No. XX-XX

In the Supreme Court of the United States
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
ET AL., PETITIONERS
v.
AIDEN STOCKMAN, 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; James N. Mattis, in his official capacity
as Secretary of Defense; Joseph F. Dunford, Jr., in his
official capacity as Chairman of the Joint Chiefs of
Staff; Richard V. Spencer, in his official capacity as Secretary of the Navy; Mark T. Esper, in his official capacity as Secretary of the Army; Heather A. Wilson, in her
official capacity as Secretary of the Air Force; and
Kirstjen M. Nielsen, in her official capacity as Secretary of Homeland Security. *
Respondents (plaintiffs-appellees below) are Aiden
Stockman, Nicolas Talbott, Tamasyn Reeves, Jaquice
Tate, John Doe 1, John Doe 2, Jane Doe, and Equality
California. Respondents also include the State of California (intervenor-plaintiff-appellee below).

Former Acting Secretary of Homeland Security Elaine C. Duke
was a defendant below in this case. When Kirstjen M. Nielsen became the Secretary of Homeland Security, Secretary Nielsen was
automatically substituted. Former Acting Secretary of the Army
Ryan D. McCarthy was a defendant below in this case. When Mark
T. Esper became Secretary of the Army, Secretary Esper was automatically substituted.
*

(II)

 TABLE OF CONTENTS

Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 2
Constitutional provision involved................................................ 2
Statement ...................................................................................... 2
A. The military’s policies ..................................................... 2
B. Procedural history ........................................................... 9
Reasons for granting the petition ............................................. 11
A. The question presented warrants this Court’s
immediate review ........................................................... 12
B. This case squarely presents the equal-protection
challenge to the Mattis policy ....................................... 13
C. The Court should grant each of the government’s
petitions and consolidate the cases for consideration this Term ............................................................... 14
Conclusion ................................................................................... 15
Appendix A — District court order granting preliminary
injunction (Dec. 22, 2017)........................... 1a
Appendix B — District court order denying motion to
dissolve preliminary injunction
(Sept. 18, 2018).......................................... 41a
Appendix C — Notice of appeal (Nov. 16, 2018).................. 67a
TABLE OF AUTHORITIES

Case:
Stone v. Trump, 280 F. Supp. 3d 747 (D. Md. 2017) .......... 10
Constitution and statute:
U.S. Const.:
Art. III .............................................................................. 14
Amend. I ....................................................................... 9, 14
Amend. V ............................................................................ 2
10 U.S.C. 505(a) ....................................................................... 2

(III)

 In the Supreme Court of the United States
No. XX-XX
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
ET AL., PETITIONERS
v.
AIDEN STOCKMAN, 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-40a)
is not published in the Federal Supplement but is available at 2017 WL 9732572. The order of the district court
denying the government’s motion to dissolve the preliminary injunction (App., infra, 41a-66a) is not yet published in the Federal Supplement but is available at
2018 WL 4474768.

(1)

 2
JURISDICTION

On September 18, 2018, the district court denied the
government’s motion to dissolve a preliminary injunction. The government filed a notice of appeal on November 16, 2018 (App., infra, 67a-68a). 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 PROVISION INVOLVED

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, Karnoski Pet. App.
116a. 1 “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,” Karnoski Pet. App. 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 dis-

References to the “Karnoski Pet.” and “Karnoski Pet. App.” are
to the petition for a writ of certiorari before judgment and the appendix to that petition filed in Trump v. Karnoski, No. 18-___, simultaneously with this petition.
1

 3
qualifying with those listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM), published
by the American Psychiatric Association (APA). Id. at
132a-133a. 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. 2
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.
Karnoski Pet. App. 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. Karnoski Pet. App. 127a.
2. In 2013, the APA published a new edition of the
DSM, which replaced the term “gender identity disorder” with “gender dysphoria.” Karnoski Pet. App.
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 Karnoski Pet. App. 204a.
According to the APA, a diagnosis of gender dysphoria should be reserved for individuals who experience a
References to the “C.A. E.R.” are to the excerpts of record filed
in Karnoski v. Trump, No. 18-35347 (9th Cir. May 29, 2018).
2

 4
“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
other important areas of functioning.” C.A. E.R. 417;
see Karnoski Pet. App. 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. Karnoski Pet. App. 155a-156a; C.A. E.R. 345-346. The APA
emphasizes that “[n]ot all transgender people suffer
from gender dysphoria.” Karnoski Pet. App. 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.” Karnoski Pet.
App. 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”

 5
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
adopt a new policy on “Military Service of Transgender
Service Members.” Karnoski Pet. App. 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.
Karnoski Pet. App. 91a. Under the Carter policy, cur-

 6
rent 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 Karnoski Pet. App. 93a. Transgender servicemembers
without a diagnosis of gender dysphoria, by contrast,
would be required to continue serving in their biological
sex. See Karnoski Pet. App. 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.”
Karnoski Pet. App. 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.”
Karnoski Pet. App. 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

 7
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.
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.” Karnoski Pet. App. 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. Karnoski Pet. App. 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.

 8
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. Karnoski
Pet. App. 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. Karnoski Pet. App. 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

 9
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.” Karnoski
Pet. App. 211a. The 2018 memorandum recognized that
the 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 an advocacy organization—brought
suit in the Central District of California, challenging as
a violation of their equal-protection, due-process, privacy, and First Amendment rights what they described
as “the ban” on military service by transgender individuals reflected in the President’s 2017 tweets and memorandum. D. Ct. Doc. 1, at 3 (Sept. 5, 2017); see id. at
15-19. The State of California subsequently intervened
in the suit as a plaintiff. D. Ct. Doc. 66 (Nov. 16, 2017).
Similar suits were filed in the Western District of
Washington and in the District of Columbia. See Karnoski v. Trump, No. 17-cv-1297 (W.D. Wash. filed Aug.
28, 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 Central District of California (Stockman)
follows. A summary of the proceedings in the other
suits can be found in the government’s petitions for

 10
writs of certiorari before judgment in those cases, filed
simultaneously with this petition. 3
2. In December 2017, the district court issued a nationwide preliminary injunction, requiring the military
to maintain and implement the Carter policy. See App.,
infra, 39a-40a. The court construed the President’s
2017 tweets and memorandum as reflecting a “ban” on
military service by “transgender people.” Id. at 35a.
The court determined that such “discrimination on the
basis of one’s transgender status is subject to intermediate scrutiny.” Id. at 36a. And in the court’s view, the
government’s justifications for the “ban[]” did not survive such scrutiny. Id. at 36a-37a. The court therefore
concluded that respondents were likely to succeed in
their equal-protection challenge. Id. at 37a.
3. In March 2018, the government informed the district 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. 82, at 4
(Mar. 23, 2018); see D. Ct. Doc. 80 (Mar. 23, 2018). In

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
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).
3

 11
light of that new policy, the government moved to dissolve the December 2017 injunction. D. Ct. Doc. 82, at
1-28.
In September 2018, the district court denied the government’s motion. App., infra, 41a-66a. The court
found “the new policy” to be “essentially the same as
the first policy,” “continu[ing]” the “ban[]” on “transgender people” in the military that the President had
supposedly “announced” in 2017. Id. at 59a. The court
reiterated its determination that “intermediate scrutiny” applies to “transgender discrimination.” Id. at
61a. And it concluded that the military’s justifications
for “the transgender ban” were still not “persuasive”
enough to survive such scrutiny. Id. at 66a.
The government appealed. App., infra, 67a-68a.
REASONS FOR GRANTING THE PETITION

This case and related cases in Washington 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

 12
before them a total of three injunctions enjoining the
military from implementing the Mattis policy nationwide. As explained in the Karnoski petition (at 19-27),
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
before judgment, consolidate the cases for decision, and
consider this important dispute this Term. 4
A. The Question Presented Warrants This Court’s Immediate
Review

The government’s petition in Karnoski explains in
detail (at 16-19) why this Court’s immediate review is
necessary. The district court in this case entered a nationwide preliminary injunction blocking the implementation of a policy that, in Secretary Mattis’s professional
judgment, “will place the Department of Defense in the
strongest position to protect the American people, to
The government has previously sought stays in the lower courts
of the preliminary injunction in Karnoski, and the government intends to do the same in this case 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.
4

 13
fight and win America’s wars, and to ensure the survival
and success of our Service members around the world.”
Karnoski Pet. App. 208a. 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. In the interim, the military would 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.” Id. at 197a.
B. This Case Squarely Presents The Equal-Protection
Challenge To The Mattis Policy

In enjoining the government from implementing the
Mattis policy in this case, the district court squarely addressed respondents’ equal-protection claim. App., infra,
57a-66a. Adopting reasoning similar to the district
courts in the other cases, the court viewed the Mattis
policy as “fundamentally the same” as the “ban[]” on
military service by transgender individuals that the
President supposedly announced in 2017. Id. at 55a. It
then concluded that the policy could not survive the
heightened scrutiny that it had deemed applicable to
“transgender discrimination.” Id. at 61a; see id. at 61a66a. A grant of certiorari before judgment in this case
would thus bring before this Court the equal-protection

 14
claim at the center of all the suits challenging the constitutionality of the Mattis policy. 5
C. The Court Should Grant Each Of The Government’s
Petitions And Consolidate The Cases For Consideration
This Term

To ensure an adequate vehicle for the timely and definitive resolution of this overall dispute, the Court
should grant the government’s petition in this case, as
well as the petitions in Karnoski and Doe, and consolidate the cases for further review.
As noted in the Karnoski petition (at 27-28), both this
case and Karnoski are before the Ninth Circuit. The district court in Karnoski addressed not only respondents’
equal-protection claim, but also their substantive-dueprocess and First Amendment claims. Karnoski Pet.
10-11. This Court may thus prefer to grant certiorari in
Karnoski over this case. The Court should, at a minimum, hold this petition pending resolution of the Karnoski petition and any further proceedings in this
Court. An order vacating the injunction issued in Karnoski would have no practical consequence unless the
injunction in this case were similarly vacated. 6
The government respectfully submits, however, that
the Court should grant all three petitions and consolidate the cases for this Court’s review. In so doing, the
Court would ensure that no intervening developments
5
A grant of certiorari before judgment would also bring before
this Court the issue of whether the district court erred in enjoining
the Mattis policy on a nationwide basis. For reasons explained in
the Karnoski petition (at 25-27), such nationwide relief violates
Article III and longstanding equitable principles.
6
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.

 15
in the lower courts—for example, a vacatur of the preliminary injunction in Karnoski by the Ninth Circuit—
would impede or complicate the Court’s ability to address the main constitutional challenge to the Mattis
policy this Term.
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 CENTRAL DISTRICT OF CALIFORNIA

No. EDCV 17-1799 JGB (KKx)
AIDEN STOCKMAN ET AL.
v.
DONALD J. TRUMP ET AL.
Filed: Dec. 22, 2017
CIVIL MINUTES—GENERAL

Present:

The Honorable JESUS G. BERNAL, United
States District Judge

Attorney(s) Present for Plaintiff(s):
None Present
Attorney(s) Present for Defendant(s):
None Present
Proceedings:

Order (1) DENYING Defendants’ Motion
to Dismiss Pursuant to Rule 12(b)(1) of
the Federal Rules of Civil Procedure
(Dkt. No. 36); and (2) GRANTING Plaintiffs’ Motion for Preliminary Injunction
(Dkt. No. 15)

Two motions are before the Court. First, Plaintiffs
Aiden Stockman, Nicolas Talbott, Tamasyn Reeves,
Jaquice Tate, John Doe 1, John Doe 2, Jane Doe, and
(1a)

 2a
Equality California (collectively, “Plaintiffs”) have filed a
Motion for Preliminary Injunction. (“MPI,” Dkt. No. 15.)
Second, Defendants Donald J. Trump (“President
Trump”), in his official capacity as President of the
United States; James N. Mattis, in his official capacity
as Secretary of Defense; Joseph F. Dunford, Jr., in his
official capacity as Chairman of the Joint Chiefs of
Staff; Richard V. Spencer, in his official capacity as
Secretary of the Navy; Ryan D. McCarthy, in his official capacity as Acting Secretary of the Army; Heather
A. Wilson, in her official capacity as Secretary of the
Air Force; and Elaine C. Duke, in her official capacity
as Acting Secretary of Homeland Security (collectively,
“Defendants,”) have filed a Motion to Dismiss Pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
(“MTD,” Dkt. No. 36.)
The Court held a hearing on these matters on December 11, 2017. After considering the issues raised
in oral argument, the papers filed supporting and opposing these motions, and the amici briefs, the Court
DENIES Defendants’ Motion to Dismiss. Additionally, the Court GRANTS Plaintiffs’ Motion for Preliminary Injunction.
I.
A.

BACKGROUND

Procedural History

On September 5, 2017, Plaintiffs filed a complaint
against Defendants, asserting four causes of action:
(1) Fifth Amendment equal protection; (2) Fifth Amendment due process; (3) Fifth Amendment right to privacy;
and (4) First Amendment retaliation for free speech and
expression. (“Complaint,” Dkt. No. 1 ¶¶ 49-77.) Plaintiffs seek declaratory relief.

