or change in legal status” were between
2.2% and 3.3%.84
A sixth study, which came out of Sweden, is one of
the most robust because it is a ‘‘nationwide populationbased, long-term follow-up of sex-reassigned transsexual
persons.”85 The study found increased mortality and
Id. at 65. CMS did not conclude that gender reassignment
surgery can never be necessary and reasonable to treat gender
dysphoria. To the contrary, it made clear that Medicare insurers
could make their own “determination of whether or not to cover
gender reassignment surgery based on whether gender reassignment surgery is reasonable and necessary for the individual beneficiary after considering the individual’s specific circumstances.”
Id. at 66. Nevertheless, CMS did decline to require all Medicare
insurers to cover sex reassignment surgeries because it found
insufficient scientific evidence to conclude that such surgeries improve health outcomes for persons with gender dysphoria.
83
Id. at 62.
84
Id.
85
Ceclilia Dhejne, Paul Lichtenstein, Marcus Boman, Anna L.
Johansson, Niklas Långström & Mikael Landén, “Long-Term
Follow-Up of Transsexual Persons Undergoing Sex Reassignment
82

 162a
psychiatric hospitalization for patients who had undergone sex reassignment surgery as compared to a healthy
control group.86 As described by CMS: ‘‘The mortality was primarily due to completed suicides (19.1-fold
greater than in [the control group]), but death due to
neoplasm and cardiovascular disease was increased 2 to
2.5 times as well. We note, mortality from this patient
population did not become apparent until after 10 years.
The risk for psychiatric hospitalization was 2.8 times
Surgery: Cohort Study in Sweden,” PLoS One, Vol. 6, p. 6 (Feb.
2011); see also id. (‘‘Strengths of this study include nationwide
representativity over more than 30 years, extensive follow-up time,
and minimal loss to follow-up. . . . Finally, whereas previous
studies either lack a control group or use standardised mortality
rates or standarised incidence rates as comparisons, we selected
random population controls matched by birth year, and either birth
or final sex.”).
86
Id. at 7; see also at 6 (“Mortality from suicide was strikingly
high among sex-reassigned persons, also after adjustment for prior
psychiatric morbidity. In line with this, sex-reassigned persons
were at increased risk for suicide attempts. Previous reports suggest that transsexualism is a strong risk factor for suicide, also after sex reassignment, and our long-term findings support the need
for continued psychiatric follow-up for persons at risk to prevent
this. Inpatient care for psychiatric disorders was significantly
more common among sex-reassigned persons than among matched
controls, both before and after sex reassignment. It is generally
accepted that transsexuals have more psychiatric ill-health than
the general population prior to the sex reassignment. It should
therefore come as no surprise that studies have found high rates of
depression, and low quality of life, also after sex reassignment.
Notably, however, in this study the increased risk for psychiatric
hospitalization persisted even after adjusting for psychiatric hospitalization prior to sex reassignment. This suggests that even
though sex reassignment alleviates gender dysphoria, there is a need
to identify and treat co-occurring psychiatric morbidity in transsexual persons not only before but also after sex reassignment.”).

 163a
greater than in controls even after adjustment for prior
psychiatric disease (18%). The risk for attempted suicide
was greater in male-to-female patients regardless of the
gender of the control.”87
According to the Hayes Directory, which conducted
a review of 19 peer-reviewed studies on sex reassignment surgery, the “evidence suggests positive benefits,”
including “decreased [gender dysphoria], depression
and anxiety, and increased [quality of life],” but “because of serious limitations,” these findings “permit only
weak conclusions.”88 It rated the quality of evidence as
“very low” due to the numerous limitations in the studies and concluded that there is not sufficient “evidence
to establish patient selection criteria for [sex reassignment surgery] to treat [gender dysphoria].”89
CMS Report at 62. It bears noting that the outcomes for mortality and suicide attempts differed “depending on when sex reassignment was performed: during the period 1973-1988 or 19892003.” Ceclilia Dhejne, Paul Lichtenstein, Marcus Boman, Anna
L. Johansson, Niklas Långström & Mikael Landén, “Long-Term
Follow-Up of Transsexual Persons Undergoing Sex Reassignment
Surgery: Cohort Study in Sweden,” PLoS One, Vol. 6, p. 5 (Feb.
2011). Even though both mortality and suicide attempts were
greater for transsexual persons than the healthy control group
across both time periods, this did not reach statistical significance
during the 1989-2003 period. One possible explanation is that
mortality rates for transsexual persons did not begin to diverge
from the healthy control group until after 10 years of follow-up, in
which case the expected increase in mortality would not have been
observed for most of the persons receiving sex reassignment surgeries from 1989-2003. Another possible explanation is that treatment was of a higher quality from 1989-2003 than from 1973-1988.
88
Hayes Directory, “Sex Reassignment Surgery for the Treatment of Gender Dysphoria,” p. 4 (May 15, 2014).
89
Id. at 3.
87

 164a
With respect to hormone therapy, the Hayes Directory examined 10 peer-reviewed studies and concluded
that a “substantial number of studies of cross-sex hormone therapy each show some positive findings suggesting improvement in well-being after cross-sex
hormone therapy.”90 Yet again, it rated the quality of
evidence as “very low” and found that the “evidence is
insufficient to support patient selection criteria for hormone therapy to treat [gender dysphoria].”91 Importantly, the Hayes Directory also found: “Hormone
therapy and subsequent [sex reassignment surgery]
failed to bring overall mortality, suicide rates, or death
from illicit drug use in [male-to-female] patients close to
rates observed in the general male population. It is
possible that mortality is nevertheless reduced by these
treatments, but that cannot be determined from the
available evidence.” 92
In 2010, Mayo Clinic researchers conducted a comprehensive review of 28 studies on the use of cross-sex
hormone therapy in sex reassignment and concluded
that there was “very low quality evidence” showing that
such therapy “likely improves gender dysphoria, psychological functioning and comorbidities, sexual function and overall quality of life.”93 Not all of the studies
Hayes Directory, “Hormone Therapy for the Treatment of
Gender Dysphoria,” pp. 2, 4 (May 19, 2014).
91
Id. at 4.
92
Id. at 3.
93
Mohammad Hassan Murad, Mohamed B. Elamin, Magaly
Zumaeta Garcia, Rebecca J. Mullan, Ayman Murad, Patricia J. Erwin & Victor M. Montori, “Hormonal therapy and sex reassignment:
a systematic review and meta-analysis of qualify of life and psychosocial outcomes,” Clinical Endocrinology, Vol. 72, p. 214 (2010).
90

 165a
showed positive results, but overall, after pooling the
data from all of the studies, the researchers showed that
80% of patients reported improvement in gender dysphoria, 78% reported improvement in psychological
symptoms, and 80% reported improvement in quality of
life, after receiving hormone therapy. 94 Importantly,
however, “[s]uicide attempt rates decreased after sex
reassignment but stayed higher than the normal population rate.”95
The authors of the Swedish study discussed above
reached similar conclusions: “This study found substantially higher rates of overall mortality, death from cardiovascular disease and suicide, suicide attempts, and
psychiatric hospitali[z]ations in sex-reassigned transsexual individuals compared to a healthy control population. This highlights that post[-]surgical transsexuals are a risk group that need long-term psychiatric and
somatic follow-up. Even though surgery and hormonal
therapy alleviates gender dysphoria, it is apparently not
sufficient to remedy the high rates of morbidity and
mortality found among transsexual persons.”96
Even the RAND study, which the Carter policy is
based upon, confirmed that “[t]here have been no randomized controlled trials of the effectiveness of various
forms of treatment, and most evidence comes from retro-

Id. at 216.
Id.
96
Ceclilia Dhejne, Paul Lichtenstein, Marcus Boman, Anna L.
Johansson, Niklas Långström & Mikael Landén, “Long-Term
Follow-Up of Transsexual Persons Undergoing Sex Reassignment
Surgery: Cohort Study in Sweden,” PLoS One, Vol. 6, pp. 1-8
(Feb. 2011).
94
95

 166a
spective studies.” 97 Although noting that “[m]ultiple
observational studies have suggested significant and
sometimes dramatic reductions in suicidality, suicide attempts, and suicides among transgender patients after
receiving transition-related treatment,” RAND made
clear that “none of these studies were randomized
controlled trials (the gold standard for determining
treatment efficacy).” 98 ‘‘In the absence of quality randomized trial evidence,” RAND concluded, ‘‘it is difficult to fully assess the outcomes of treatment for [gender dysphoria].”99
Given the scientific uncertainty surrounding the efficacy of transition-related treatments for gender dysphoria, it is imperative that the Department proceed cautiously in setting accession and retention standards for
persons with a diagnosis or history of gender dysphoria.
B.