 3a
Plaintiffs filed their MPI on October 2, 2017. (Dkt.
No. 15.) Defendants filed their MTD and Opposition
to Plaintiffs’ MPI on October 23, 2017. (Dkt. No. 36.)
Plaintiffs filed a Reply for their Motion to Preliminary
Injunction and an Opposition to Defendants’ Motion to
Dismiss on November 6, 2017. (“MPI Reply,” Dkt. No.
47.) Defendants filed their MTD reply on November 13,
2017. (“MTD Reply,” Dkt. No. 61.)
B.

Factual History

The parties do not dispute the basic facts in this case.
In June 2016, after multiple years of data review, the
Department of Defense (“DOD”) announced it would
implement a new policy allowing transgender people to
serve openly in the United States military (“June 2016
Policy”). (See generally Dkt. No. 28, Exh. C.) In reliance on this policy change, many transgender individuals
came out to their chain of command without incident.
On July 26, 2017, President Trump changed course,
tweeting:
After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military.
Our military must be focused on decisive and overwhelming victory and cannot be burdened with the
tremendous medical costs and disruption that
transgender in the military would entail. Thank you.
(“President Trump’s Twitter Proclamation,” Dkt. No. 28,
Exh. F.)
On August 25, 2017, President Trump issued a memorandum (“Presidential Memorandum”) formalizing
the policy he announced via Twitter. (Dkt. No. 28,

 4a
Exh. G.) The Presidential Memorandum contains several operative prongs: (1) it indefinitely extends the
prohibition preventing transgender individuals from
entering the military (the “Accession Directive”); (2) it
requires the military to authorize the discharge of transgender service members (the “Retention Directive”);
and (3) it largely halts the use of DOD or Department
of Homeland Security (“DHS”) resources to fund sex
reassignment surgical procedures for current military
members (“Sex Reassignment Surgery Directive”) (collectively, “Directives”). (Id. at 47.) The DOD must
submit a plan implementing the Presidential Memorandum by February 2018. (Id.)
On September 14, 2017, Defendant Secretary of
Defense James Mattis (“Defendant Mattis”) issued an
“Interim Guidance”1 which established the temporary
DOD policy regarding transgender persons. (MTD at
7). While the Interim Guidance is in effect, no current
transgender service member will be discharged or denied reenlistment solely based on their transgender
status. Id. Defendant Mattis must present a plan to
implement the Presidential Memorandum to President
Trump by February 21, 2018. (Id.)
1.

Military Transgender Policy before July 2017

In August 2014, the DOD removed references to
mandatory exclusion based on gender and identity
disorders from its physical disability policy. (“Declaration of Eric K. Fanning,” Dkt. No. 22 ¶¶ 12-13.)
Neither party has included a copy of the Interim Guidance as an
exhibit, but a copy maybe found at https://defense.gov/Portals/1/
Documents/PDFs/Military-Service-By-Transgender-IndividualsInterim-Guidance.pdf (last visited December 8, 2017).
1

 5a
Additionally, the DOD directed each branch of the
armed forces to assess whether there remained any
justification to prohibit service by openly transgender
individuals. (Id. at 13.)
In July 2015, then-Secretary of Defense Ashton B.
Carter created a group to begin comprehensively analyzing whether any justification remained validating the
ban on open service by transgender individuals. (“Declaration of Brad Carson,” Dkt. No. 26 ¶¶ 8-9.) The
working group created by Secretary Carter included
the Armed Services, the Joint Chiefs of Staff, the service secretaries, and other specialists from throughout
the DOD (the “Working Group”). (Id. ¶ 9.) The review process included analyzing evidence from a variety
of sources, such as scholarly materials and consultations
with medical experts, personnel experts, readiness experts, health insurance companies, civilian employers,
and commanders of units with transgender service
members. (Id. ¶ 10.)
Additionally, the Working Group commissioned the
RAND Corporation, a nonprofit research institution
that provides analysis to the military, to complete a
comprehensive study on the impact of permitting transgender individuals to serve openly. (Id. ¶ 11.) The
113-page study, “Assessing the Implications of Allowing
Transgender Personnel to Serve Openly” (the “RAND
Report,” Dkt. No. 26, Exh. B), examined factors such as
the health care costs and readiness implications of
allowing open service by transgender persons. The
RAND Report also analyzed the other 18 foreign militaries which permit military service by transgender
individuals, focusing on Australia, Canada, Israel, and
the United Kingdom—the four countries “with the most

 6a
well-developed and publicly available policies on transgender military personnel.” (RAND Report at 23.)
This comparative analysis found no evidence that allowing open service by transgender persons would
negatively affect operational effectiveness, readiness,
or unit cohesion. (Id. at 24.) Moreover, the RAND
Report concluded healthcare costs for transgender
service members would “have little impact on and represents an exceedingly small proportion of [the DOD’s]
overall health care expenditures.” (Id. at 22-23.) Specifically, the RAND Report found health care costs would
increase “by between $2.4 million and $8.4 million annually.” (Id. at 22.) By contrast, the overall healthcare cost of those serving in the active component of the
military is approximately $6 billion annually, while the
overall healthcare cost for the DOD is $49.3 billion
annually. (Id. at 22-23.) Furthermore, the RAND Report noted discharging transgender service members,
“[a]s was the case in enforcing the policy on homosexual
conduct, [] can involve costly administrative processes
and result in the discharge of personnel with valuable
skills who are otherwise qualified.” (Id. at 77.) At the
conclusion of its analysis, the Working Group “did not
identify any basis for a blanket prohibition on open
military service of transgender people. Likewise, no
one suggested . . . that a bar on military service by
transgender persons was necessary for any reason,
including readiness or unit cohesion.” (Declaration of
Eric K. Fanning ¶ 27.)
Based on the results of this review process, on June
30, 2016, Secretary Carter issued a Directive-type Memorandum announcing transgender Americans may serve
openly and without fear of being discharged based solely

 7a
on that status. (“DTM 16-005,” Dkt. No. 22, Exh. C.)
Secretary Carter stated:
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.
(Id. at 135.)
This assessment was shared by some of the highest
ranking military officials in the country. (See generally Declaration of Eric K. Fanning; “Declaration of
Michael Mullen,” Dkt. No. 21; “Declaration of Raymond
E. Mabus,” Dkt. No. 23; “Declaration of Deborah L.
James,” Dkt. No. 24.) According to the directive,
transgender individuals would be permitted to enlist in
the military and serve openly beginning on July 1, 2017.
(DTM 16-005, at 137.) This date was later postponed
until January 1, 2018. (See Dkt. No. 28, Exh. E.) The
DOD also issued handbooks, regulations, and memorandums which provided instruction to military commanders in how to implement the new policies, set forth
guidance related to medical treatment provisions, and
expressly prohibited discrimination on the basis of gender identity. (See “Transgender Service in the U.S.
Military,” Dkt. No. 22, Exh. 6.)
The former military leaders among the Working
Group, such as, former Secretary of the Army Eric K.
Fanning, former Chairman of the Joint Chiefs of Staff
Admiral Michael Mullen, former Secretary of the Navy

 8a
Raymond E. Maubus, and former Secretary of the Air
Force Deborah L. James, have all explicitly drawn
parallels connecting the allowance of open service by
transgender persons to the allowance of open service by
gay and lesbian persons. (See Declaration of Eric K.
Fanning ¶¶ 10-16; Declaration of Michael Mullen ¶¶ 9-15;
Declaration of Raymond E. Mabus ¶¶ 19, 24; Declaration of Deborah L. James ¶ 44.) These leaders contend
many of the same worries accompanying allowing open
transgender service were vocalized, any eventually allayed, in the context of ending “Don’t Ask Don’t Tell.”
(See Declaration of Eric K. Fanning ¶¶ 10-16; Declaration of Admiral Michael Mullen ¶¶ 9-15; Declaration of
Raymond E. Mabus ¶¶ 19, 24; Declaration of Deborah
L. James ¶ 44.)
2.

Military Transgender Policy after July 2017

On July 26, 2017, President Trump changed course,
announcing via Twitter that transgender individuals
would not be permitted to serve in the military. (President Trump’s Twitter Proclamation.) One month
later, his Presidential Memorandum promulgated the
Accession Directive, Retention Directive, and Sex Reassignment Surgery Directive. (Presidential Memorandum.) President Trump stated the Obama Administration had “dismantled the [DOD and DHS’s] established framework by permitting transgender individuals to serve openly in the military.” (Id.) Additionally, he stated the Obama Administration failed to identify
a sufficient basis to conclude ending the longstanding
policy against open transgender service “would not
hinder military effectiveness and lethality, disrupt unit
cohesion, or tax military resources.” (Id.) The Accession Directive extends the policy prohibiting open

 9a
accession into the military beyond January 1, 2018.
The Retention and Sex Assignment Directives take
effect on March 23, 2018. (Id.)
On September 14, 2017, Defendant Mattis issued the
Interim Guidance, which stated the accession prohibition “remain[s] in effect because current or history of
gender dysphoria or gender transition does not meet
medical standards.” (Interim Guidance.) The Interim
Guidance notes this general prohibition is still “subject
to the normal waiver process.” (Id.) By February 21,
2018, Defendant Mattis must submit to President
Trump “a plan to implement the policy and directives in
the Presidential Memorandum.” (Id.)
Regarding the Sex Assignment Directive, the Interim
Guidance provides “[s]ervice members who receive a
gender dysphoria diagnosis from a military medical
provider will be provided treatment for the diagnosed
medical condition.” (Id.) However, “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.” (Id.) This language essentially
mirrors that of the Presidential Memorandum. (Presidential Memorandum.)
The reception to President Trump’s policy change by
the military has been somewhat critical. Current
Chairman of the Joint Chiefs of Staff Joseph Dunford
disagrees with the decision to reinstate the transgender
ban, stating he “believe[s] that any individual who
meets the physical and mental standards . . . should
be afforded the opportunity to continue to serve.”
(Dkt. No. 28, Exh. I.) He has also previously told

 10a
lawmakers transgender troops have served the military
honorably and he would continue to abide by this sentiment for as long as he holds his position. (Id.)
Additionally, it is not clear the nation’s top military
leaders were consulted about this policy change prior to
President Trump’s Twitter Proclamation. (See Dkt.
No. 28, Exh. M.) Moreover, after the promulgation of
President Trump’s tweets, 56 retired generals and admirals signed a declaration stating a ban on open service
by transgender persons would degrade military readiness. (Dkt. No. 28, Exh. O.)
C. The Plaintiffs
1.

Aiden Stockman

Plaintiff Aiden Stockman is a transgender man from
California who intended to join the Air Force. (“Stockman Declaration,” Dkt. No. 16 ¶ 1.) Plaintiff Stockman
has conducted online research to prepare for the enlistment process, including talking to friends and neighbors stationed at an Air Force base near his home. (Id.
¶ 9.) He came out to his family as transgender during
his sophomore year of high school. (Id. ¶ 4.) During
his junior year, he took the Armed Services Vocational
Aptitude Battery (“ASVAB”) test in hopes he could join
the military upon graduation. (Id. ¶ 10.) Plaintiff
Stockman intends to undergo chest surgery, also called
“top surgery” as soon as possible, likely in the spring of
2018. (Id. ¶ 11.) He states that if the ban were lifted,
he would go talk with a recruiter about enlisting as soon
as his chest surgery is completed. (Id. ¶ 15.)

 11a
2.

Nicolas Talbott

Plaintiff Nicolas Talbott is a transgender man from
Ohio who intended to join the Air Force National Guard.
(“Talbott Declaration,” Dkt. No. 17 ¶ 1.) Plaintiff Talbott came out as transgender to his mother at the age of
16 and, in 2012, started taking hormones according to
his transition plan. (Id. ¶¶ 5-6.) He states he tried to
enlist but the military recruiters would not allow him
because of his transgender status. (Id. ¶ 7.) After he
learned the accession ban was lifted in June 2016,
Plaintiff Talbott spoke with an Air Force National
Guard recruiter who advised him to enlist. (Id. ¶ 11.)
Plaintiff Talbott was told to get letters certifying that
being transgender had no adverse effects on his ability
to serve and that older, unrelated injuries would also
have no adverse effects. (Id.) He then began studying for the ASVAB in anticipation of being allowed to
join the military, but President Trump’s Twitter Proclamation discouraged him. (Id. ¶ 14.) Plaintiff Talbott maintains he would seek immediate enlistment
were the ban lifted today. (Id. ¶ 16.)
3.

Tamasyn Reeves

Plaintiff Tamasyn Reeves is a transgender woman
from California who wants to serve in the Navy.
(“Reeves Declaration,” Dkt. No. 18 ¶ 1.) Plaintiff Reeves
had tried to enlist in the military in 2010, but was rejected because she, at the time, identified as gay. (Id.
¶ 5.) In 2011, she learned about what it means to be
transgender and started coming out to her colleagues
and friends. (Id. ¶ 6.) A year later, she started taking
hormones to begin her medical transition. (Id. ¶ 7.)
The policy change June 2016 excited Plaintiff Reeves,
and she intended to enlist as soon as she finished her

 12a
college degree. (Id. ¶ 9.) The revived ban, however,
sunk her hopes. (Id. ¶ 10.) She states she would
immediately talk to a recruiter about enlisting upon
receiving her degree in the spring of 2018 if the ban was
lifted. (Id. ¶ 12.)
4.

Jaquice Tate

Plaintiff Jaquice Tate is a transgender man currently
serving as a Sergeant in the Army. (“Tate Declaration,” Dkt. No. 19 ¶ 1.) He enlisted in 2008 and has
served domestically, in Germany, and on deployment in
Iraq. (Id. ¶ 4.) For his service in Iraq, he was awarded
an Army Commendation Medal. (Id. ¶ 6.) He has also
received multiple Army Achievement Medals, Certificates of Appreciation, and two Colonel Coins of Excellence. (Id. ¶ 11.) Plaintiff Tate, in reliance on the
June 2016 Policy, came out to his chain of command.
(Id. ¶ 19.) In Fall of 2016, Plaintiff Tate, in conjunction
with his chain of command and his doctor, created his
medical transition plan. (Id. ¶ 21.) Consequently, he
started taking hormones in February 2017 and received
approval for chest surgery. (Id.) Plaintiff Tate expects to receive chest surgery in late 2017 or early 2018.
(Id.) Plaintiff Tate feels as though the ban demeans
his years of military service. (Id. ¶ 23.)
5.

John Doe 1

Plaintiff John Doe 1 is a transgender man who currently serves as a Non-Commissioned Officer in the Air
Force. (“John Doe 1 Declaration,” Dkt. No. 29, Exh. 2.)
Plaintiff John Doe 1 grew up in a military family and
intends to make a career out of his military service.
(Id. ¶¶ 2-3.) He has received numerous commendations and endorsements from his chain of command.

 13a
(Id. ¶¶ 7-8.) In April 2017, in reliance on the June 2016
Policy, he came out to his chain of command and received a medical transition plan. (Id. ¶ 17.) Plaintiff
John Doe 1 fears he will be discharged under the express
terms of the ban. (Id. ¶ 19.) He understands the Sex
Reassignment Surgery Directive denies him transitionrelated medical care. (Id. ¶ 21.) Consequently, he
intends to pay out-of-pocket for chest surgery. (Id.)
Plaintiff John Doe 1 is bewildered at how he went from
first in his class at Airmen Leadership School to being
deemed unfit to serve. (Id. ¶ 25.)
6.

John Doe 2

Plaintiff John Doe 2 is a transgender man who currently serves in the Army. (“John Doe 2 Declaration,”
Dkt. No. 29, Exh. 3.) Plaintiff John Doe 2 enlisted in
2015 at the age of 17, and earned two Colonel Coins of
Excellence by August 2017. (Id. ¶ 6.) He possess
technical expertise pertaining to the operations, diagnostics, and maintenance of multichannel communications systems necessary for the Army to make real-time
tactical decisions. (Id. ¶ 5.) His position requires
Secret-level security clearance. (Id.) He expects to
serve in the Army until he is eligible to receive retirement benefits. (Id. ¶ 11.) While Plaintiff John Doe 2
realized he was transgender in his junior year of high
school, he did not come out to anyone until he joined the
Army. (Id. ¶¶ 15, 18.) In reliance on the June 2016
policy change, he came out to his chain of command and
began researching the new policies and guidance. (Id.
¶¶ 20-21.) He worked with an Army doctor to develop a
medical transition plan and treatment. (Id. ¶ 21.)
After meeting with his commander and doctors, Plaintiff John Doe 2 was approved for chest surgery, and

 14a
expects to have it completed in March 2018. (Id. ¶ 22.)
He anticipates completing his medical transition by
2020. (Id.) However, after the promulgation of the
Presidential Memorandum, he fears being subject to an
imminent involuntary discharge. (Id. ¶¶ 28-29.)
7.

Jane Doe 2

Plaintiff Jane Doe is a transgender woman currently
serving in the Air Force. (“Jane Doe Declaration,”
Dkt. No. 29, Exh. 4.) Plaintiff Jane Doe entered the
military in 2010, having already completed her college
degree. (Id. ¶¶ 2-3.) As a consequence, she entered
the military as an Airman First Class. (Id. ¶ 3.) After
basic training, she was stationed domestically then
selected for deployment in the Middle East. (Id.) She
has received an Air Force Commendation Medal for
distinctly exemplary service. (Id. ¶ 5.) Plaintiff Jane
Doe intends on serving in the military until she is eligible for a pension and retirement benefits. (Id. ¶ 9.)
While she identified as transgender at age 14, she
waited until college to come out to those closest to her.
(Id. ¶ 11.) In reliance on the June 2016 policy change,
she came out to the rest of her family and to the public,
updating her social media to her correct gender. (Id.
¶ 13.) With her chain of command and doctor, she
created a medical transition plan which had received all
the necessary approvals. (Id. ¶ 14.) She fears the Presidential Memorandum will strip her of her career, salary, and housing. (Id. ¶¶ 15-18.)
8. Equality California

Plaintiff Equality California (“EQCA”) is an organization dedicated to LGBTQ civil rights. (“Declaration
of Rick Zbur,” Dkt. No. 20 ¶ 2.) Its membership in-

 15a
cludes transgender individuals in active service, transgender military veterans, and transgender individuals
who have intend to pursue long-term military careers.
(Id. ¶ 4.)
D.

Pending Cases

On October 30, 2017, the Honorable Colleen KollarKotelly of the D.C. District Court issued a nationwide
injunction concerning the Accession and Retention
Directives. See Doe 1 v. Trump, --- F. Supp. 3d ----, CV
17-01597 (CKK), 2017 WL 4873042, at *2 (D.D.C. Oct.
30, 2017). That court, however, dismissed the Sex
Reassignment Surgery Directive claim, holding the
plaintiffs lacked standing to challenge that directive.
Id. at *23-24. The court noted one plaintiff, who had
her transition-related procedure canceled by the Defense Health Agency, later received a waiver and is
currently having her request processed. Id. at *24. A
second plaintiff ’s prospective harm was deemed too
speculative, as her transition treatment plan would not
begin until after she returned from active duty in Iraq.
Id. Finally, a third plaintiff is set to begin transition
surgery before the ban would go into effect, also excluding him from harm. Id. The court concluded “no
Plaintiffs have demonstrated that they are substantially
likely to be impacted by the Sex Reassignment Surgery
Directive, and none have standing to challenge that
directive.” Id.
The court in Doe 1 conducted a lengthy analysis regarding the import of the Presidential Memorandum.
As here, Defendants in Doe 1 essentially argued “the
Presidential Memorandum merely commissioned an
additional policy review; that review is underway; nothing is set in stone, and what policy may come about is

 16a
unknown; and regardless, Plaintiffs are protected by
the Interim Guidance.” Id. at *17. Finding the defendants’ arguments to be a “red herring,” the court
stated:
The President controls the United States military.
The directives of the Presidential Memorandum, to
the extent they are definitive, are the operative policy toward military service by transgender service
members. The Court must and shall assume that
the directives of the Presidential Memorandum will
be faithfully executed. See Nat’l Mining Ass’n v.
U.S. Army Corps of Engineers, 145 F.3d 1399, 1408
(D.C. Cir. 1998) (assessing “faithful” application of
agency rule). Consequently, the Interim Guidance
must be read as implementing the directives of the
Presidential Memorandum, and any protections afforded by the Interim Guidance are necessarily limited to the extent they conflict with the express directives of the memorandum.
. . .
Nothing in the August 2017 Statement by Secretary
Mattis, or the Interim Guidance, can or does alter
these realities. The Statement provides that Secretary Mattis will establish a panel of experts “to
provide advice and recommendations on the implementation of the president’s direction.” After the
“panel reports its recommendations and following
. . . consultation with the secretary of Homeland
Security,” Secretary Mattis will “provide [his] advice
to the president concerning implementation of his
policy direction.” Put differently, the military is
studying how to implement the directives of the
Presidential Memorandum. Such a policy review

 17a
and implementation plan are likely necessitated by
the fact that—as borne out by the RAND Report and
the declarations submitted by the Pseudonym
Plaintiffs—transgender service members occupy a
variety of crucial positions throughout the military,
including active duty postings in war zones. Presumably, the removal and replacement of such individuals during a time of war cannot occur overnight.
Accordingly, Defendants are correct that policy decisions are still being made. But the decisions that
must be made are how to best implement a policy
under which transgender accession is prohibited,
and discharge of transgender service members is
authorized. Unless the directives of the Presidential Memorandum are altered—and there is no evidence that they will be—military policy toward
transgender individuals must fit within these confines.
. . .
Finally, although Defendants make much of the protections afforded by the Interim Guidance to transgender individuals, that protection is necessarily
qualified by the Presidential Memorandum. The
Interim Guidance provides that: “As directed by the
[Presidential] 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.”
(Emphasis added). The protections afforded by the
Presidential Memorandum lapse by February 21,
2018, and discharge must be authorized by March 23,
2018. The Interim Guidance can do nothing to obviate these facts. Nor is standing vitiated by the

 18a
mere possibility that the President may alter the
directives of the Presidential Memorandum. See
Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022
(D.C. Cir. 2000) (“[A]ll laws are subject to change.
Even that most enduring of documents, the Constitution of the United States, may be amended from
time to time. The fact that a law may be altered in
the future has nothing to do with whether it is subject to judicial review at the moment.”). Nor is
there evidence that such a change may occur, given
the President’s unequivocal pronouncement that
“the United States government will not accept or
allow transgender individuals to serve in any capacity in the U.S. military.”
Id. at *17-18 (emphasis in original). The Court considers Doe to be persuasive authority, and finds its analysis sound and useful.
On November 21, 2017, the Honorable Marvin J.
Garbis of the District of Maryland issued a nationwide
injunction concerning the Accession Directive, the Retention Directive, and the Sex Reassignment Surgery
Directive. Stone v. Trump, --- F. Supp. 3d ---- No. CV
MJG-17-2459, 2017 WL 5589122, at *16 (D. Md. Nov. 21,
2017). Distinguishing the plaintiffs before it from the
plaintiffs in Doe 1, the Stone court noted plaintiffs
Stone and Cole were “highly unlikely to complete their
medically-necessary surgeries before the effective date
of the Directive.” Id. at *13. Additionally, while the
Doe 1 court found a disqualifying lack of certainty impeded the plaintiffs’ standing, the Stone court stated
there is “no lack of certainty regarding when transition
treatment will begin for [plaintiffs] Stone and Cole since
treatment has already begun, and [their] surgeries are

 19a
endangered by the Directive’s deadline.” Id. That
court approvingly cited the standing and constitutional
analysis in Doe 1. Id. at *10, 15.
II. MOTION TO DISMISS

Defendants present a two-pronged challenged to
Plaintiffs’ Complaint. First, they assert Plaintiffs lack
standing and do not face an imminent threat of future
injury. Alternatively, they assert Plaintiffs’ claims are
unripe and not yet fit for judicial determination. (MTD
at 11.) For the reasons stated below, the Court concludes it has jurisdiction to determine the constitutionality of the Accession Directive, Retention Directive,
and Sex Reassignment Surgery Directive.
A.

Legal Standard

Under Rule 12(b)(1), a party may bring a motion to
dismiss for lack of subject-matter jurisdiction. Fed. R.
Civ. P. 12(b)(1). A challenge to the court’s jurisdiction
may be facial or factual. Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White
v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a facial
attack, the moving party asserts the allegations contained in a complaint are insufficient on their face to
invoke federal jurisdiction. Safe Air, 373 F.3d at 1039.
By contrast, in a factual attack, the moving party disputes the truth of allegations that, by themselves, would
otherwise invoke federal jurisdiction. Id.
When considering a factual attack, a court applies a
standard similar to that used in deciding summary
judgment motions. Evidence outside the pleadings
may be considered, but all factual disputes must be
resolved in favor of the nonmoving party. See Dreier
v. United States, 106 F.3d 844, 847 (9th Cir. 1996). If

 20a
the moving party presents admissible evidence in support of its motion, “the party opposing the motion must
furnish affidavits or other evidence necessary to satisfy
its burden of establishing subject matter jurisdiction.”
Savage v. Glendale Union High Sch., 343 F.3d 1036,
1039 n.2 (9th Cir. 2003).
In a facial challenge, “a court examines the complaint
as a whole to determine whether the plaintiff has alleged
a proper basis of jurisdiction.” Watson v. Chessman,
362 F. Supp. 2d 1190, 1194 (S.D. Cal. 2005). Again, a
plaintiff ’s complaint is treated similarly to a summary
judgment motion: the allegations are treated as true
and all inferences are drawn in favor of the plaintiff.
Id. “The court will not, however, infer allegations
supporting federal jurisdiction; federal subject matter
must always be affirmatively alleged.” Id. (quoting
Century Sw. Cable Television, Inc. v. CIIF Assocs.,
33 F.3d 1068 (9th Cir. 1994)). When a plaintiff relies on
the general federal question statute, 28 U.S.C. § 1331,
“a claim not arising under the United States Constitution, or any federal statute . . . . will not generally
survive a Rule 12(b)(1) facial attack.” Id. (internal
citations and quotation marks omitted).
B.