Physical Health Standards

Not only is maintaining high standards of mental
health critical to military effectiveness and lethality,
maintaining high standards of physical health is as well.
Although technology has done much to ease the physical
demands of combat in some military specialties, war
very much remains a physically demanding endeavor.
Service members must therefore be physically prepared to endure the rigors and hardships of military
service, including potentially combat. They must be
able to carry heavy equipment sometimes over long
distances; they must be able to handle heavy machinery;
RAND Study at 7.
Id. at 10 (citing only to a California Department of Insurance
report).
99
Id.
97
98

 167a
they must be able to traverse harsh terrain or survive in
ocean waters; they must be able to withstand oppressive
heat, bitter cold, rain, sleet, and snow; they must be able
to endure in unsanitary conditions, coupled with lack of
privacy for basic bodily functions, sometimes with little
sleep and sustenance; they must be able to carry their
wounded comrades to safety; and they must be able to
defend themselves against those who wish to kill them.
Above all, whether they serve on the frontlines or in
relative safety in non-combat positions, every Service
member is important to mission accomplishment and
must be available to perform their duties globally
whenever called upon. The loss of personnel due to illness, disease, injury, or bad health diminishes military
effectiveness and lethality. The Department’s physical
health standards are therefore designed to minimize the
odds that any given Service member will be unable to
perform his or her duties in the future because of illness, disease, or injury. As noted earlier, those who
seek to enter military service must be free of contagious
diseases; free of medical conditions or physical defects
that could require treatment, hospitalization, or eventual separation from service for medical unfitness;
medically capable of satisfactorily completing required
training; medically adaptable to the military environment; and medically capable of performing duties without aggravation of existing physical defects or medical
conditions. 100 To access recruits with higher rates of
anticipated unavailability for deployment thrusts a heavier burden on those who would deploy more often.

100

DoDI 6130.03 at 2.

 168a
Historically, absent a waiver, the Department has
barred from accessing into the military anyone who had
undergone chest or genital surgery (e.g., removal of the
testicles or uterus) and anyone with a history of major
abnormalities or defects of the chest or genitalia, including hermaphroditism and pseudohermaphroditism.101
Persons with conditions requiring medications, such as
anti-depressants and hormone treatment, were also
disqualified from service, unless a waiver was granted.102
These standards have long applied uniformly to all
persons, regardless of transgender status. The Carter
policy, however, deviates from these uniform standards
by exempting, under certain conditions, treatments associated with gender transition, such as sex reassignment surgery and cross-sex hormone therapy. For example, under the Carter policy, an applicant who has
received genital reconstruction surgery may access
without a waiver if a period of 18 months has elapsed
since the date of the most recent surgery, no functional
limitations or complications persist, and no additional
surgery is required. In contrast, an applicant who received similar surgery following a traumatic injury is
disqualified from military service without a waiver. 103
Similarly, under the Carter policy, an applicant who is
presently receiving cross-sex hormone therapy postgender transition may access without a waiver if the applicant has been stable on such hormones for 18 months.
In contrast, an applicant taking synthetic hormones for

101
102
103

Id. at 25-27.
Id. at 46-48.
Id. at 26-27.

 169a
the treatment of hypothyroidism is disqualified from
military service without a waiver. 104
C.

Sex-Based Standards

Women have made invaluable contributions to the
defense of the Nation throughout our history. These
contributions have only grown more significant as the
number of women in the Armed Forces has increased
and as their roles have expanded. Today, women account for 17.6% of the force,105 and now every position,
including combat arms positions, is open to them.
The vast majority of military standards make no
distinctions between men and women. Where biological differences between males and females are relevant,
however, military standards do differentiate between
them. The Supreme Court has acknowledged the lawfulness of sex-based standards that flow from legitimate
biological differences between the sexes.106 These sexbased standards ensure fairness, equity, and safety;
satisfy reasonable expectations of privacy; reflect common practice in society; and promote core military valId. at 41.
Defense Manpower Data Center, Active and Reserve Master
Files (Dec. 2017).
106
For example, in United States v. Virginia, the Court noted
approvingly that “[a]dmitting women to [the Virginia Military Institute] would undoubtedly require alterations necessary to afford
members of each sex privacy from the other sex in living arrangements, and to adjust aspects of the physical training programs.”
518 U.S. 515, 550-51 n.19 (1996) (citing the statute that requires the
same standards for women admitted to the service academies as for
the men, “except for those minimum essential adjustments in such
standards required because of physiological differences between
male and female individuals”).
104
105

 170a
ues of dignity and respect between men and women—all
of which promote good order, discipline, steady leadership, unit cohesion, and ultimately military effectiveness and lethality.
For example, anatomical differences between males
and females, and the reasonable expectations of privacy
that flow from those differences, at least partly account
for the laws and regulations that require separate
berthing, bathroom, and shower facilities and different
drug testing procedures for males and females. 107 To
maintain good order and discipline, Congress has even
required by statute that the sleeping and latrine areas
provided for “male” recruits be physically separated
from the sleeping and latrine areas provided for “female” recruits during basic training and that access by
drill sergeants and training personnel “after the end of
the training day” be limited to persons of the “same sex
as the recruits” to ensure “after-hours privacy for recruits during basic training.”108

See, e.g., Department of the Army, Training and Doctrine
Command, TRADOC Regulation 350-6, “Enlisted Initial Entry
Training Policies and Administration,” p. 56 (Mar. 20, 2017); Department of the Air Force, Air Force Instruction 32-6005, “Unaccompanied Housing Management,” p. 35 (Jan 29., 2016); Department of the Army, Human Resources Command, AR 600-85, “Substance Abuse Program” (Dec. 28, 2012) (“Observers must . . .
[b]e the same gender as the Soldier being observed.”).
108
See 10 U.S.C. § 4319 (Army), 10 U.S.C. § 6931 (Navy), and
10 U.S.C. § 9319 (Air Force) (requiring the sleeping and latrine
areas provided for “male” recruits to be physically separated from
the sleeping and latrine areas provided for “female” recruits during
basic training); 10 U.S.C. § 4320 (Army), 10 U.S.C. § 6932 (Navy),
and 10 U.S.C. § 9320 (Air Force) (requiring that access by drill
107

 171a
In addition, physiological differences between males
and females account for the different physical fitness
and body fat standards that apply to men and women. 109
This ensures equity and fairness. Likewise, those same
physiological differences also account for the policies
that regulate competition between men and women in
military training and sports, such as boxing and combatives.110 This ensures protection from injury.
sergeants and training personnel “after the end of the training
day” be limited to persons of the “same sex as the recruits’’).
109
See, e.g., Department of the Army, Army Regulation 600-9,
“The Army Body Composition Program,” pp. 21-31 (June 28, 2013);
Department of the Navy, Office of the Chief of Naval Operations
Instruction 6110.IJ, “Physical Readiness Program,” p. 7 (July 11,
2011); Department of the Air Force, Air Force Instruction 36-2905,
“Fitness Program,” pp. 86-95, 106-146 (Aug. 27, 2015); Department
of the Navy, Marine Corps Order 6100.13, “Marine Corps Physical
Fitness Program,” (Aug. 1, 2008); Department of the Navy, Marine
Corps Order 6110.3A, “Marine Corps Body Composition and Military Appearance Program,” (Dec. 15, 2016); see also United States
Military Academy, Office of the Commandant of Cadets, “Physical
Program Whitebook AY 16-17,” p. 13 (specifying that, to graduate,
cadets must meet the minimum performance standard of 3:30 for
men and 5:29 for women on the Indoor Obstacle Course Test); Department of the Army, Training and Doctrine Command, TRADOC
Regulation 350-6, “Enlisted Initial Entry Training Policies and
Administration,” p. 56 (Mar. 20, 2017) (“Performance requirement
differences, such as [Army Physical Fitness Test] scoring are
based on physiological differences, and apply to the entire Army.”).
110
See, e.g., Headquarters, Department of the Anny, TC 3-25.150,
“Combatives,” p. A-15 (Feb. 2017) (“Due to the physiological difference between the sexes and in order to treat all Soldiers fairly
and conduct gender-neutral competitions, female competitors will
be given a 15 percent overage at weigh-in.”); id. (“In championships
at battalion-level and above, competitors are divided into eight
weight class brackets. . . . These classes take into account weight
and gender.”); Major Alex Bedard, Major Robert Peterson &

 172a
Uniform and grooming standards, to a certain extent, are also based on anatomical differences between
males and females. Even those uniform and grooming
standards that are not, strictly speaking, based on
physical biology nevertheless flow from longstanding
societal expectations regarding differences in attire and
grooming for men and women. 111
Ray Barone, “Punching Through Barriers: Female Cadets Integrated into Mandatory Boxing at West Point,” Association of the
United States Army (Nov. 16, 2017), https://www.ausa.org/articles/
punching-through-barriers-female-cadets-boxing-west-point (noting
that “[m]atching men and women according to weight may not adequately account for gender differences regarding striking force”
and that “[w]hile conducting free sparring, cadets must box someone of the same gender”); RAND Study at 57 (noting that, under
British military policy, transgender persons “can be excluded from
sports that organize around gender to ensure the safety of the
individual or other participants”); see also International Olympic
Committee Consensus Meeting on Sex Reassignment and Hyperandrogensim (Nov. 2015), https://stillmed.olympic.org/Documents/
Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_
meeting_on_sex_reassignment_and_hyperandrogenism -en.pdf;
NCAA Office of Inclusion; NCAA Inclusion of Transgender
Student-Athletes (Aug. 2011), https://www.ncaa.org/sites/default/files/
Transgender_Handbook_2011 _Final.pdf.
111
“The difference between men’s and women’s grooming policies
recognizes the difference between the sexes; sideburns for men,
different hairstyles and cosmetics for women. Establishing identical grooming and personal appearance standards for men and women would not be in the Navy’s best interest and is not a factor in
the assurance of equal opportunity.” Department of the Navy,
Navy Personnel Command, Navy Personnel Instruction 156651,
“Uniform Regulations,” Art. 2101.1 (July 7, 2017); see also Department of the Army, Army Regulation 670-1, “Wear and Appearance
of Army Uniforms and Insignia,’’ pp. 4-16 (Mar. 31, 2014); Department of the Air Force, Air Force Instruction 26-2903, “Dress and
Personal Appearance of Air Force Personnel,” pp. 17-27 (Feb. 9,

 173a
Because these sex-based standards are based on legitimate biological differences between males and females, it follows that a person’s physical biology should
dictate which standards apply. Standards designed for
biological males logically apply to biological males, not
biological females, and vice versa. When relevant, military practice has long adhered to this straightforwrard
and logical demarcation.
By contrast, the Carter policy deviates from this
longstanding practice by making military sex-based
standards contingent, not necessarily on the person’s
biological sex, but on the person’s gender marker in
DEERS, which can be changed to reflect the person’s
gender identity. 112 Thus, under the Carter policy, a
biological male who identifies as a female (and changes
his gender marker to reflect that gender) must be held
to the standards and regulations for females, even
though those standards and regulations are based on
female physical biology, not female gender identity.
The same goes for females who identify as males.
Gender identity alone, however, is irrelevant to standards that are designed on the basis of biological differences.
Rather than apply only to those transgender individuals who have altered their external biological characteristics to fully match that of their preferred gender,
under the Carter policy, persons need not undergo sex
reassignment surgery, or even cross-sex hormone ther2017); Department of the Navy, Marine Corps Order P1020.34G,
“Marine Corps Uniform Regulations,” pp. 1-9 (Mar. 31, 2003).
112
Department of Defense Instruction 1300.28, In-service Transition .for Service Members Identifying as Transgender, pp. 3-4
(June 30, 2016).

 174a
apy, in order to be recognized as, and thus subject to the
standards associated with, their preferred gender. A
male who identifies as female could remain a biological
male in every respect and still must be treated in all
respects as a female, including with respect to physical
fitness, facilities, and uniform and grooming. This scenario is not farfetched. According to the APA, not ‘‘all
individuals with gender dysphoria desire a complete
gender reassignment. . . . Some are satisfied with no
medical or surgical treatment but prefer to dress as the
felt gender in public.”113 Currently, of the 424 approved
Service member treatment plans, at least 36 do not include cross-sex hormone therapy or sex reassignment
surgery. 114 And it is questionable how many Service
members will obtain any type of sex reassignment surgery. According to a survey of transgender persons,
only 25% reported having had some form of transitionrelated surgery. 115
The variability and fluidity of gender transition undermine the legitimate purposes that justify different
biologically-based, male-female standards. For example, by allowing a biological male who retains male anatomy to use female berthing, bathroom, and shower facilities, it undermines the reasonable expectations of
privacy and dignity of female Service members. By
allowing a biological male to meet the female physical
fitness and body fat standards and to compete against
American Psychiatric Association, “Expert Q & A: Gender
Dysphoria,” available at https://www.psychiatry.org/patients-families/
gender-dysphoria/expert-qa (last visited Feb. 14, 2018).
114
Data reported by the Departments of the Army, Navy, and Air
Force (Oct. 2017).
115
Id.
113

 175a
females in gender-specific physical training and athletic
competition, it undermines fairness (or perceptions of
fairness) because males competing as females will likely
score higher on the female test than on the male test
and possibly compromise safety. By allowing a biological male to adhere to female uniform and grooming
standards, it creates unfairness for other males who
would also like to be exempted from male uniform and
grooming standards as a means of expressing their own
sense of identity.
These problems could perhaps be alleviated if a person’s preferred gender were recognized only after the
person underwent a biological transition. The concept
of gender transition is so nebulous, however, that drawing
any line—except perhaps at a full sex reassignment
surgery—would be arbitrary, not to mention at odds
with current medical practice, which allows for a wide
range of individualized treatment. In any event, rates
for genital surgery are exceedingly low—2% of transgender men and 10% of transgender women. 116 Only
up to 25% of surveyed transgender persons report having had some form of transition-related surgery.117 The
RAND study estimated that such rates “are typically
only around 20 percent, with the exception of chest
surgery among female-to-male transgender individuals.”118 Moreover, of the 424 approved Service member
Sandy E. James, Jody L. Herman, Susan Rankin, Mara Keisling, Lisa Mottet & Ma’ayan Anafi, The Report of the 2015 U.S.
Transgender Survey, pp. 100-103 (National Center for Transgender Equality 2016) available at https://www.transequality.org/
sites/default/files/docs/USTS-Full-Report-FINAL.PDF.
117
Id. at 100.
118
RAND Study at 21.
116

 176a
treatment plans available for study, 388 included
cross-sex hormone treatment, but only 34 non-genital
sex reassignment surgeries and one genital surgery
have been completed thus far. Only 22 Service members have requested a waiver for a genital sex reassignment surgery. 119
Low rates of full sex reassignment surgery and the
otherwise wide variation of transition-related treatment, with all the challenges that entails for privacy,
fairness, and safety, weigh in favor of maintaining a
bright line based on biological sex—not gender identity
or some variation thereof—in determining which sexbased standards apply to a given Service member. After all, a person’s biological sex is generally ascertainable through objective means. Moreover, this approach
will ensure that biologically-based standards will be applied uniformly to all Service members of the same
biological sex. Standards that are clear, coherent, objective, consistent, predictable, and uniformly applied
enhance good order, discipline, steady leadership, and
unit cohesion, which in turn, ensure military effectiveness and lethality.
New Transgender Policy
In light of the forgoing standards, all of which are
necessary for military effectiveness and lethality, as
well as the recommendations of the Panel of Experts,
the Department, in consultation with the Department of
Homeland Security, recommends the following policy:

Defense Health Agency, Supplemental Health Care Program
Data (Feb. 2018).
119

 177a
A.

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.

Transgender persons who have not transitioned to
another gender and do not have a history or current
diagnosis of gender dysphoria—i.e., they identify as a
gender other than their biological sex but do not currently experience distress or impairment of functioning
in meeting the standards associated with their biological sex—are eligible for service, provided that they, like
all other persons, satisfy all mental and physical health
standards and are capable of adhering to the standards
associated with their biological sex. This is consistent
with the Carter policy, under which a transgender person’s gender identity is recognized only if the person
has a diagnosis or history of gender dysphoria.
Although the precise number is unknown, the Department recognizes that many transgender persons
could be disqualified under this policy. And many
transgender persons who would not be disqualified may
nevertheless be unwilling to adhere to the standards
associated with their biological sex. But many have
served, and are serving, with great dedication under the
standards for their biological sex. As noted earlier,
8,980 Service members reportedly identify as transgender, and yet there are currently only 937 active duty
Service members who have been diagnosed with gender
dysphoria since June 30, 2016.