Standing

“Constitutional standing concerns whether the
plaintiff ’s personal stake in the lawsuit is sufficient to
make out a concrete ‘case’ or ‘controversy’ to which the
federal judicial power may extend under Article III,
§ 2.” Pershing Park Villas Homeowners Ass’n v.
United Pacific Ins. Co., 219 F.3d 895 (9th Cir. 2000).
“[T]he irreducible constitutional minimum of standing”
is comprised of three elements: (1) an injury-in-fact;
(2) a causal connection between the injury and chal-

 21a
lenged conduct such that the injury is “fairly traceable”
to the challenged action; and (3) it must be “likely,” not
merely “speculative” that the injury can be redressed
by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The injury-in-fact
must be “concrete and particularized” and “actual or
imminent, not conjectural or hypothetical.” Id. at 560.
“The party invoking federal jurisdiction bears the burden of establishing these elements.” Id. at 561.
“The law of Article III standing, which is built on
separation-of-powers principles, serves to prevent the
judicial process from being used to usurp the powers of
the political branches.” Clapper v. Amnesty Int’l USA,
568 U.S. 398, 408 (2013). Thus, the “standing inquiry
has been especially rigorous when reaching the merits
of the dispute would force us to decide whether an action taken by one of the other two branches of Government was unconstitutional.” Id. (quoting Raines v.
Byrd, 521 U.S. 811, 819 (1997)). Importantly, when
there are multiple plaintiffs, “[a]t least one plaintiff must
have standing to seek each form of relief requested in the
complaint.” Town of Chester, N.Y. v. Laroe Estates,
Inc., 137 S. Ct. 1645, 1650-51 (2017).
Defendants argue Plaintiffs have not demonstrated
injury-in-fact. (MTD at 17.) For the foregoing reasons, the Court finds Plaintiffs met their burden and
have standing to challenge the Accession, Retention,
and Sex Reassignment Surgery Directives.
1.

Accession Directive

The Accession Directive indefinitely extends the prohibition preventing transgender individuals from entering the military. The prohibition would have expired

 22a
on December 31, 2017. Defendants argue no Plaintiff
“has been denied accession into the military, which could
be denied for numerous reasons wholly unrelated to an
applicant’s transgender status.” (Id. at 18.) Additionally, “allegations of speculative future harms are
insufficient to establish standing.” (Id.) Defendants
have made this argument twice before, to no avail. See
Stone, 2017 WL 5589122, at *11; Doe 1, 2017 WL
4873042, at *20-22. Citing Adarand Constructors, Inc.
v. Pena, 515 U.S. 200, 205, (1995), Gratz v. Bollinger,
539 U.S. 244, 251 (2003), and Parents Involved in Cmty.
Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 709-10
(2007), the Doe 1 court noted the appropriate inquiry is
two-pronged: (1) whether the plaintiff is “very likely”
to apply for accession “in the relatively near future”;
and (2) whether the plaintiff is “substantially likely to
hit a barrier when he applies for accession.” Doe 1,
2017 WL 4873042, at *21. The court found it was likely
one of the plaintiffs will graduate from the Naval Academy and attempt to accede, and “[a]nything else is the
product of mere speculation.” Id. Likewise, based on
a plaintiff ’s declarations and testimony showing he had
already met with a recruiting officer and had plans to
accede which “are not speculative,” the Stone court also
found a plaintiff faced a “substantial risk” that his “attempt to accede . . . will be prohibited solely on the
basis of his transgender status.” Stone, 2017 WL
5589122, at *11. Defendants’ argument leaves this Court
similarly unpersuaded.
Here, Plaintiffs Stockman, Talbott, and Reeves have
separately demonstrated an affirmative intent to join
the military, going as far as to take the ASVAB,
speaking with military recruiters, and attempting to
join even before Secretary Carter promulgated DTM

 23a
16-005. (See Declaration of Aiden Stockman ¶¶ 9-11;
Declaration of Nicolas Talbott ¶¶ 7-16; Declaration of
Tamasyn Reeves ¶¶ 7-12.) These Plaintiffs all declare
that, were the ban lifted today, they would seek enlistment. See Declaration of Aiden Stockman ¶ 15;
Declaration of Nicolas Talbott ¶ 16; Declaration of
Tamasyn Reeves ¶ 12.) While Defendants argue Plaintiffs may be eligible for individualized waivers (MTD at
18), Plaintiffs contend, and the Doe 1 court agreed,
transgender people have never been eligible for medical
waivers. See Doe 1, 2017 WL 4873042, at *21 (finding
“no evidence that waivers are actually made available to
transgender individuals, or that they will be”); Supplemental Declaration of Eric K. Fanning, Dkt. No. 47-1
¶ 11; Supplemental Declaration of Raymond Edwin
Maybus Jr., Dkt. No. 47-2 ¶ 10.) Additionally, even if
Plaintiffs could successfully apply for a waiver, the need
to apply for one when no other group must do so is likely
also a violation of equal protection rights. See Hawaii
v. Trump, 859 F.3d 741, 767-68 (9th Cir. 2017) (holding a
plaintiff need not wait for a denial of discretionary waiver from the travel ban in order to challenge the ban),
vacated as moot on other grounds, 2017 WL 4782860, at
*1 (U.S. Oct. 24, 2017); Doe 1, 2017 WL 4873042, at *21
(stating “even if a bona fide waiver process were made
available . . . [this] would not vitiate the barrier that
[the plaintiff] claims is violative of equal protection.”)
Based on the submitted declarations, the Court is
convinced Plaintiffs Stockman, Talbott, and Reeves are
highly likely to apply for accession in the relatively near
future and are substantially likely to hit a barrier upon
that application. This injury is concrete, particularized,
imminent, and not at all hypothetical. Consequently,

 24a
Plaintiffs have standing to challenge the Accession
Directive.
2.

Retention Directive

Beginning on March 23, 2018, the Retention Directive authorizes the discharge of military members solely
on the basis of their transgender status. (See Presidential Memorandum; President Trump’s Twitter Proclamation.) Defendants argue Plaintiffs merely “may
be discharged from the military in the future” and note,
as of yet, no transgender service member has been discharged. (MTD at 17 (emphasis added).) Consequently, “Plaintiffs’ speculation that they may be discharged in the future is insufficiently concrete and imminent to establish standing.” Id. However, by characterizing Plaintiffs’ fear as “speculation,” Defendants
ignore the surrounding political and legal realities.
The Commander-in-Chief of the military, President
Trump, announced:
After consultation with my Generals and military
experts, please be advised that the United States
Government will not accept or allow Transgender
individuals to serve in any capacity in the U.S.
Military. Our military must be focused on decisive
and overwhelming victory and cannot be burdened
with the tremendous medical costs and disruption
that transgender in the military would entail.
Thank you.
(President Trump’s Twitter Proclamation, (emphasis
added).)
This proclamation has been expanded into a full
Presidential Memorandum, which proclaims the Retention Directive is set to begin on March 23, 2018.

 25a
(Presidential Memorandum.) Nonetheless, Defendants untenably argue that Plaintiffs’ fear of being discharged is speculative because no one has yet been discharged. (MTD at 17.) This logic falls apart under
scrutiny, however, as the Presidential Memorandum does
not even take effect until 2018. The Presidential Memorandum is clear in its intent, force, and impending effect.
Plaintiffs argue courts routinely decide questions of
constitutionality before the promulgation of implementing regulations. (MPI Reply at 10, citing Union
Pac. R.R. Co. v. Cal. Pub. Utils. Comm’n, 346 F.3d 851,
872 n.22 (9th Cir. 2003) (holding statutory challenge
justiciable despite absence of implementing regulations
“because it is clear that any standard required” would
violate the constitution although no standard had yet
issued); Nance v. EPA, 645 F.2d 701, 713, 717 (9th Cir.
1981) (holding statutory challenge justiciable although
the “EPA has not yet promulgated regulations under
the amended act).) The Court agrees with Plaintiffs’
position. Plaintiffs Tate, John Doe 1, and John Doe 2,
all current military service members, plausibly fear
discharge once the Retention Directive becomes operative. (See Tate Declaration ¶ 25; John Doe 1 Declaration ¶ 19; John Doe 2 Declaration ¶¶ 28-29.) This fear
is appropriately born out of President Defendant Trump’s
Twitter Proclamation, the Presidential Memorandum,
and the Interim Guidance. Consequently, the Court
finds Plaintiffs Tate, John Doe 1, and John Doe 2 face
concrete, particularized, and imminent injury. Accordingly, they have standing to challenge the constitutionality of the Retention Directive.

 26a
3.

Sex Reassignment Surgery Directive

The Court believes it useful to juxtapose Plaintiffs
against the plaintiffs in Doe 1. The Doe 1 plaintiffs
failed this first prong of the standing inquiry, as the
court found “the risk of being impacted by the Sex
Reassignment Surgery Directive is not sufficiently
great to confer standing.” 2017 WK 4873042 at * 23.
As previously discussed, that court noted Jane Doe 1’s
transition related procedure had been canceled, but defendants had submitted a declaration stating Jane Doe
1 had received a “health care waiver necessary to receive a transition-related surgery [and] is currently
being processed.” Id. at 24. This finding rendered
Jane Doe 1 ineligible to challenge the Sex Reassignment Surgery Directive. Additionally, Jane Doe 3
would not have begun her transition plan until after she
returns from active deployment in Iraq. Id. The
court found “[g]iven the possibility of discharge, the
uncertainties attended by the fact that she has yet to
begin any transition treatment, and the lack of certainty
on when such treatment will begin, the prospective
harm . . . is too speculative to constitute an injury in
fact.” Id. Finally, one of the named plaintiffs had
stated that he would transition prior to applying for
accession; therefore, he also failed to show injury-infact. Id.
Here, Plaintiff John Doe 1 received a medical transition plan in April 2017. (John Doe 1 Declaration
¶ 17.) He has also received a diagnosis of gender dysphoria. (“John Doe 1 Supplemental Declaration,” Dkt.
No. 47-6 ¶ 2.) As a part of his plan, he is to begin taking
Hormone Replacement Therapy (“HRT”) “later this
year,” “once [he receives] final approvals from the

 27a
Medical Multidisciplinary Team and [his] commander.”
(Id. ¶ 3.) He is scheduled to receive chest surgery in
mid-2018 and sex organ surgery in 2020. (Id. ¶¶ 4-5.)
Plaintiff John Doe 2 received a formal diagnosis of gender dysphoria in October 2016. (“John Doe 2 Supplemental Declaration,” Dkt. No. 47-7 ¶ 2.) He began
HRT in March 2017. (Id. ¶ 3.) His transition plan
includes a projected chest surgery date in April 2018
and sex organ surgery by the end of 2021. (Id. ¶¶ 4-5.)
According to the Presidential 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.” (Presidential Memorandum.) In deciding whether Plaintiffs have standing to
challenge the Sex Reassignment Surgery Directive, the
Court ordered the parties to submit supplemental
briefing discussing the definition of the terms “necessary to protect the health” and “begun a course of
treatment to reassign his or her sex.” (Dkt. No. 66.)
Additionally, the Court asked the parties to discuss
whether and how these terms apply to Plaintiffs John
Doe 1 and John Doe 2. (Id.) In response to the
Court’s order, Defendants argue the Sex Reassignment
Surgery Directive is currently under review and the
final definitions of these terms are not yet ascertainable. (Dkt. No. 70, at 3.) Thus, Defendants contend
Plaintiffs have not demonstrated injury-in-fact because
no one yet knows what the future policy will be. (Id.)
Despite this hand waiving, Defendants suggest the definitionally hollow term “necessary to protect the health”
may equate to the legally hefty term “medically necessary.” (Id. at 5-6.) However:

 28a
As of now, Defendants therefore cannot state what
the full scope and impact of [the] future policy will
be with respect to sex reassignment surgery until the
pending review is completed, including whether or
not [the] current understanding of the terms ‘necessary to protect the health’ or ‘begun a course of
treatment to reassign his or her sex’ will be altered
in the future.
(Id. at 6.)
By contrast, Plaintiffs contend reading the Sex Reassignment Surgery Directive in context of the overall
directive shows that it is intended to deny coverage of
the surgery except in cases where the surgery is “necessary to protect the health of a transgender service
member for a reason unrelated to gender transition.”
(Dkt. No. 72 (emphasis in original).) Plaintiffs note the
Sex Reassignment Surgery Directive is not an isolated
order but is part of a larger policy directive excluding
transgender people from military service. (Id.) They
argue the purpose of the Directive is to “hasten the departure of transgender individuals from the military,
both by sending a clear message that they are unwelcome and by causing some current service members to
leave military service because they cannot obtain
needed medical care.” (Id. at 4.) Moreover, Plaintiffs
believe Defendants chose the ambiguous phrase “necessary to protect the health” as a way of intentionally
avoiding the common legal term “medically necessary.”
(Id. at 5.) The interpretation must be different because then the surgeries would continue whenever they
were proscribed as part of a gender transition plan, a
reading which would “essentially nullify the Directive
and contravene President Trump’s premise about the

 29a
cost of surgical care.” Stone, 2017 WL 558122 at *13.
Notably, Defendants made the same argument before
the Stone court, which stated:
[I]f the exception were to be interpreted under the
broad terms proposed by Defendants, the ‘exception’
would essentially nullify the Directive and Contravene President Trump’s premise about the cost of
surgical care . . . Defendants may not evade judicial review by advancing (or, in this case, weakly
suggesting) an interpretation of the challenged action that is both implausible and would fatally undercut the President’s announced policy.
Id. at *13 (citation omitted).
This Court is equally unpersuaded by Defendants’
construction of the Sex Reassignment Surgery exception. If the Sex Reassignment Surgery Directive means
anything, it means a transgender service member cannot receive the surgery simply because it is “medically
necessary.” President Trump stated the policy change
is occurring because the military would be “burdened
with the tremendous medical costs.” (President Trump’s
Twitter Proclamation.) Allowing sex reassignment surgeries whenever they became medically necessary would
result in the exception swallowing the rule and would do
nothing to address President Trump’s concerns. Perhaps anticipating this outcome, Defendants equivocate
in their briefing, only suggesting that “necessary to
protect the health” might equate to “medical necessity”
instead of firmly proffering a definition. Defendants
hesitated when deciding whether the exception applies
to Plaintiffs (MTD Reply at 7, (stating that Plaintiffs
“potentially fall within the exception to the funding
directive”)), and now attempt to forge that hesitation

 30a
into an axe sharp enough to chop down Plaintiffs’ standing argument. As Defendants are not able to outright
state Plaintiffs fit into the exception and are entitled to
the surgery, Plaintiffs’ fears that the surgery will be
denied are plausible given the plain words of President
Trump. Consequently, Plaintiffs John Doe 1 and John
Doe 2 have demonstrated injury-in-fact as it pertains to
the Sex Reassignment Surgery Directive.
As an aside, despite the Court’s order for supplemental briefing, neither party addressed the meaning of
“begun a course of treatment to reassign his or her sex.”
This definition could be impactful as it is not at all clear
Plaintiff John Doe 1 stands on the same jurisdictional
footing as Plaintiff John Doe 2. Without supplemental
briefing the Court cannot be certain, but it appears
Plaintiff John Doe 1 may not have yet started HRT,
while Plaintiff John Doe 2 began it earlier this spring.
(Compare John Doe 1 Supplemental Declaration ¶ 3
with John Doe 2 Supplemental Declaration ¶ 3.) Consequently, Plaintiff John Doe 1 may not have sufficiently “begun a course of treatment to reassign his or
her sex,” and thus would be ineligible for the exception
regardless if the surgery was “necessary to protect” his
health.
C.