 178a
B.

Transgender Persons Who Require or Have
Undergone Gender Transition Are Disqualified.

Except for those who are exempt under this policy,
as described below in C.3, and except where waivers or
exceptions to policy are otherwise authorized, persons
who are diagnosed with gender dysphoria, either before
or after entry into service, and require transitionrelated treatment, or have already transitioned to their
preferred gender, should be disqualified from service.
In the Department’s military judgment, this is a necessary departure from the Carter policy for the following reasons:
1. Undermines Readiness. While transitionrelated treatments, including real life experience, crosssex hormone therapy, and sex reassignment surgery,
are widely accepted forms of treatment, there is considerable scientific uncertainty concerning whether
these treatments fully remedy, even if they may reduce,
the mental health problems associated with gender
dysphoria. Despite whatever improvements in condition may result from these treatments, there is evidence
that rates of psychiatric hospitalization and suicide behavior remain higher for persons with gender dysphoria, even after treatment, as compared to persons without gender dysphoria.120 The persistence of these problems is a risk for readiness.
Another readiness risk is the time required for
transition-related treatment and the impact on deployability. Although limited and incomplete because many
transitioning Service members either began treatment
before the Carter policy took effect or did not require
120

See supra at pp. 24-26.

 179a
sex reassignment surgery, currently available in-service
data already show that, cumulatively, transitioning
Service members in the Army and Air Force have
averaged 167 and 159 days of limited duty, respectively,
over a one-year period.121
Transition-related treatment that involves cross-sex
hormone therapy or sex reassignment surgery could
render Service members with gender dysphoria nondeployable for a significant period of time—perhaps
even a year—if the theater of operations cannot support
the treatment. For example, Endocrine Society guidelines for cross-sex hormone therapy recommend quarterly blood work and laboratory monitoring of hormone
levels during the first year of treatment. 122 Of the
424 approved Service member treatment plans available for study, almost all of them—91.5%—include the
prescription of cross-sex hormones.123 The period of potential non-deployability increases for those who undergo sex reassignment surgery. As described earlier,
Data reported by the Departments of the Army and Air Force
(Oct. 2017).
122
Wylie C. Hembree, Peggy Cohen-Kettenis, Lous Gooren, Sabine Hannema, Walter Meyer, M. Hassan Murad, Stephen Rosenthal,
Joshua Safer, Vin Tangpricha, & Guy T’Sjoen, “Endocrine Treatment of Gender-Dysphoric/Gender Incongruent Persons: An Endocrine Society Clinical Practice Guideline,” The Journal of Clinical
Endocrinology & Metabolism, Vol. 102, pp. 3869-3903 (Nov. 2017).
123
Data reported by the Departments of the Army, Navy, and Air
Force (Oct. 2017). Although the RAND study observed that British troops who are undergoing hormone therapy are generally able
to deploy if the “hormone dose is steady and there are no major
side effects,” it nevertheless acknowledged that “deployment to all
areas may not be possible, depending on the needs associated with
any medication (e.g., refrigeration).” RAND Study at 59.
121

 180a
the recovery time for the various sex reassignment procedures is substantial. For non-genital surgeries (assuming no complications), the range of recovery is between two and eight weeks depending on the type of
surgery, and for genital surgeries (again assuming no
complications), the range is between three and six months
before the individual is able to return to full duty. 124
When combined with 12 continuous months of hormone
tberapy, which is recommended prior to genital surgery,125 the total time necessary for sex reassignment
surgery could exceed a year. If the operational environment does not permit access to a lab for monitoring
hormones (and there is certainly debate over how
common this would be), then the Service member must be
prepared to forego treatment, monitoring, or the deployment. Either outcome carries risks for readiness.
Given the limited data, however, it is difficult to predict with any precision the impact on readiness of alFor example, assuming no complications, the recovery time for
a hysterectomy is up to eight weeks; a mastectomy is up to six
weeks; a phalloplasty is up to three months; a metoidioplasty is up
to 8 weeks; an orchiectomy is up to 6 weeks; and a vaginoplasty is
up to three months. See University of California, San Francisco,
Center of Excellence for Transgender Health, “Guidelines for the
Primary and Gender-Affirming Care of Transgender and Gender
Nonbinary People,” available at http://transhealth.ucsf.edu/trans?
page=guidelines-home (last visited Feb. 16, 2018); see also Discussion with Dr. Loren Schechter, Visiting Clinical Professor of Surgery, University of Illinois at Chicago (Nov. 9, 2017).
125
RAND Study at 80; see also id. at 7; Irene Folaron & Monica
Lovasz, “Military Considerations in Transsexual Care of the Active
Duty Member,” Military Medicine, Vol. 181, p. 1184 (Oct. 2016)
(noting that Endocrine Society criteria “require that the patient
has been on continuous cross-sex hormones and has had continuous
[real life experience] or psychotherapy for the past 12 months”).
124

 181a
lowing gender transition. Moreover, the input received
by the Panel of Experts varied considerably. On one
hand, some commanders with transgender Service members reported that, from the time of diagnosis to the
completion of a transition plan, the transitioning Service members would be non-deployable for two to twoand-a-half years. 126 On the other hand, some commanders, as well as transgender Service members
themselves, reported that transition-related treatment
is not a burden on unit readiness and could be managed
to avoid interfering with deployments, with one commander even reporting that a transgender Service
member with gender dysphoria under his command
elected to postpone surgery in order to deploy.127 This
conclusion was echoed by some experts in endocrinology who found no harm in stopping or adjusting hormone therapy treatment to accommodate deployment
during the first year of hormone use. 128 Of course,
postponing treatment, especially during a combat deployment, has risks of its own insofar as the treatment
is necessary to mitigate the clinically significant distress and impairment of functioning caused by gender
dysphoria. After all, “when Service members deploy
and then do not meet medical deployment fitness standards, there is risk for inadequate treatment within the
operational theater, personal risk due to potential inability to perform combat required skills, and the potential to be sent home from the deployment and render

126
127
128

Minutes, Transgender Review Panel (Oct. 13, 2017).
Id.
Minutes, Transgender Review Panel (Nov. 9, 2017).

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the deployed unit with less manpower.”129 In short, the
periods of transition-related nonavailability and the risks
of deploying untreated Service members with gender
dysphoria are uncertain, and that alone merits caution.
Moreover, most mental health conditions, as well as
the medication used to treat them, limit Service members’ ability to deploy. Any DSM-5 psychiatric disorder with residual symptoms, or medication side effects,
which impair social or occupational performance, require a waiver for the Service member to deploy. 130
The same is true for mental health conditions that pose
a substantial risk for deterioration or recurrence in the
deployed environment. 131 In managing mental health
conditions while deployed, providers must consider the
risk of exacerbation if the individual were exposed to
trauma or severe operational stress. These determinations are difficult to make in the absence of evidence
on the impact of deployment on individuals with gender
dysphoria.132
The RAND study acknowledges that the inclusion of
individuals with gender dysphoria in the force will have
a negative impact on readiness. According to RAND,
Institute for Defense Analyses, “Force Impact of Expanding the
Recruitment of Individuals with Auditory Impairment,” pp. 60-61
(Apr. 2016).
130
Modification Thirteen to U.S. Central Command Individual
Protection and Individual, Unit Deployment Policy. Tab A, p. 8
(Mar. 2017).
131
Id.
132
See generally Memorandum from the Assistant Secretary
of Defense for Health Affairs, “Clinical Practice Guidance for
Deployment-Limiting Mental Disorders and Psychotropic Medications,” pp. 2-4 (Oct. 7, 2013).
129

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foreign militaries that allow service by personnel with
gender dysphoria have found that it is sometimes necessary to restrict the deployment of transitioning individuals, including those receiving hormone therapy and
surgery, to austere environments where their healthcare needs cannot be met.133 Nevertheless, RAND concluded that the impact on readiness would be minimal—
e.g., 0.0015% of available deployable labor-years across
the active and reserve components—because of the exceedingly small number of transgender Service members who would seek transition-related treatment. 134
Even then, RAND admitted that the information it cited
“must be interpreted with caution” because “much of the
current research on transgender prevalence and medical
treatment rates relies on self-reported, nonrepresentative
samples.” 135 Nevertheless, by RAND’s standard, the
readiness impact of many medical conditions that the
Department has determined to be disqualifying—from
bipolar disorder to schizophrenia—would be minimal
because they, too, exist only in relatively small numbers.136 And yet that is no reason to allow persons with
those conditions to serve.

RAND Study at 40.
Id. at 42.
135
Id. at 39.
136
According to the National Institute of Mental Health, 2.8% of
U.S. adults experienced bipolar disorder in the past year, and 4.4%
have experienced the condition at some time in their lives. National Institute of Mental Health, “Bipolar Disorder” (Nov. 2017)
https://www.nimh.nih.gov/health/statistics/bipolar-disorder.shtml.
The prevalence of schizophrenia is less than 1%. National Institute of Mental Health, “Schizophrenia” (Nov. 2017) https://www.
nimh.nih.gov/health/statistics/schizophrenia.shtml.
133
134

 184a
The issue is not whether the military can absorb periods of non-deployability in a small population; rather,
it is whether an individual with a particular condition
can meet the standards for military duty and, if not,
whether the condition can be remedied through treatment that renders the person non-deployable for as
little time as possible. As the Department has noted
before: “[W]here the operational requirements are
growing faster than available resources,” it is imperative that the force “be manned with Service members
capable of meeting all mission demands. The Services
require that every Service member contribute to full
mission readiness, regardless of occupation. In other
words, the Services require all Service members to be
able to engage in core military tasks, including the ability to deploy rapidly, without impediment or encumbrance.”137 Moreover, the Department must be mindful that “an increase in the number of non-deployable
military personnel places undue risk and personal burden on Service members qualified and eligible to deploy,
and negatively impacts mission readiness.”138 Further,
the Department must be attuned to the impact that high
numbers of non-deployable military personnel places on
families whose Service members deploy more often to
backfill or compensate for non-deployable persons.
In sum, the available information indicates that there
is inconclusive scientific evidence that the serious problems associated with gender dysphoria can be fully re137
Under Secretary of Defense for Personnel and Readiness,
“Fiscal Year 2016 Report to Congress on the Review of Enlistment
of Individuals with Disabilities in the Armed Forces,” p. 9 (Apr.
2016).
138
Id. at 10.

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medied through transition-related treatment and that,
even if it could, most persons requiring transitionrelated treatment could be non-deployable for a potentially significant amount of time. By this metric, Service members with gender dysphoria who need transitionrelated care present a significant challenge for unit
readiness.
2. Incompatible with Sex-Based Standards.
As discussed in detail earlier, military personnel policy
and practice has long maintained a clear line between
men and women where their biological differences are
relevant with respect to physical fitness and body fat
standards; berthing, bathroom, and shower facilities;
and uniform and grooming standards. This line promotes good order and discipline, steady leadership, unit
cohesion, and ultimately military effectiveness and lethality because it ensures fairness, equity, and safety;
satisfies reasonable expectations of privacy; reflects
common practice in the society from which we recruit;
and promotes core military values of dignity and respect
between men and women. To exempt Service members
from the uniform, biologically-based standards applicable
to their biological sex on account of their gender identity
would be incompatible with this line and undermine the
objectives such standards are designed to serve.
First, a policy that permits a change of gender without
requiring any biological changes risks creating unfairness, or perceptions thereof, that could adversely affect
unit cohesion and good order and discipline. It could be
perceived as discriminatory to apply different biologicallybased standards to persons of the same biological sex
based on gender identity, which is irrelevant to standards grounded in physical biology. For example, it

 186a
unfairly discriminates against biological males who
identify as male and are held to male standards to allow
biological males who identify as female to be held to
female standards, especially where the transgender
female retains many of the biological characteristics
and capabilities of a male. It is important to note here
that the Carter policy does not require a transgender
person to undergo any biological transition in order to
be treated in all respects in accordance with the person’s preferred gender. Therefore, a biological male
who identifies as female could remain a biological male
in every respect and still be governed by female standards. Not only would this result in perceived unfairness by biological males who identify as male, it would
also result in perceived unfairness by biological females
who identify as female. Biological females who may be
required to compete against such transgender females
in training and athletic competition would potentially be
disadvantaged. 139 Even more importantly, in physiSee supra note 109. Both the International Olympic Committee (IOC) and the National Collegiate Athletic Association
(NCAA) have attempted to mitigate this problem in their policies
regarding transgender athletes. For example, the IOC requires
athletes who transition from male to female to demonstrate certain
suppressed levels of testosterone to minimize any advantage in
women’s competition. Similarly, the NCAA prohibits an athlete
who has transitioned from male to female from competing on a
women’s team without changing the team status to a mixed gender
team. While similar policies could be employed by the Department, it is unrealistic to expect the Department to subject transgender Service members to routine hormone testing prior to biannual fitness testing, athletic competition, or training simply to
mitigate real and perceived unfairness or potential safety concerns.
See, e.g., International Olympic Committee Consensus Meeting
on Sex Reassignment and Hyperandrogensim (Nov. 2015), https://
139

 187a
cally violent training and competition, such as boxing
and combatives, pitting biological females against biological males who identify as female, and vice versa,
could present a serious safety risk as well. 140
This concern may seem trivial to those unfamiliar
with military culture. But vigorous competition, especially physical competition, is central to the military life
and is indispensable to the training and preparation of
warriors. Nothing encapsulates this more poignantly
than the words of General Douglas MacArthur when he
was superintendent of the U.S. Military Academy and
which are now engraved above the gymnasium at West
Point: “Upon the fields of friendly strife are sown the
seeds that, upon other fields, on other days will bear the
fruits of victory.”141 Especially in combat units and in
training, including the Service academies, ROTC, and
other commissioning sources, Service members are
graded and judged in significant measure based upon
their physical aptitude, which is only fitting given that
combat remains a physical endeavor.
Second, a policy that accommodates gender transition without requiring full sex reassignment surgery
could also erode reasonable expectations of privacy that
stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_
commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_
and_hyperandrogenism-en.pdf; NCAA Office of Inclusion, NCAA
Inclusion of Transgender Student-Athletes (Aug. 2011), https://
www.ncaa.org/sites/default/fi1es/Transgender_Handbook_2011_Final.
pdf.
140
See supra note 109.
141
Douglas MacArthur, Respectfully Quoted: A Dictionary of
Quotations (1989), available at http://www.bartleby.com/73/1874.
html.

 188a
are important in maintaining unit cohesion, as well as
good order and discipline. Given the unique nature of
military service, Service members of the same biological
sex are often required to live in extremely close proximity to one another when sleeping, undressing, showering, and using the bathroom. Because of reasonable
expectations of privacy, the military has long maintained
separate berthing, bathroom, and shower facilities for
men and women while in garrison. In the context of
recruit training, this separation is even mandated by
Congress.142
Allowing transgender persons who have not undergone a full sex reassignment, and thus retain at least
some of the anatomy of their biological sex, to use the
facilities of their identified gender would invade the
expectations of privacy that the strict male-female demarcation in berthing, bathroom, and shower facilities
is meant to serve. At the same time, requiring transgender persons who have developed, even if only partially, the anatomy of their identified gender to use the
facilities of their biological sex could invade the privacy
of the transgender person. Without separate facilities
for transgender persons or other mitigating accommodations, which may be unpalatable to transgender individuals and logistically impracticable for the Department, the privacy interests of biological males and females and transgender persons could be anticipated to
result in irreconcilable situations. Lieutenants, Sergeants, and Petty Officers charged with carrying out
their units’ assigned combat missions should not be

142

See supra note 108.