Ripeness

Alternatively, Defendants argue this case should be
dismissed because it is not ripe to be adjudicated. A
dispute is ripe when it presents concrete legal issues in
actual cases. Colwell v. HHS, 558 F.3d 1112, 1123 (9th
Cir. 2009). “Ripeness and standing are closely related
because they originate from the same Article III limitation.” Montana Envtl. Info. Ctr. v. Stone-Manning,
766 F.3d 1184, 1188 (9th Cir. 2014) (citing Susan B.

 31a
Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 n.5
(2014)). In fact, “in many cases, ripeness coincides
squarely with standing’s injury in fact prong.” Thomas
v. Anchorage Equal Rights Comm’n, 220 F.3d 1134,
1138 (9th Cir. 2000) (en banc) (“The constitutional component of the ripeness inquiry is often treated under the
rubric of standing. . . . Indeed, because the focus of
our ripeness inquiry is primarily temporal in scope, ripeness can be characterized as standing on a timeline.”)
Plaintiffs have satisfied the injury-in-fact requirements and have standing to challenge the Accession,
Retention, and Sex Reassignment Surgery Directives.
Thus, Plaintiffs also have established constitutional
ripeness. Bishop Paiute Tribe v. Inyo Cty., 863 F.3d
1144, 1153 (9th Cir. 2017). Defendants’ ripeness argument is not based in constitutional ripeness, but prudential ripeness. Whether a dispute is ripe depends on
“the fitness of the issues for judicial decision” and “the
hardship to the parties” of withholding review. Abbott
Labs. v. Gardner, 387 U.S. 136, 149 (1967), overruled on
other grounds by Califano v. Sanders, 430 U.S. 99, 105
(1977).
This case is fit for judicial decision. President Trump
has unambiguously stated his policy intentions, then
formalized those intentions into an operative Presidential Memorandum. “The only uncertainties are how,
not if, the policy will be implemented and whether, in
some future context, the President might be persuaded
to change his mind and terminate the policies he is now
putting into effect.” Stone, 2017 WL 5589122, at *14.
The constitutionality of the Directives within the Presidential Memorandum are fit for constitutional review;
indeed, the Accession Directive goes into effect within a

 32a
few short weeks. (Presidential Memorandum.) The
Court need not wait for the Presidential Memorandum
to be fully implemented before determining its constitutionality. Union Pac. R.R. Co., 346 F.3d at 872 n.22.
Additionally, Plaintiffs would bear the brunt of the
harm were judicial review withheld. Plaintiffs have
demonstrated “they are already suffering harmful consequences such as the cancellation and postponements
of surgeries, the stigma of being set apart as inherently
unfit, facing the prospect of discharge, . . . the
inability to move forward with long-term medical plans,
and the threat to their prospects of obtaining long-term
assignments. Waiting until after the Directives have
been implemented to challenge their alleged violation of
constitutional rights only subjects them to substantial
risk of even greater harms.” Stone, 2017 WL 5589122,
at *14; Doe 1, 2017 WL 4873042, at *24-25 (“The directives are known, and so are the circumstances under
which they were issued. They cannot be more concrete, and future policy by the military—absent action
from the president—cannot change what the directives
require. . . . Furthermore, the nature of the equal
protection analysis in this case, which asses the facial
validity of the Presidential Memorandum, means that
the Court would not benefit from delay—the salient
facts regarding the issuance of the Presidential Memorandum are not subject to change.”)
Accordingly, having found Plaintiffs have standing to
challenge the Directives, and that this case is ripe for
judicial adjudication, the Court DENIES Defendants’
Motion to Dismiss Pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure.

 33a
III. MOTION FOR PRELIMINARY INJUNCTION
A.

Legal Standard

A plaintiff seeking a preliminary injunction must establish that: (1) he is likely to succeed on the merits,
(2) he is likely to suffer irreparable harm in the absence
of preliminary relief, (3) the balance of equities tips in
his favor, and (4) an injunction is in the public interest.
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). “A preliminary injunction is an extraordinary
and drastic remedy” that should not be granted “unless
the movant, by a clear showing, carries the burden of
persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972
(1997) (describing the “substantial proof ” requirement
to grant a preliminary injunction as much higher than
the burden of proof for a summary judgment).
The Ninth Circuit has adopted a “sliding scale” test
for preliminary injunctions. Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
Under this approach, the elements of the preliminary
injunction test are balanced, so that a stronger showing
of one element may offset a weaker showing of another.
Id. For example, “serious questions” as to the merits
of a case, combined with a showing that the hardships
tip sharply in the plaintiff’s favor, can support the issuance of an injunction, assuming the other two elements
of the Winter test are also met. Winter, 555 U.S. at 24
(“Courts must balance the competing claims of injury
and must consider the effect on each party of the granting
or withholding of the requested relief, and should pay
particular regard for the public consequences in employing the extraordinary remedy of injunction.”) Id.

 34a
A preliminary injunction can take two forms: either
a prohibitory injunction or a mandatory injunction.
Chalk v. U.S. Dist. Court Cent. Dist. of California,
840 F.2d 701, 704 (9th Cir. 1988). A prohibitory injunction prevents a party from taking action pending a
resolution on the merits, Heckler v. Lopez, 463 U.S.
1328, 1333 (1983) (stating that a prohibitory injunction
“freezes the positions of the parties until the court can
hear the case on the merits”), while a mandatory injunction “orders a responsible party to take action.”
Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996).
Since the “basic function” of a preliminary injunction is
to preserve the status quo pending resolution on the
merits, mandatory injunctions are “particularly disfavored.” Id. Indeed, mandatory injunctions will not be
issued unless failure to do so will result in “extreme or
very serious damage.” Marlyn Nutraceuticals, Inc. v.
Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir.
2009).
B.

Likelihood of Success on the Merits

Defendants argue “[t]he President and Secretary
Mattis’ decision that the complex issues presented by
the policy on military service by transgender individuals warrant additional study before changes are made to
longstanding policies passes muster under any standard.” (MTD at 25.) However, this is not what happened in this case. In July of 2017, President Trump
announced transgender people are barred from military
service, and nothing in the Presidential Memorandum
or Interim Guidance alters the fact that the decision has
already been made. Defendants, in their briefing and
at oral argument, attempt to focus on the constitutionality of the Interim Guidance and not the policy that

 35a
takes place once it expires. 2 Even the title of the current operative policy, the “Interim Guidance,” (emphasis added) attests to its temporary nature.
Defendants additionally contend military personnel
decisions should be accorded a highly deferential level
of review. However, this deferential review is most
appropriate when the military acts with measure, and
not “unthinkingly or reflexively.” Rostker v. Goldberg,
453 U.S. 57, 72 (1981). Here, the only serious study and
evaluation concerning the effect of transgender people in
the armed forces led the military leaders to resoundingly
conclude there was no justification for the ban. (Supra,
“Military Transgender Policy Before July 2017,” at 3-5.)
The Court agrees with the Doe 1 court, which noted
“the record at this stage of the case shows that the
reasons offered for categorically excluding transgender
individuals were not supported and were in fact contradicted by the only military judgment available at the
time.” 2017 WL 4873042, at *31. “[T]he Court’s analysis in this Opinion has not been based on an independent
evaluation of evidence or faulting the President for
choosing between two alternatives based on competing
evidence.” Id.
The Ninth Circuit has strongly suggested that discrimination on the basis of one’s transgender status is
equivalent to sex-based discrimination. See Schwenk
v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000)
(“both [the Gender Motivated Violence Act and Title
VII] prohibit discrimination based on gender as well as
The Doe 1 court’s analysis of the interaction between the Presidential Memorandum and the Interim Guidance is sound and adopted by the Court. 2017 WL 4873042, at *17-18. Portions of that
analysis have been reproduced in this Opinion. (See supra 9-10.)
2

 36a
sex. Indeed, for the purposes of these two acts, the
terms ‘sex’ and ‘gender’ have become interchangeable.”
Additionally, sex-based discrimination can include discrimination based on someone failing “to conform to
socially-constructed gender expectations.”) Several district courts in this circuit have plainly held discrimination on the basis of one’s transgender status is subject
to intermediate scrutiny. See Norsworthy v. Beard,
87 F. Supp. 3d 1104, 1119 (N.D. Cal. 2015); Olive v.
Harrington, No. 115CV01276BAMPC, 2016 WL 4899177,
at *5 (E.D. Cal. Sept. 14, 2016). Moreover, the courts
which have examined the constitutionality of the transgender ban have also applied intermediate scrutiny.
See Stone, 2017 WL 5589122, at *15; Doe 1, 2017 WL
4873042, at *27-29. The Court is persuaded by the
analysis contained in these opinions.
Plaintiffs are “protected by the Fifth Amendment’s
Due Process Clause[, which] contains within it the
prohibition against denying to any person the equal
protection of the laws.” U.S. v. Windsor, 133 S. Ct.
2675, 2695, 186 L. Ed. 2d 808 (2013). Consequently, the
government must proffer a justification which is “exceedingly persuasive,” “genuine,” “not hypothesized,”
not “invented post hoc in response to litigation,” and
“must not rely on overbroad generalizations.” United
States v. Virginia, 518 U.S. 515, 531 (1996). Defendants’ justifications do not pass muster. Their reliance
on cost is unavailing, as precedent shows the ease of
cost and administration not survive intermediate scrutiny even if it is significant. Frontiero v. Richardson,
411 U.S. 677, 688-91 (1973). Moreover, all the evidence
in the record suggests the ban’s cost savings to the government is miniscule. (RAND Report at 22-23.) Furthermore, Defendants’ unsupported allegation that allow-

 37a
ing transgender individuals to be in the military would
adversely affect unit cohesion is similarly unsupported
by the proffered evidence. (Compare MTD at 30-31
with RAND Report at 24.) These justifications fall
far short of exceedingly persuasive. Accordingly, the
Court finds Plaintiffs have demonstrated their Equal
Protection claim will likely succeed on the merits and
further analysis of their other claims is unnecessary at
this stage of the proceedings.
C.

Irreparable Harm

Defendants first argue, “for much the same reasons
they lack standing, Plaintiffs cannot show that they are
likely to be injured if the Court does not enter an injunction.” (MTD at 24.) Considering the Court has
already found Plaintiffs have standing, this argument is
easily dismissed. Second, Defendants contend Plaintiffs’ injuries would not be beyond remediation. (Id.)
For example, they argue separation from the military
would not constitute irreparable harm because it is
within the Court’s equitable powers to remedy the injury. (Id.) However, these arguments fail to address
the negative stigma the ban forces upon Plaintiffs.
Plaintiffs allege, and the Court agrees, the ban sends
a damaging public message that transgender people are
not fit to serve in the military. (MPI Reply at 19.) There
is nothing any court can do to remedy a governmentsent message that some citizens are not worthy of the
military uniform simply because of their gender. A few
strokes of the legal quill may easily alter the law, but
the stigma of being seen as less-than is not so easily
erased. See Obergefell v. Hodges, 135 S. Ct. 2584, 2602
(2015) (“laws excluding same-sex couples from the
marriage right impose stigma and injury of the kind

 38a
prohibited by our basic charter”); Lawrence v. Texas,
539 U.S. 558, 573 (2003) (“If protected conduct is made
criminal and the law which does so remains unexamined
for its substantive validity, its stigma might remain
even if it were not enforceable as drawn for equal protection reasons.”) Additionally, “the deprivation of constitutional rights unquestionably constitutes irreparable injury.” Hernandez v. Sessions, 872 F.3d 976, 994 (9th Cir.
2017) (internal quotations omitted) (citing Elrod v.
Burns, 427 U.S. 347, 373 (1976)). This ban singles out
transgender individuals for unequal treatment solely
because of their transgender status. Plaintiffs have appropriately demonstrated irreparable injury. See Stone,
2017 WL 5589122, at *16; Doe 1, 2017 WL 4873042, at *32.
D.