 189a
burdened by a change in eligibility requirements disconnected from military life under austere conditions.
The best illustration of this irreconcilability is the
report of one commander who was confronted with dueling equal opportunity complaints—one from a transgender female (i.e., a biological male with male genitalia
who identified as female) and the other from biological
females. The transgender female Service member was
granted an exception to policy that allowed the Service
member to live as a female, which included giving the
Service member access to female shower facilities.
This led to an equal opportunity complaint from biological females in the unit who believed that granting a
biological male, even one who identified as a female,
access to their showers violated their privacy. The
transgender Service member responded with an equal
opportunity complaint claiming that the command was
not sufficiently supportive of the rights of transgender
persons.143
The collision of interests discussed above are a direct
threat to unit cohesion and will inevitably result in
greater leadership challenges without clear solutions.
Leaders at all levels already face immense challenges in
building cohesive military units. Blurring the line that
differentiates the standards and policies applicable to

Minutes, Transgender Review Panel (Oct. 13, 2017). Limited
data exists regarding the performance of transgender Service
members due to policy restrictions in Department of Defense
1300.28, In-Service Transition for Transgender Service Members
(Oct. 1, 2016), that prevent the Department from tracking individuals who may identify as transgender as a potentially unwarranted
invasion of personal privacy.
143

 190a
men and women will only exacerbate those challenges
and divert valuable time and energy from military tasks.
The unique leadership challenges arising from gender
transition are evident in the Department’s handbook
implementing the Carter policy. The handbook provides
guidance on various scenarios that commanders may face.
One such scenario concerns the use of shower facilities:
“A transgender Service member has expressed privacy
concerns regarding the open bay shower configuration.
Similarly, several other non-transgender Service members have expressed discomfort when showering in
these facilities with individuals who have different
genitalia.” As possible solutions, the handbook offers
that the commander could modify the shower facility to
provide privacy or, if that is not feasible, adjust the
timing of showers. Another scenario involves proper
attire during a swim test: “It is the semi-annual swim
test and a female to male transgender Service member
who has fully transitioned, but did not undergo surgical
change, would like to wear a male swimsuit for the test
with no shirt or other top coverage.” The extent of the
handbook’s guidance is to advise commanders that “[i]t
is within [their] discretion to take measures ensuring
good order and discipline,’’ that they should “counsel
the individual and address the unit, if additional options
(e.g., requiring all personnel to wear shirts) are being
considered,’’ and that they should consult the Service
Central Coordination Cell, a help line for commanders
in need of advice.
These vignettes illustrate the significant effort required of commanders to solve challenging problems
posed by the implementation of the current transgender
service policies. The potential for discord in the unit

 191a
during the routine execution of daily activities is substantial and highlights the fundamental incompatibility
of the Department’s legitimate military interest in uniformity, the privacy interests of all Service members,
and the interest of transgender individuals in an appropriate accommodation. Faced with these conflicting interests, commanders are often forced to devote
time and resources to resolve issues not present outside
of military service. A failure to act quickly can degrade
an otherwise highly functioning team, as will failing to
seek appropriate counsel and implementing a faulty
solution. The appearance of unsteady or seemingly
unresponsive leadership to Service member concerns
erodes the trust that is essential to unit cohesion and
good order and discipline.
The RAND study does not meaningfully address how
accommodations for gender transition would impact
perceptions of fairness and equity, expectations of privacy, and safety during training and athletic competition
and how these factors in turn affect unit cohesion. Instead, the RAND study largely dismisses concerns about
the impact on unit cohesion by pointing to the experience
of four countries that allow transgender service—
Australia, Canada, Israel, and the United Kingdom. 144
Although the vast majority of armed forces around the
world do not permit or have policies on transgender
service, RAND noted that 18 militaries do, but only four
have well-developed and publicly available policies. 145
RAND concluded that “the available research revealed
no significant effect on cohesion, operational effective-

144
145

RAND Study at 45.
Id. at 50.

 192a
ness, or readiness.”146 It reached this conclusion, however, despite noting reports of resistance in the ranks,
which is a strong indication of an adverse effect on unit
cohesion. 147 Nevertheless, RAND acknowledged that
the available data was “limited” and that the small number of transgender personnel may account for “the limited
effect on operational readiness and cohesion.”148
Perhaps more importantly, however, the RAND study
mischaracterizes or overstates the reports upon which
it rests its conclusions. For example, the RAND study
cites Gays in Foreign Militaries 2010: A Global Primer by Nathaniel Frank as support for the conclusions
that there is no evidence that transgender service has
had an adverse effect on cohesion, operational effectiveness, or readiness in the militaries of Australia and the
United Kingdom and that diversity has actually led to
increases in readiness and performance.149 But that particular study has nothing to do with examining the service of transgender persons; rather, it is about the integration of homosexual persons into the military. 150
With respect to transgender service in the Israeli military, the RAND study points to an unpublished paper
Id. at 45.
Id.
148
Id.
149
Id.
150
Nathaniel Frank, “Gays in Foreign Militaries 2010: A Global
Primer,” p. 6 The Palm Center (Feb. 2010), https://www.palmcenter.
org/wpcontent/uploads/2017/12/FOREIGNMILITARIESPRIMER
2010FINAL.pdf (“This study seeks to answer some of the questions that have been, and will continue to be, raised surrounding
the instructive lessons from other nations that have lifted their
bans on openly gay service.”).
146
147

 193a
by Anne Speckhard and Reuven Paz entitled Transgender Service in the Israeli Defense Forces: A Polar
Opposite Stance to the U.S. Military Policy of Barring
Transgender Soldiers from Service. The RAND study
cites this paper for the proposition that “there has been
no reported effect on cohesion or readiness’’ in the
Israeli military and “there is no evidence of any impact
on operational effectiveness.” 151 These sweeping and
categorical claims, however, are based only on “six indepth interviews of experts on the subject both inside
and outside the [Israeli Defense Forces (IDF)]: two in
the IDF leadership—including the spokesman’s office;
two transgender individuals who served in the IDF, and
two professionals who serve transgender clientele—
before, during and after their IDF service.”152 As the
RAND report observed, however: “There do appear to
be some limitations on the assignment of transgender
personnel, particularly in combat units. Because of the
austere living conditions in these types of units, necessary accommodations may not be available for Service
members in the midst of a gender transition. As a
result, transitioning individuals are typically not assigned to combat units.”153 In addition, as the RAND
study notes, under the Israeli policy at the time, “assignment of housing, restrooms, and showers is typically linked to the birth gender, which does not change
in the military system until after gender reassignment

Rand Study at 45.
Anne Speckhard & Reuven Paz, “Transgender Service in the
Israeli Defense Forces: A Polar Opposite Stance to the U.S. Military Policy of Barring Transgender Soldiers from Service,” p. 3
(2014), http://www.researchgate.net/publication/280093066.
153
Rand Study at 56.
151
152

 194a
surgery.”154 Therefore, insofar as a Service member’s
change of gender is not recognized until after sex reassignment surgery, the Israeli policy—and whatever
claims about its impact on cohesion, readiness, and
operational effectiveness—are distinguishable from the
Carter policy.
Finally, the RAND study cites to a journal article on
the Canadian military experience entitled Gender Identity in the Canadian Forces: A Review of Possible
Impacts on Operational Effectiveness by Alan Okros
and Denise Scott. According to RAND, the authors of
this article “found no evidence of any effect on unit or
overall cohesion.”155 But the article not only fails to support the RAND study’s conclusions (not to mention the
article’s own conclusions), but it confirms the concerns
that animate the Department’s recommendations. The
article acknowledges, for example, the difficulty commanders face in managing the competing interests at play:
Commanders told us that the new policy fails to provide sufficient guidance as to how to weigh priorities
among competing objectives during their subordinates’ transition processes. Although they endorsed
the need to consult transitioning Service members,
they recognized that as commanding officers, they
would be called on to balance competing requirements. They saw the primary challenge to involve
meeting trans individual’s expectations for reasonable accommodation and individual privacy while
avoiding creating conditions that place extra burdens
on others or undermined the overall team effective154
155

Id. at 55.
Id. at 45.