Balance of Equities and Public Interest

The Court finds Plaintiffs have shown the balance of
equities and public interest weighs in favor of granting
injunctive relief. Plaintiffs already feel the stigma
attached to the Directives. (See Tate Declaration ¶ 23;
John Doe 1 Declaration ¶¶ 23-25; John Doe 2 Declaration ¶¶ 30-33, 38-39.) Defendants again attempt to
make the preliminary injunction about the Interim
Guidance and not the policies which will supersede the
Interim Guidance. (MTD at 40.) As noted above, this
argument is misplaced. Additionally, as in Stone and
Doe 1, Defendants make a perfunctory argument regarding the import of a strong national defense. (MTD
at 40.) However:
A bare invocation of “national defense” simply cannot defeat every motion for preliminary injunction
that touches on the military. On the record before
the Court, there is absolutely no support for the
claim that the ongoing service of transgender people

 39a
would have any negative effective on the military at
all. In fact, there is considerable evidence that it is
the discharge and banning of such individuals that
would have such effects. . . . Moreover, the injunction that will be issued will in no way prevent the
government from conducting studies or gathering
advice or recommendations on transgender service.
Stone, 2017 WL 5589122, at *16 (quoting Doe 1, 2017
4873042, at *33.) The record stands much the same
here as it did in Stone and Doe 1, thus the Court has no
reason to deviate from the above analysis. In sum, considering all the Winter factors weigh in favor of granting a
preliminary injunction, the Court preliminarily enjoins
the Accession, Retention, and Sex Reassignment Surgery Directives pending the final resolution of this
lawsuit.
IV. CONCLUSION

Finding the Plaintiffs have established injury-in-fact
as it pertains to the Accession, Retention, and Sex Reassignment Surgery Directives, and finding this case
ripe for adjudication, the Court DENIES Defendants’
Motion to Dismiss. Additionally, finding the Winter
factors weigh in favor of granting a preliminary injunction, the Court GRANTS Plaintiffs’ Motion for Preliminary Injunction. Therefore, until this litigation is
resolved, the Court ORDERS:
1. Defendants, and their agents, employees, assigns, and all those acting in concert with them
are enjoined from categorically excluding individuals, including Plaintiffs Aiden Stockman,
Nicolas Talbot, Tamasyn Reeves, from military
service on the basis that they are transgender; and

 40a
2. No current service member, including Plaintiffs
Jaquice Tate, John Doe 1, John Doe 2, and Jane
Doe, may be separated, denied reenlistment,
demoted, denied promotion, denied medically
necessary treatment on a timely basis, or otherwise subjected to adverse treatment or differential terms of service on the basis that they are
transgender.
IT IS SO ORDERED.

 41a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

No. EDCV 17-01799 JGB (KKx)
AIDEN STOCKMAN, ET AL.
v.
DONALD J. TRUMP, ET AL.
Filed: Sept. 18, 2018
CIVIL MINUTES—GENERAL

Present:

The Honorable JESUS G. BERNAL, United
States District Judge

Attorney(s) Present for Plaintiff(s):
None Present
Attorney(s) Present for Defendant(s):
None Present
Proceedings:

Order DENYING Defendants’ Motion to
Dissolve the Preliminary Injunction
(Dkt. No. 82) (IN CHAMBERS)

On March 23, 2018, Defendants Donald J. Trump
(“President Trump”), in his official capacity as President of the United States; James N. Mattis, in his official capacity as Secretary of Defense; Joseph F. Dunford, Jr., in his official capacity as Chairman of the
Joint Chiefs of Staff; Richard V. Spencer, in his official

 42a
capacity as Secretary of the Navy; Ryan D. McCarthy,
in his official capacity as Acting Secretary of the Army;
Heather A. Wilson, in her official capacity as Secretary
of the Air Force; and Elaine C. Duke, in her official
capacity as Acting Secretary of Homeland Security
(collectively, “Defendants”) filed a Motion to Dissolve
the Preliminary Injunction. (“Motion,” Dkt. No. 82.)
Plaintiffs Aiden Stockman, Nicolas Talbott, Tamasyn
Reeves, Jaquice Tate, John Doe 1, John Doe 2, Jane
Doe, and Equality California (collectively, “Plaintiffs”)
filed an opposition on April 25, 2018. (“Opposition,”
Dkt. No. 98.) Defendants filed a reply on May 7, 2018.
(“Reply,” Dkt. No. 105). The Court held a hearing on
this matter on July 30, 2018. Upon consideration of
the papers filed in support of and in opposition to this
Motion, as well as the oral arguments presented by the
parties, the Court DENIES Defendants’ Motion.
I.
A.

BACKGROUND

Procedural History

On September 5, 2017, Plaintiffs filed a complaint
against Defendants, asserting four causes of action:
(1) Fifth Amendment equal protection; (2) Fifth Amendment due process; (3) Fifth Amendment right to privacy; and (4) First Amendment retaliation for free speech
and expression. (“Complaint,” Dkt. No. 1 ¶¶ 49-77.)
Plaintiffs seek declaratory relief. (Id.) Plaintiffs filed
a Motion for Preliminary Injunction on October 2, 2017.
(“MPI,” Dkt. No. 15.) The Court granted Plaintiffs’
MPI on December 22, 2017. (“December Order,” Dkt.
No. 79.)

 43a
B.

Factual History

The parties do not dispute the basic facts in this case.
In June 2016, after multiple years of data review, the
Department of Defense (“DOD”) announced it would
implement a new policy which allowed transgender people to serve openly in the United States military (“June
2016 Policy”). (See generally Dkt. No. 28, Exh. C.)
On July 26, 2017, President Trump changed course,
and tweeted:
After consultation with my Generals and military
experts, please be advised that the United States
Government will not accept or allow Transgender
individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and
overwhelming victory and cannot be burdened with
the tremendous medical costs and disruption that
transgender in the military would entail. Thank you.
(“President Trump’s Twitter Proclamation,” Dkt. No. 28,
Exh. F.)
On August 25, 2017, President Trump issued a memorandum (“2017 Presidential Memorandum”) formalizing the policy he announced via Twitter. (Dkt. No. 28,
Exh. G.) The 2017 Presidential Memorandum contained several operative prongs: (1) it indefinitely extended the prohibition preventing transgender individuals from entering the military (the “Accession Directive”); (2) it required the military to authorize the
discharge of transgender service members (the “Retention Directive”); and (3) it largely halted the use of
DOD or Department of Homeland Security (“DHS”)
resources to fund sex reassignment surgical procedures
for current military members (“Sex Reassignment Sur-

 44a
gery Directive”) (collectively, “Directives”). (Id. at 47.)
The DOD was to submit a plan implementing the 2017
Presidential Memorandum by February 2018. (Id.)
On September 14, 2017, Defendant Mattis, the current Secretary of Defense, issued an “Interim Guidance” which established the temporary DOD policy regarding transgender persons. DoD Interim Guidance
on Military Service by Transgender Individuals (September 2017), available at https://defense.gov/Portals/
1/Documents/PDFs/Military-Service-By-TransgenderIndividuals-Interim-Guidance.pdf (last visited September 13, 2018). While the Interim Guidance was in effect, no current transgender service member could be
discharged or denied reenlistment solely based on their
transgender status. Id.
1.

Military Transgender Policy before July 2017

In August 2014, the DOD removed references to
mandatory exclusion based on gender and identity disorders from its physical disability policy. (“Declaration of Eric K. Fanning,” Dkt. No. 22 ¶¶ 12-13.) Additionally, the DOD directed each branch of the armed
forces to assess whether there remained any justification to prohibit service by openly transgender individuals. (Id. at 13.)
In July 2015, then-Secretary of Defense Ashton B.
Carter created a group to begin comprehensively analyzing whether any justification remained which validated the ban on open service by transgender individuals. (“Declaration of Brad Carson,” Dkt. No. 26 ¶¶ 8-9.)
The working group created by Secretary Carter included the Armed Services, the Joint Chiefs of Staff,
the service secretaries, and other specialists from

 45a
throughout the DOD (the “Working Group”). (Id. ¶ 9.)
As part of the review process, the Working Group
analyzed evidence from a variety of sources, including
scholarly materials and consultations with medical
experts, personnel experts, readiness experts, health
insurance companies, civilian employers, and commanders of units with transgender service members.
(Id. ¶ 10.)
In addition, the Working Group commissioned the
RAND Corporation, a nonprofit research institution
that provides analysis to the military, to complete a
comprehensive study on the impact of permitting
transgender individuals to serve openly. (Id. ¶ 11.)
The 113-page study, “Assessing the Implications of
Allowing Transgender Personnel to Serve Openly” (the
“RAND Report,” Dkt. No. 26, Exh. B), examined factors such as the health care costs and readiness implications of allowing open service by transgender persons. The RAND Report also analyzed the other
18 foreign militaries which permit military service by
transgender individuals, focusing on Australia, Canada,
Israel, and the United Kingdom—the four countries
“with the most well-developed and publicly available
policies on transgender military personnel.” (RAND
Report at 23.) This comparative analysis found no
evidence that allowing open service by transgender
persons would negatively affect operational effectiveness, readiness, or unit cohesion. (Id. at 24.) Moreover, the RAND Report concluded healthcare costs for
transgender service members would “have little impact
on and represents an exceedingly small proportion of
[the DOD’s] overall health care expenditures.” (Id. at
22-23.) Specifically, the RAND Report found health
care costs would increase “by between $2.4 million and

 46a
$8.4 million annually.” (Id. at 22.) By contrast, the
overall healthcare cost of those serving in the active
component of the military is approximately $6 billion
annually, while the overall healthcare cost for the DOD
is $49.3 billion annually. (Id. at 22-23.) Furthermore, the RAND Report noted discharging transgender service members, “[a]s was the case in enforcing
the policy on homosexual conduct, [] can involve costly
administrative processes and result in the discharge of
personnel with valuable skills who are otherwise qualified.” (Id. at 77.) At the conclusion of its analysis,
the Working Group “did not identify any basis for a
blanket prohibition on open military service of transgender people. Likewise, no one suggested . . . that
a bar on military service by transgender persons was
necessary for any reason, including readiness or unit
cohesion.” (Declaration of Eric K. Fanning ¶ 27.)
Based on the results of this review process, on June
30, 2016, Secretary Carter issued a Directive-type Memorandum announcing transgender Americans may serve
openly and without fear of being discharged based solely
on that status. (“DTM 16-005,” Dkt. No. 22, Exh. C.)
Secretary Carter stated:
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.
(Id. at 135.)

 47a
Some of the highest ranking military officials in the
country concurred with this assessment. (See generally Declaration of Eric K. Fanning; “Declaration of
Michael Mullen,” Dkt. No. 21; “Declaration of Raymond E. Mabus,” Dkt. No. 23; “Declaration of Deborah
L. James,” Dkt. No. 24.) According to the directive,
transgender individuals would be permitted to enlist in
the military and serve openly beginning on July 1, 2017.
(DTM 16-005, at 137.) This date was later postponed to
January 1, 2018. (See Dkt. No. 28, Exh. E.) The
DOD also issued handbooks, regulations, and memoranda which instructed military commanders how to
implement the new policies, set forth guidance related
to medical treatment provisions, and expressly prohibited discrimination on the basis of gender identity.
(See “Transgender Service in the U.S. Military,” Dkt.
No. 22, Exh. 6.)
The former military leaders among the Working
Group, such as former Secretary of the Army Eric K.
Fanning, former Chairman of the Joint Chiefs of Staff
Admiral Michael Mullen, former Secretary of the Navy
Raymond E. Maubus, and former Secretary of the Air
Force Deborah L. James, have all explicitly drawn
parallels between allowing open service by transgender
persons and permitting open service by gay and lesbian
persons. (See Declaration of Eric K. Fanning ¶¶ 10-16;
Declaration of Michael Mullen ¶¶ 9-15; Declaration of
Raymond E. Mabus ¶¶ 19, 24; Declaration of Deborah
L. James ¶ 44.) These leaders contend that many of
the same concerns relating to open transgender service
were vocalized, and eventually allayed, in the context of
ending “Don’t Ask Don’t Tell.” (See Declaration of
Eric K. Fanning ¶¶ 10-16; Declaration of Admiral Mi-

 48a
chael Mullen ¶¶ 9-15; Declaration of Raymond E. Mabus
¶¶ 19, 24; Declaration of Deborah L. James ¶ 44.)
2. Military Transgender Policy after July 2017

On July 26, 2017, President Trump changed course,
announcing via Twitter that transgender individuals
would not be permitted to serve in the military. (President Trump’s Twitter Proclamation.) One month later,
his 2017 Presidential Memorandum promulgated the
Accession Directive, Retention Directive, and Sex
Reassignment Surgery Directive. (2017 Presidential
Memorandum.) President Trump claimed the Obama
Administration had “dismantled the [DOD and DHS’s]
established framework by permitting transgender individuals to serve openly in the military.” (Id.) Additionally, he stated the Obama Administration failed to
identify a sufficient basis to conclude ending the longstanding policy against open transgender service “would
not hinder military effectiveness and lethality, disrupt
unit cohesion, or tax military resources.” (Id.)
The military reception to President Trump’s policy
change was somewhat critical. Current Chairman of the
Joint Chiefs of Staff Joseph Dunford disagreed with the
decision to reinstate the transgender ban, stating he “believe[s] that any individual who meets the physical and
mental standards . . . should be afforded the opportunity to continue to serve.” (Dkt. No. 28, Exh. I.) He
also previously told lawmakers transgender troops have
served the military honorably, and he would continue to
abide by this sentiment for as long as he holds his position. (Id.) Additionally, it is not clear whether the
nation’s top military leaders were consulted about this
policy change prior to President Trump’s Twitter Proclamation. (See Dkt. No. 28, Exh. M.) Moreover, after

 49a
the promulgation of President Trump’s tweets, 56 retired
generals and admirals signed a declaration stating a ban
on open service by transgender persons would degrade
military readiness. (Dkt. No. 28, Exh. O.)
The Accession Directive would have extended the
policy prohibiting open accession into the military beyond January 1, 2018. The Retention and Sex Assignment Surgery Directives were to take effect on March
23, 2018. (Id.) However, a series of judicial orders,
including the Court’s December Order, preliminarily
enjoined the government from enacting these policies.
See Doe 1 v. Trump, 275 F. Supp. 3d 167 (D.D.C. 2017);
Stone v. Trump, 280 F. Supp. 3d 753 (D. Md. 2017);
Karnoski v. Trump, No. C17-1297-MJP, 2017 WL
6311305 (W.D. Wash. Dec. 11, 2017). To date, these
injunctions remain in place.
3.