 195a
ness. To do so, they said that they require additional guidance on a range of issues including clothing, communal showers, and shipboard bunking and
messing arrangements. 156
Notwithstanding its optimistic conclusions, the article also documents serious problems with unit cohesion.
The authors observe, for instance, that the chain of command “has not fully earned the trust of the transgender
personnel,” and that even though some transgender
Service members do trust the chain of command, others
‘‘expressed little confidence in the system,” including
one who said, “I just don’t think it works that well.”157
In sum, although the foregoing considerations are
not susceptible to quantification, undermining the clear
sex-differentiated lines with respect to physical fitness;
berthing, bathroom, and shower facilities; and uniform
and grooming standards, which have served all branches of Service well to date, risks unnecessarily adding to
the challenges faced by leaders at all levels, potentially
fraying unit cohesion, and threatening good order and
discipline. The Department acknowledges that there
are serious differences of opinion on this subject, even
among military professionals, including among some
who provided input to the Panel of Experts,158 but given
Alan Okros & Denise Scott, “Gender Identity in the Canadian
Forces,” Armed Forces and Society Vol. 41, p. 8 (2014).
157
Id. at 9.
158
While differences of opinion do exist, it bears noting that, according to a Military Times/Syracuse University’s Institute for
Veterans and Military Families poll, 41% of active duty Service
members polled thought that allowing gender transition would hurt
their unit’s readiness, and only 12% thought it would be beneficial.
Overall, 57% had a negative opinion of the Carter policy. Leo
156

 196a
the vital interests at stake—the survivability of Service
members, including transgender persons, in combat and
the military effectiveness and lethality of our forces—it
is prudent to proceed with caution, especially in light
of the inconclusive scientific evidence that transitionrelated treatment restores persons with gender dysphoria to full mental health.
3. Imposes Disproportionate Costs. Transitionrelated treatment is also proving to be disproportionately costly on a per capita basis, especially in light of
the absence of solid scientific support for the efficacy of
such treatment. Since implementation of the Carter
policy, the medical costs for Service members with gender dysphoria have increased nearly three times—or
300%—compared to Service members without gender
dysphoria.159 And this increase is despite the low number of costly sex reassignment surgeries that have been
performed so far.160 As noted earlier, only 34 non-genital
sex reassignment surgeries and one genital surgery
have been completed, 161 with an additional 22 Service
members requesting a waiver for genital surgery.162 We
can expect the cost disparity to grow as more Service
members diagnosed with gender dysphoria avail themselves of surgical treatment. As many as 77% of the
Shane III, “Poll: Active-duty troops worry about military’s transgender policies,” Military Times (July 27, 2017) available at
https://www.militarytimes.com/news/pentagon-congress/2017/07/27/
poll-active-duty-troops-worry-about-militarys-transgender-policies/.
159
Minutes, Transgender Review Panel (Nov. 2, 2017).
160
Minutes, Transgender Review Panel (Nov. 2, 2017).
161
Data retrieved from Military Health System Data Repository
(Nov. 2017).
162
Defense Health Agency Data (as of Feb. 2018).

 197a
424 Service member treatment plans available for review include requests for transition-related surgery,
although it remains to be seen how many will ultimately
obtain surgeries. 163 In addition, several commanders
reported to the Panel of Experts that transition-related
treatment for Service members with gender dysphoria
in their units had a negative budgetary impact because
they had to use operations and maintenance funds to pay
for the Service members’ extensive travel throughout the
United States to obtain specialized medical care.164
Taken together, the foregoing concerns demonstrate
why recognizing and making accommodations for gender transition are not conducive to, and would likely
undermine, the inputs—readiness, good order and discipline, sound leadership, and unit cohesion—that are
essential to military effectiveness and lethality. Therefore, it is the Department’s professional military judgment that persons who have been diagnosed with, or
have a history of, gender dysphoria and require, or have
already undergone, a gender transition generally should
Data reported by the Departments of the Army, Navy, and
Air Force (Oct. 2017).
164
Minutes, Transgender Review Panel (Oct. 13, 2017); see also
Irene Folaron & Monica Lovasz, “Military Considerations in
Transsexual Care of the Active Duty Member,” Military Medicine,
Vol. 181, p. 1185 (Oct. 2016) (“As previously discussed, a new diagnosis of gender dysphoria and the decision to proceed with gender
transition requires frequent evaluations by the [mental health professional] and endocrinologist. However, most [military treatment
facilities] lack one or both of these specialty services. Members
who are not in proximity to [military treatment facilities] may have
significant commutes to reach their required specialty care. Members stationed in more remote locations face even greater challenges of gaining access to military or civilian specialists within a
reasonable distance from their duty stations.”).
163

 198a
not be eligible for accession or retention in the Armed
Forces absent a waiver.
C.

Transgender Persons With a History or Diagnosis of Gender Dysphoria Are Disqualified, Except
Under Certain Limited Circumstances.

As explained earlier in greater detail, persons with
gender dysphoria experience significant distress and
impairment in social, occupational, or other important
areas of functioning. Gender dysphoria is also accompanied by extremely high rates of suicidal ideation and
other comorbidities. Therefore, to ensure unit safety
and mission readiness, which is essential to military effectiveness and lethality, persons who are diagnosed
with, or have a history of, gender dysphoria are generally disqualified from accession or retention in the Armed
Forces. The standards recommended here are subject to
the same procedures for waiver as any other standards.
This is consistent with the Department’s handling of
other mental conditions that require treatment. As a
general matter, only in the limited circumstances described below should persons with a history or diagnosis
of gender dysphoria be accessed or retained.
1. Accession of Individuals Diagnosed with Gender Dysphoria. Given the documented fluctuations in
gender identity among children, a history of gender dysphoria should not alone disqualify an applicant seeking to
access into the Armed Forces. According to the DSM-5,
the persistence of gender dysphoria in biological male
children “has ranged from 2.2% to 30%,” and the persistence of gender dysphoria in biological female children
“has ranged from 12% to 50%.”165 Accordingly, persons
165

DSM-5 at 455.

 199a
with a history of gender dysphoria may access into the
Armed Forces, provided that they can demonstrate
36 consecutive months of stability—i.e., absence of gender
dysphoria—immediately preceding their application; they
have not transitioned to the opposite gender; and they
are willing and able to adhere to all standards associated with their biological sex. The 36-month stability
period is the same standard the Department currently
applies to persons with a history of depressive disorder.
The Carter policy’s 18-month stability period for gender
dysphoria, by contrast, has no analog with respect to
any other mental condition listed in DoDI 6130.03.
2. Retention of Service Members Diagnosed
with Gender Dysphoria. Retention standards are typically less stringent than accession standards due to
training provided and on-the-job performance data.
While accession standards endeavor to predict whether
a given applicant will require treatment, hospitalization,
or eventual separation from service for medical unfitness, and thus tend to be more cautious, retention standards focus squarely on whether the Service member,
despite his or her condition, can continue to do the job.
This reflects the Department’s desire to retain, as far as
possible, the Service members in which it has made
substantial investments and to avoid the cost of finding
and training a replacement. To use an example outside
of the mental health context, high blood pressure does
not meet accession standards, even if it can be managed
with medication, but it can meet retention standards so
long as it can be managed with medication. Regardless, however, once they have completed treatment,
Service members must continue to meet the standards
that apply to them in order to be retained. Therefore,
Service members who are diagnosed with gender dys-

 200a
phoria after entering military service may be retained
without waiver, provided that they are willing and able
to adhere to all standards associated with their biological sex, the Service member does not require gender
transition, and the Service member is not otherwise
non-deployable for more than 12 months or for a period
of time in excess of that established by Service policy
(which may be less than 12 months).166
3. Exempting Current Service Members Who
Have Already Received a Diagnosis of Gender Dysphoria. The Department is mindful of the transgender
Service members who were diagnosed with gender dysphoria and either entered or remained in service following the announcement of the Carter policy and the
court orders requiring transgender accession and retention. The reasonable expectation of these Service
members that the Department would honor their service on the terms that then existed cannot be dismissed.
Therefore, transgender Service members who were
diagnosed with gender dysphoria by a military medical
provider after the effective date of the Carter policy,
but before the effective date of any new policy, may
continue to receive all medically necessary treatment,
to change their gender marker in DEERS, and to serve
in their preferred gender, even after the new policy
commences. This includes transgender Service members who entered into military service after January 1,
2018, when the Carter accession policy took effect by
court order. The Service member must, however, adhere to the procedures set forth in DoDI 1300.28, and
Under Secretary of Defense for Personnel and Readiness,
“DoD Retention Policy for Non-Deployable Service Members”
(Feb. 14, 2018).
166

 201a
may not be deemed to be non-deployable for more than
12 months or for a period of time in excess of that established by Service policy (which may be less than
12 months). While the Department believes that its
commitment to these Service members, including the
substantial investment it has made in them, outweigh
the risks identified in this report, should its decision to
exempt these Service members be used by a court as a
basis for invalidating the entire policy, this exemption
instead is and should be deemed severable from the rest
of the policy.