The Mattis Memorandum

On February 22, 2018, Defendant Mattis promulgated a memorandum which recommended that President Trump revoke his prior 2017 Presidential Memorandum in order for the military to implement a new
policy. (“Mattis Memorandum,” Dkt. No. 83-1.) Defendant Mattis states he “created a Panel of Experts
[(“the Panel”)] comprised of senior uniformed and civilian
Defense Department and U.S. Coast Guard leaders and
directed them to consider [the issue of transgender military service] and develop policy proposals based on data,
as well as their professional military judgment . . . .”
(Id. at 1.) The Panel “met with . . . transgender
Service members” and “reviewed available information
on gender dysphoria . . . and the effects of gender
dysphoria on military effectiveness, unit cohesion, and
resources.” (Id. at 1-2.) Based on the work of the

 50a
Panel, the DOD concluded 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.” (Id. at 2.)
Additionally, exempting those individuals could “undermine readiness, disrupt unit cohesion, and impose
an unreasonable burden on the military that is not conducive to military effectiveness and lethality.” (Id.)
The Mattis Memorandum also criticized the RAND
Report, noting it “contained significant shortcomings,”
“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 experiences of foreign
militaries . . . .” (Id.) Defendant Mattis concluded
the DOD 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
received medically necessary treatment for gender
dysphoria.

 51a
Transgender persons who require or have undergone 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.
(Id. at 2-3.) Defendant Mattis also sent President
Trump a report which detailed why, in the opinion of
the DOD, this new policy would be necessary to further
the interests of the military. (“DOD Report,” Dkt.
No. 83-2.) President Trump issued a new memorandum on March 23, 2018, which revoked the 2017 Presidential Memorandum and allowed the DOD to implement its preferred policy. (“2018 Presidential Memorandum,” Dkt. No. 83-3.) Given these developments,
Defendants ask the Court to dissolve the preliminary
injunction issued in the Court’s December Order.
(Motion at 2.)
4.

Karnoski v. Trump

On April 13, 2018, the Honorable Marsha J. Pechman
issued an order which partially granted plaintiffs’ motion
for summary judgment in a similar case. Karnoski v.
Trump, No. C17-1297-MJP, 2018 WL 1784464 (W.D.
Wash. Apr. 13, 2018). In Karnoski, the defendants
made several of the same arguments advanced here,
such as mootness, standing, and level of deference to
the DOD Report. Id. Judge Pechman held that discrimination against transgender persons should be
subject to strict scrutiny. Id. at *10-11. However,
the court declined to determine the level of deference
due to the DOD Report. Id. at 11-13. Additionally,

 52a
the court held that the preliminary injunction already
issued should remain in effect, and struck the defendants’ motion to dissolve the preliminary injunction.
Id. at *14. The defendants appealed this decision, and
that appeal is currently pending before the Ninth Circuit. The Ninth Circuit recently ruled that the preliminary injunction should remain in place during the
pendency of the appeal in order to preserve the status
quo. (Karnoski, et al. v. Trump, et al., No. 18-35347,
Dkt. No. 90.) Thus, under the current legal landscape, the Ninth Circuit has begun the process of reviewing the Karnoski decision, including the order
upholding the preliminary injunction and striking defendants’ motion to dissolve, and has maintained the
preliminary injunction while Karnoski is under review.
II.

LEGAL STANDARD

The basic function of a preliminary injunction is to
preserve the relative positions of the parties until a
trial on the merits. Univ. of Texas v. Camenisch,
451 U.S. 390, 392 (1981). To obtain a preliminary
injunction, a party must either show (1) a combination
of probable success and the possibility of irreparable
harm, or (2) the balance of hardship tips in its favor and
the party has raised serious questions. Arcamuzi v.
Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir.
1987); see also Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008) (holding that, to obtain a preliminary injunction, a movant must show: (1) likelihood
of success on the merits; (2) irreparable harm; (3) balance of equities tips in his favor; and (4) an injunction is
in the public interest). A district court has discretion
to dissolve or to modify a preliminary injunction if
factual or legal circumstances have changed since the

 53a
issuance of the injunction. See Mariscal-Sandoval v.
Ashcroft, 370 F.3d 851, 859 (9th Cir. 2004). “A party
seeking modification or dissolution of an injunction
bears the burden of establishing that a significant
change in facts or law warrants revision or dissolution
of the injunction.” Sharp v. Weston, 233 F.3d 1166,
1170 (9th Cir. 2000).
III.
A.

DISCUSSION

Mootness

Defendants contend Plaintiffs’ challenge is now
moot because any dispute over the new policy “presents a substantially different controversy” than Plaintiffs’ challenge to the 2017 Presidential Memorandum.
(Motion at 8.) Defendants state the appropriate question is whether the “challenged conduct continues” or
whether the policy “has been sufficiently altered as to
present a substantially different controversy from the
one [previously] decided.”
(Id. (quoting Ne. Fla.
Chapter of Associated Gen. Contractors of Am. v. City
of Jacksonville, Fla., 508 U.S. 656, 662 n.3 (1993)).)
Defendants argue Plaintiffs’ original challenge was
premised on the assumption that President Trump had
ordered a categorical ban excluding transgender individuals for reasons not supported by prevalent military
judgment. (Motion at 8.) The new policy, Defendants
argue, contains several exceptions which would allow
“some” transgender individuals to serve and is the product of “independent military judgment following extensive study.” (Id.) Defendants maintain this new
policy turns “on the basis of a medical condition and its
associated treatment,” and does not implement the 2017
Presidential Memorandum. (Reply at 2.) These arguments fail.

 54a
The enactment of a new policy does not moot a
challenge to a previous one where, as here, the new one
differs little from the first. In City of Jacksonville,
the city enacted an ordinance which required it to set
aside a certain percentage of its money each year for
“Minority Business Enterprises” (“MBE’s”). 508 U.S.
at 658. The plaintiff challenged this policy, and a district court entered a preliminary injunction against the
city. Id. at 659. The city later repealed its MBE ordinance and replaced it with a new ordinance which had
three principal differences: (1) it now applied just to
women and black people, not to women and other minority groups; (2) the percentage of money set aside for
these businesses became a percentage range rather than
a set percentage figure; and (3) there were now five
alternative methods for achieving the city’s participation goals. Id. at 661. In its discussion on mootness,
the Supreme Court noted:
There is no mere risk that Jacksonville will repeat
its allegedly wrongful conduct; it has already done
so. Nor does it matter that the new ordinance differs in certain respects from the old one. City of
Mesquite [,455 U.S. 283 (1982),] does not stand for
the proposition that it is only the possibility that the
selfsame statute will be enacted that prevents a case
from being moot; if that were the rule, a defendant
could moot a case by repealing the challenged statute and replacing it with one that differs only in
some insignificant respect. The gravamen of petitioner’s complaint is that its members are disadvantaged in their efforts to obtain city contracts.
The new ordinance may disadvantage them to a
lesser degree than the old one, but insofar as it accords preferential treatment to black- and female-

 55a
owned contractors—and, in particular, insofar as its
“Sheltered Market Plan” is a “set aside” by another
name—it disadvantages them in the same fundamental way.
Id. at 669 (emphasis added). Here, President Trump
stated the essence of the first policy in his Twitter
proclamation: transgender people will no longer be
able to serve in the U.S. military. (President Trump’s
Twitter Proclamation.) In keeping with that proclamation, the first policy banned the accession and retention of transgender individuals. (2017 Presidential
Memorandum). The policies described in the 2017
Presidential Memorandum and the 2018 Presidential
Memorandum are fundamentally the same. Indeed,
President Trump specifically announced this review
process along with the first policy. (2017 Presidential
Memorandum). This new policy specifically bans transgender individuals from serving in the military in a
manner consistent with their gender identity. (Mattis
Memorandum.) It excludes anyone who requires or
has undergone gender transition, and requires proof
that a person has been stable in their birth sex for the
last thirty-six months. (Id.) In sum, it disadvantages transgender service members “in the same fundamental way.” City of Johnsonville, 508 U.S. at 669.
Defendants contend this policy has exceptions which
will allow some transgender individuals to serve in the
military (Motion at 5-6), yet these very exceptions
expose the policy as being substantially the same as the
first. To start, all transgender individuals “who require or have undergone gender transition are disqualified from military service.” (Mattis Memorandum at
2-3.) Yet, transgender individuals “without a history

 56a
or diagnosis of gender dysphoria, who are otherwise
qualified for service, may serve, like all other Service
members, in their biological sex.” (Mattis Memorandum at 2-3.) Additionally, people with gender dysphoria who do not require or have not undergone gender transition are exempted from the policy as long as
they are “willing and able to adhere to all standards
associated with their biological sex.” (Id.) Taken together, it is clear that a diagnosis of gender dysphoria
is neither necessary nor sufficient to be excluded from
the military under this new policy. What is both necessary and sufficient to be excluded, irrespective of a
diagnosis of gender dysphoria, is a person serving
consistent with their transgender identity. In short,
the policy aims to eliminate a person’s transness, and
nothing else. See Karnoski, 2018 WL 1784464, at *12
(“Requiring transgender people to serve in their biological sex 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 characteristics that defines them as transgender in the first
place.”) (internal quotation marks omitted); see also
Christian Legal Soc’y v. Martinez, 561 U.S. 661, 689
(2010) (rejecting purported distinction between targeting same-sex intimate conduct and discriminating
against gay people).
For the purpose of mootness, the controversy presented by the new policy is substantively the same as
the controversy presented by the old policy. Transgender individuals will be disadvantaged “in the same
fundamental way.” City of Jacksonville, 508 U.S. at 669.
Defendants have appropriately informed the Court that

 57a
it must decide whether the challenged conduct continues. (Motion at 8.) It clearly does.
B.
1.

Constitutional Review
Military Deference and Rational Basis Review

Defendants argue this new policy triggers rational
basis review because it “draws lines on the basis of a
medical condition (gender dysphoria) and an associated
treatment (gender transition), not on transgender status.” (Motion at 10.) This characterization, however,
does not match reality. As noted above, a diagnosis of
gender dysphoria is neither necessary nor sufficient for
a person to be excluded from the military under this
new policy. Yet the discussion does not end here, as
Defendants also argue they are entitled to deference
becasue the new policy is a military decision. (Id.
(citing, e.g., Rostker v. Goldberg, 453 U.S. 57, 67 (1981)
(“Congress is [not] free to disregard the Constitution
when it acts in the area of military affairs . . . but
the tests and limitations to be applied may differ because
of the military context”); Goldman v. Weinberger,
475 U.S. 503, 507 (1986) (“Our 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.”)).)
This deferential review is most appropriate when the
military acts with measure, and not “unthinkingly or
ref lexively.” Rostker, 453 U.S. at 72.
In the Court’s December Order, it noted “the only
serious study and evaluation concerning the effect of
transgender people in the armed forces led the military
leaders to resoundingly conclude there was no justification for the ban.” (December Order at 18.) Fol-

 58a
lowing the promulgation of this Order, Defendants conducted their own study and have submitted their own
report. (DOD Report; Mattis Memorandum.) The
DOD has concluded that “accommodating gender transition would create unacceptable risks to military readiness; undermine good order, discipline, and unit cohesion; and create disproportionate costs.” (Motion at
15 (citing Mattis Memorandum at 2).) However, there
are several reasons why the DOD Report and the new
policy are not entitled to military deference.
First, the new policy and DOD Report represent
after-the-fact justifications for the military ban on transgender service members. The relevant timeline is as
follows: On July 26, 2017, President Trump announced that “After consultation with my Generals
and military experts, please be advised that the United
States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S.
Military.” (President Trump’s Twitter Proclamation
(emphasis added).) With this statement, President
Trump made two things clear: (1) he had already consulted the relevant military experts who presumably
provided information on how to proceed; and (2) the
decision had been made to ban transgender individuals
from serving in the military. The Interim Guidance
and 2017 Presidential Memorandum formalized the
policy announced in the initial proclamation. Following a series of defeats in the courts, including specific
rebukes for not having an adequate military record to
justify the ban, the DOD now, in 2018, has conducted a
study which attempts to rationalize a decision made on
July 26, 2017—a decision which, purportedly, already
followed such a consultation with military experts.

 59a
As noted above, the new policy is essentially the
same as the first policy, which distinguishes this case
from Trump v. Hawaii, 138 S. Ct. 2392 (June 26, 2018).
There, the Supreme Court upheld President Trump’s
authority to restrict entry of nationals from seven
countries “whose systems for managing and sharing
information about their nationals the President deemed
inadequate.” Id. at 2404. The immigration policy at
issue underwent two substantive revisions before being
squarely presented to the Supreme Court. Id. at
2403-04. In that case, there were serious allegations
of religious animus levied at President Trump due to
pronouncements, on multiple occasions, that he sought
to implement a “Muslim ban.” Id. at 2435-38 (Sotomayor, J. dissenting) (noting that President Trump, as
a candidate, was “calling for a total and complete shutdown of Muslims entering the United States,” which
progressed to a characterization of his policy as “a suspension of immigration from countries where there’s a
proven history of terrorism”) (internal quotation marks
omitted) . Notably, the final immigration policy before
the Supreme Court did not concern a total Muslim ban
as originally called for by then-Candidate Trump.
Instead, the policy before the Supreme Court concerned seven specific countries, only five of which contained Muslim-majority populations.
Id. at 2421.
This, then, would cover only 8% of the world’s Muslim
population. Id. Additionally, three Muslim-majority
countries were specifically removed from an earlier
iteration of this immigration policy. Id. at 2422.
This case is distinguishable from Hawaii. Here,
Trump specifically announced that he was banning
transgender people from the military. This second
iteration of the policy continues to do exactly that.

 60a
The evolving limiting principles present in the Hawaii
immigration policy revisions are absent here. Additionally, then-Candidate Trump specifically called for a
Muslim ban at some point in the future. Here, President Trump announced the United States Government
will not accept or allow transgender individuals, a decision which had followed military consultation. This
language directly implies the necessary study has already concluded. For these reasons, Hawaii is inapposite to the present discussion.
Perhaps conceding the DOD Report represents an
after-the-fact justification for the original transgender
ban, Defendants argue Schlesinger v. Ballard, 419 U.S.
498 (1975), offers an example of when the Supreme Court
accepted such a justification. (Motion at 11.) There,
the Court upheld a statutory scheme under which male
naval officers who failed to be promoted were subject to
a shorter mandatory discharge schedule than female
officers under the same circumstances. Schlesinger,
419 U.S. at 499-505. In discussing the rationale behind this difference in treatment, the Supreme Court
noted that “Congress may thus quite rationally have
believed that women line officers had less opportunity
for promotion than did their male counterparts . . . .”
Id. at 577. Defendants note that the dissent criticized
the majority for “conjur[ing] up a legislative purpose.”
Id. at 500 (Brennan, J. dissenting). Plaintiffs contend
the Supreme Court looked to whether a sufficient justification for the law existed at the time of its enactment.
(Opposition at 12.) Upon review of this case, it is
unclear whether the language Defendants quote represents an acceptance of an after-the-fact justification.
However, language in other Supreme Court cases is
not so ambiguous. See United States v. Virginia,

 61a
518 U.S. 515, 531 (1996) (noting that the government
must proffer a justification which is “exceedingly persuasive,” “genuine,” “not hypothesized,” not “invented
post hoc in response to litigation,” and “must not rely
on overbroad generalizations”); Sessions v. MoralesSantana, 137 S. Ct. 1678, 1696 (2017) (“It will not do to
hypothesize or invent governmental purposes for gender classifications post hoc in response to litigation.”)
(internal quotations omitted).
For these reasons, the Court finds Defendants are
not entitled to rational-basis review pursuant to the
doctrine of military deference. Although Karnoski explicitly found that transgender discrimination should
be subject to strict scrutiny, this Court has already found
that intermediate scrutiny is appropriate. (December
Order at 19 (citing Schwenk v. Hartford, 204 F.3d 1187,
1201-02 (9th Cir. 2000) (“both [the Gender Motivated
Violence Act and Title VII] prohibit discrimination
based on gender as well as sex. Indeed, for the purposes of these two acts, the terms ‘sex’ and ‘gender’ have
become interchangeable.” Additionally, sex-based discrimination can include discrimination based on someone failing “to conform to socially-constructed gender
expectations.”); Norsworthy v. Beard, 87 F. Supp. 3d
1104, 1119 (N.D. Cal. 2015); Olive v. Harrington,
No. 115CV01276BAMPC, 2016 WL 4899177, at *5
(E.D. Cal. Sept. 14, 2016)).)
2.

Intermediate Scrutiny

“A party seeking modification or dissolution of an
injunction bears the burden of establishing that a significant change in facts or law warrants revision or dissolution of the injunction.” Sharp v. Weston, 233 F.3d
1166, 1170 (9th Cir. 2000). Under intermediate scru-

 62a
tiny, Defendants must proffer a justification for this
new policy which is substantially related to an exceedingly persuasive justification. Virginia, 518 U.S. at
533. Defendants state the transgender ban advances
three separate interests: (1) promoting military readiness based on deployability; (2) promoting unit cohesion based on concerns about maintaining sex-based
standards; and (3) lowering costs. (Motion at 14-23.)
The Court previously considered and rejected Defendants’ third argument. (December Order at 19 (“[Defendants’] reliance on cost is unavailing, as precedent
shows the ease of cost and administration cannot not
survive intermediate scrutiny even if it is significant.
Frontiero v. Richardson, 411 U.S. 677, 688-91 (1973)”).)
Accordingly, the Court will focus on Defendants’ first
two arguments.
i.

Military Readiness

Notably, Defendants continue to assert the operative question is whether a person suffers from gender
dysphoria. (Motion at 15.) However, as discussed
above, this focus misses the mark, as a diagnosis of
gender dysphoria is neither necessary nor sufficient to
be excluded from the military under this policy. Consequently, the Court is not persuaded by Defendants’
fears of increased mental instability for those who
suffer from gender dysphoria. (Id. at 14-16.) People
with gender dysphoria are explicitly exempted from
this new policy as long as they do not present as transgender. (Mattis Memorandum at 2-3.) Likewise,
Defendants’ concern that those who undergo gender
transition surgery could negatively affect deployability
is not substantially related to the actual effect of this
policy. Defendants state the majority of current trans-

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gender service member treatment plans include a request for gender transition surgery. (Motion at 22-23.)
However, the Mattis Memorandum bans all individuals
who present as transgender from the military, not only
those who have undergone gender transition surgery.
(Mattis Memorandum at 2-3.) The decision to ban the
accession of people who have undergone gender transition surgery is thus one part of the whole policy, and
the purported rationalization for this decision, though
contested by Plaintiffs, cannot be used to justify the
whole policy even if assumed to be valid. In sum, the
concerns voiced by Defendants are not substantially
related to the effect of the policy, nor are these concerns exceedingly persuasive.
ii.

Unit Cohesion

Defendants first argue that any transgender service
member accommodation policy which “does not require
full sex-reassignment surgery could ‘erode reasonable
expectations of privacy that are important in maintaining unit cohesion, as well as good order and discipline.’ ” (Motion at 18 (quoting DOD Report at 37).)
Defendants premise their argument by stating the only
feasible way for transgender service members to serve
in the military would involve requiring them to submit
to sex reassignment surgery. (Id. at 18-19.) Defendants then state that allowing service members “who
have developed . . . the anatomy of their identified
gender to use the facilities of either their identified
gender or biological sex would invade the expectations
of privacy of the non-transgender service members
who share those quarters.” (Id. at 19 (citing DOD Report at 37) (internal quotations omitted).) Thus, Defendants argue the military faces two choices: create

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separate facilities for transgender service members,
which is deemed “logistically impracticable,” or be presented with “irreconcilable privacy demands.” (Id.
(citing DOD Report at 37).) Additionally, Defendants
cite to a specific instance where a commanding officer
faced dueling equal opportunity complaints—one from
a transgender woman with male sex organs who wanted to use the female shower facilities, and one from the
other female service members in the unit. (Id.)
In response, Plaintiffs cite to a litany of non-binding
cases to support their contention that Courts across the
country have held that allowing transgender individuals
to live in accord with their identity does not threaten the
privacy or safety interests of others. (Opposition at 7
(citing, e.g., Whitaker By Whitaker v. Kenosha Unified
Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1046-47
(7th Cir. 2017); M.A.B. v. Bd. of Educ. of Talbot Cty.,
286 F. Supp. 3d 704, 724-26 (D. Md. 2018)).) Defendants note that none of Plaintiffs’ cited cases concern
the military context. (Reply at 10.)
The military has often used concerns regarding unit
cohesion to contest permitting open service by individuals in minority groups. In Log Cabin Republicans v.
U.S., the court ruled that that the military’s “don’t ask,
don’t tell” policy (“DADT”), which banned open service
by gay persons, violated the First Amendment of the
Constitution. 716 F. Supp. 2d 884 (C.D. Cal. 2010).1
The court made this determination despite the government’s argument that DADT “is necessary to protect
A subsequent opinion vacated this decision on the grounds that
the original case had become moot due to Congress voluntarily
enacting the Don’t Ask, Don’t Tell Repeal Act of 2010. Log Cabin
Republicans v. U.S., 658 F.3d 1162 (9th Cir. 2011).
1

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unit cohesion and heterosexual service members’ privacy.” Id. at 920. In finding DADT “is not necessary
to protect the privacy of service [] members,” id. at 923,
the court relied upon testimony given by various officers
in the military who attested there was no nexus between
DADT and a loss of unit cohesion. Id. at 921-22; see also
Witt v. U.S. Dep’t of Air Force, 739 F. Supp. 2d 1308,
1315 (W.D. Wash. 2010) (finding that open gay service
would not affect unit cohesion, and noting that the
“men and women of the United States military have
over the years demonstrated the ability to accept diverse peoples into their ranks and to treat them with
the respect necessary to accomplish the mission, whatever that mission might be. That ability has persistently allowed the armed forces of the United States to
be the most professional, dedicated and effective military in the world.”). Notably, these concerns were also
present in “past efforts to stop the integration of blacks
and women into the armed forces; efforts bolstered
by arguments that history and common sense proved
wrong.” Witt v. U.S. Dep’t of Air Force, 444 F. Supp.
2d 1138, 1143 (W.D. Wash. 2006), aff ’d in part, rev’d in
part sub nom. Witt v. Dep’t of Air Force, 527 F.3d
806 (9th Cir. 2008); see also Dahl v. Sec’y U.S. Navy,
830 F. Supp. 1319 (E.D. Cal. 1993) (citing a DOD report
as stating “Most of the issues raised regarding the
effect that admitting declared homosexuals would have
on unit cohesion . . . are also reminiscent of the
arguments advanced against the 1948 order to desegregate military establishments, and later the arguments
that sought to minimize the role of women Armed
Forces. Those who resist changing the traditional policies support their position with statements of the

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negative effects on discipline, morale, and other abstract values of military life.”).
In the history of military service in this country,
“the loss of unit cohesion” has been consistently weaponized against open service by a new minority group.
Yet, at every turn, this assertion has been overcome by
the military’s steadfast ability to integrate these individuals into effective members of our armed forces.
As with blacks, women, and gays, so now with transgender persons. The military has repeatedly proven
its capacity to adapt and grow stronger specifically by
the inclusion of these individuals. Therefore, the government cannot use “the loss of unit cohesion” as an
excuse to prevent an otherwise qualified class of discrete and insular minorities from joining the armed
forces. The Court finds this justification of the transgender ban is not exceedingly persuasive and cannot
survive intermediate scrutiny.
IV.

CONCLUSION

For the foregoing reasons, the Court DENIES Defendants’ Motion to Dissolve the Preliminary Injunction.
IT IS SO ORDERED.

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APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

CASE NO. 5:17-CV-01799 (JGB )
AIDEN STOCKMAN; NICOLAS TALBOTT;
TAMASYN REEVES; JAQUICE TATE; JOHN DOES 1-2;
JANE DOE; AND EQUALITY CALIFORNIA, PLAINTIFFS
v.
DONALD J. TRUMP, ET AL., DEFENDANTS
STATE OF CALIFORNIA, PLAINTIFF-INTERVENOR
v.
DONALD J. TRUMP, ET AL., DEFENDANTS
Filed: Nov. 16, 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 September 18, 2018,
ECF No. 124, denying Defendants’ motion to dissolve
the preliminary injunction.

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Dated: Nov. 16, 2018
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
Civil Division
BRETT A. SHUMATE
Deputy Assistant Attorney General
BRINTON LUCAS
Counsel to the Assistant Attorney General
JOHN R. GRIFFITHS
Branch Director
ANTHONY J. COPPOLINO
Deputy Director
/s/

ROBERT M. NORWAY
ROBERT M. NORWAY
ANDREW E. CARMICHAEL
ROBERT M. NORWAY
MATTHEW SKURNIK
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, D.C. 20530
Telephone: (202) 353-0889
Email: robert.m.norway@usdoj.gov
Counsel for Defendants