 202a
Conclusion

In making these recommendations, the Department
is well aware that military leadership from the prior
administration, along with RAND, reached a different
judgment on these issues. But as the forgoing analysis
demonstrates, the realities associated with service by
transgender individuals are more complicated than the
prior administration or RAND had assumed. In fact,
the RAND study itself repeatedly emphasized the lack
of quality data on these issues and qualified its conclusions accordingly. In addition, that study concluded
that allowing gender transition would impede readiness,
limit deployability, and burden the military with additional costs. In its view, however, such harms were
negligible in light of the small size of the transgender
population. But especially in light of the various sources
of uncertainty in this area, and informed by the data
collected since the Carter policy took effect, the Department is not convinced that these risks could be responsibly dismissed or that even negligible harms should
be incurred given the Department’s grave responsibility to fight and win the Nation’s wars in a manner that
maximizes the effectiveness, lethality, and survivability
of our most precious assets—our Soldiers, Sailors, Airmen, Marines, and Coast Guardsmen.
Accordingly, the Department weighed the risks associated with maintaining the Carter policy against the
costs of adopting a new policy that was less riskfavoring in developing these recommendations. It is
the Department’s view that the various balances struck
by the recommendations above provide the best solution
currently available, especially in light of the significant
uncertainty in this area. Although military leadership

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from the prior administration reached a different conclusion, the Department’s professional military judgment is that the risks associated with maintaining the
Carter policy—risks that are continuing to be better
understood as new data become available—counsel in
favor of the recommended approach.

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APPENDIX O
SECRETARY OF DEFENSE
1000 DEFENSE PENTAGON
WASHINGTON, DC 20301-1000

[FEB 22, 2018]
MEMORANDUM FOR THE PRESIDENT
SUBJECT: Military Service by Transgender Individuals
“Transgender” is a term describing those persons
whose gender identity differs from their biological sex.
A subset of transgender persons diagnosed with gender
dysphoria experience discomfort with their biological
sex, resulting in significant distress or difficulty functioning. Persons diagnosed with gender dysphoria often seek to transition their gender through prescribed
medical treatments intended to relieve the distress and
impaired functioning associated with their diagnosis.
Prior to your election, the previous administration
adopted a policy that allowed for the accession and retention in the Armed Forces of transgender persons
who had a history or diagnosis of gender dysphoria.
The policy also created a procedure by which such Service members could change their gender. This policy
was a departure from decades-long military personnel
policy. On June 30, 2017, before the new accession
standards were set to take effect. I approved the recommendation of the Services to delay for an additional
six months the implementation of these standards to
evaluate more carefully their impact on readiness and
lethality. To that end, I established a study group that
included the representatives of the Service Secretaries

 205a
and senior military officers, many with combat experience, to conduct the review.
While this review was ongoing, on August 25, 2017,
you sent me and the Secretary of Homeland Security a
memorandum expressing your concern that the previous administration’s new policy “failed to identify a
sufficient basis’’ for changing longstanding policy and
that “further study is needed to ensure that continued
implementation of last year’s policy change would not
have . . . negative effects.” You then directed the
Department of Defense and the Department of Homeland Security to reinstate the preexisting policy concerning accession of transgender individuals “until such
time as a sufficient basis exists upon which to conclude
that terminating that policy” would not “hinder military
effectiveness and lethality, disrupt unit cohesion, or tax
military resources.” You made clear that we could advise you “at any time, in writing, that a change to this
policy is warranted.”
I created a Panel of Experts comprised of senior
uniformed and civilian Defense Department and U.S.
Coast Guard leaders and directed them to consider this
issue and develop policy proposals based on data, as
well as their professional military judgment, that would
enhance the readiness, lethality, and effectiveness of
our military. This Panel included combat veterans to
ensure that our military purpose remained the foremost
consideration. I charged the Panel to provide its best
military advice, based on increasing the lethality and
readiness of America’s armed forces, without regard to
any external factors.
The Panel met with and received input from transgender Service members, commanders of transgender

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Service members, military medical professionals, and
civilian medical professionals with experience in the care
and treatment of individuals with gender dysphoria.
The Panel also reviewed available information on gender dysphoria, the treatment of gender dysphoria, and
the effects of currently serving individuals with gender
dysphoria on military effectiveness, unit cohesion, and
resources. Unlike previous reviews on military service
by transgender individuals, the Panel’s analysis was
informed by the Department’s own data obtained since
the new policy began to take effect last year.
Based on the work of the Panel and the Department’s
best military judgment, the Department of Defense
concludes that there are substantial risks associated
with allowing the accession and retention of individuals
with a history or diagnosis of gender dysphoria and
require, or have already undertaken, a course of treatment to change their gender. Furthermore, the Department also finds that exempting such persons from
well-established mental health, physical health, and
sex-based standards, which apply to all Service members, including transgender Service members without
gender dysphoria, could undermine readiness, disrupt
unit cohesion, and impose an unreasonable burden on
the military that is not conducive to military effectiveness and lethality.
The prior administration largely based its policy on a
study prepared by the RAND National Defense Research Institute; however, that study contained significant shortcomings. It referred to limited and heavily
caveated data to support its conclusions, glossed over
the impacts of healthcare costs, readiness, and unit cohesion, and erroneously relied on the selective experi-

 207a
ences of foreign militaries with different operational
requirements than our own. In short, this policy issue
has proven more complex than the prior administration
or RAND assumed.
I firmly believe that compelling behavioral health
reasons require the Department to proceed with caution
before compounding the significant challenges inherent
in treating gender dysphoria with the unique, highly
stressful circumstances of military training and combat
operations. Preservation of unit cohesion, absolutely
essential to military effectiveness and lethality, also
reaffirms this conclusion.
Therefore, in light of the Panel’s professional military judgment and my own professional judgment, the
Department should adopt 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.

 208a

• Transgender persons who require or have un-

dergone gender transition are disqualified from
military service.

• Transgender persons without a history or diag-

nosis of gender dysphoria, who are otherwise
qualified for service, may serve, like all other
Service members, in their biological sex.

I have consulted with the Secretary of Homeland
Security, and she agrees with these proposed policies.
By its very nature, military service requires sacrifice. The men and women who serve voluntarily accept
limitations on their personal liberties—freedom of
speech, political activity, freedom of movement—in order to provide the military lethality and readiness necessary to ensure American citizens enjoy their personal
freedoms to the fullest extent. Further, personal characteristics, including age, mental acuity, and physical
fitness—among others—matter to field a lethal and
ready force.
In my professional judgment, these policies will
place the Department of Defense in the strongest position to protect the American people, to fight and win
America’s wars, and to ensure the survival and success
of our Service members around the world. The attached report provided by the Under Secretary of Defense for Personnel and Readiness includes a detailed
analysis of the factors and considerations forming the
basis of the Department’s policy proposals.
I therefore respectfully recommend you revoke your
memorandum of August 25, 2017, regarding Military
Service by Transgender Individuals, thus allowing me
and the Secretary of Homeland Security with respect to

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the U.S. Coast Guard, to implement appropriate policies
concerning military service by transgender persons.
/s/

Attachment:
As stated
cc:
Secretary of Homeland Security

JAMES N. MATTIS
JAMES N. MATTIS

 210a
APPENDIX P
THE WHITE HOUSE

WASHINGTON
Mar. 23, 2018
MEMORANDUM FOR THE SECRETARY OF
DEFENSE
THE SECRETARY OF HOMELAND
SECURITY
SUBJECT: Military Service by Transgender Individuals
Pursuant to my memorandum of August 25, 2017, “Military Service by Transgender Individuals,” the Secretary of Defense, in consultation with the Secretary of
Homeland Security, submitted to me a memorandum
and report concerning military service by transgender
individuals.
These documents set forth the policies on this issue
that the Secretary of Defense, in the exercise of his independent judgment, has concluded should be adopted
by the Department of Defense. The Secretary of Homeland Security concurs with these policies with respect
to the U.S. Coast Guard.
Among other things, the policies set forth by the Secretary of Defense state that transgender persons with
a history or diagnosis of gender dysphoria—individuals
who the policies state may require substantial medical
treatment, including medications and surgery—are
disqualified from military service except under certain
limited circumstances.

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By the authority vested in me as President by the
Constitution and the laws of the United States of
America, I hereby order as follows:
Section 1. I hereby revoke my memorandum of
August 25, 2017, “Military Service by Transgender
Individuals,” and any other directive I may have made
with respect to military service by transgender individuals.
Sec. 2. The Secretary of Defense, and the Secretary of Homeland Security, with respect to the U.S.
Coast Guard, may exercise their authority to implement any appropriate policies concerning military ser vice by transgender individuals.
Sec. 3. (a) Nothing in this memorandum shall be
construed to impair or otherwise affect:
(i) the authority granted by law to an executive
department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of
Management and Budget relating to budgetary,
administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does
not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party
against the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any other
person.

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(d) The Secretary of Defense is authorized and
directed to publish this memorandum in the Federal
Register.
/s/ DONALD TRUMP
DONALD TRUMP