ACCO,(KKx),CLOSED,DISCOVERY,MANADR,PROTORD,STAYED
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Eastern Division − Riverside)
CIVIL DOCKET FOR CASE #: 5:17−cv−01799−JGB−KK

Aiden Stockman et al v. Donald J. Trump et al Assigned to: Judge Jesus G. Bernal Referred to: Magistrate Judge Kenly Kiya Kato Case in other court: 9th CCA, 18−56539 Cause: 28:1343 Violation of Civil Rights
Plaintiff
Aiden Stockman

Date Filed: 09/05/2017 Date Terminated: 03/03/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Amy Christine Quartarolo Latham and Watkins LLP 355 South Grand Avenue Suite 100 Los Angeles, CA 90071−1560 213−485−1234 Fax: 213−891−8763 Email: amy.quartarolo@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy E Whelan National Center for Lesbian Rights 870 Market Street Suite 360 San Francisco, CA 94102 415−392−6257 Fax: 415−392−8442 Email: awhelan@nclrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannon Minter National Center for Lesbian Rights 870 Market Street Suite 360 San Francisco, CA 94102 415−392−6257 Fax: 415−392−8442 Email: sminter@nclrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam S Sieff Latham and Watkins LLP 355 South Grand Avenue Suite 100 Los Angeles, CA 90071−1560 213−485−1234 Fax: 213−891−8763 Email: adam.sieff@lw.com TERMINATED: 07/11/2019 ATTORNEY TO BE NOTICED

Harrison J White Latham and Watkins LLP 355 South Grand Avenue Suite 100 Los Angeles, CA 90017−1560 213−485−1234 Fax: 213−891−8763 Email: harrison.white@lw.com ATTORNEY TO BE NOTICED

Jennifer Levi GLBTQ Legal Advocates and Defenders

Plaintiff Nicolas Talbott

18 Tremont Street Suite 950 Boston, MA 02108 617−426−1350 Fax: 617−426−3594 Email: jlevi@glad.org PRO HAC VICE ATTORNEY TO BE NOTICED
Marvin S Putnam Latham and Watkins LLP 355 South Grand Avenue Suite 100 Los Angeles, CA 90071−1560 213−485−1234 Fax: 213−891−8763 Email: marvin.putnam@lw.com ATTORNEY TO BE NOTICED
Mary L Bonauto GLBTQ Legal Advocates and Defenders 18 Tremont Street Suite 950 Boston, MA 02108 617−426−1350 Fax: 617−426−3594 Email: mbonauto@glad.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amy Christine Quartarolo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy E Whelan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Minter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam S Sieff (See above for address) TERMINATED: 07/11/2019 ATTORNEY TO BE NOTICED
Harrison J White (See above for address) ATTORNEY TO BE NOTICED
Jennifer Levi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marvin S Putnam (See above for address) ATTORNEY TO BE NOTICED
Mary L Bonauto (See above for address) PRO HAC VICE

Plaintiff Tamasyn Reeves
Plaintiff Jaquice Tate

ATTORNEY TO BE NOTICED
represented by Amy Christine Quartarolo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy E Whelan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Minter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam S Sieff (See above for address) TERMINATED: 07/11/2019 ATTORNEY TO BE NOTICED
Harrison J White (See above for address) ATTORNEY TO BE NOTICED
Jennifer Levi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marvin S Putnam (See above for address) ATTORNEY TO BE NOTICED
Mary L Bonauto (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amy Christine Quartarolo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy E Whelan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Minter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam S Sieff (See above for address) TERMINATED: 07/11/2019 ATTORNEY TO BE NOTICED
Harrison J White (See above for address)

Plaintiff John Does 1−2 TERMINATED: 10/11/2019
Plaintiff Jane Doe TERMINATED: 10/11/2019

ATTORNEY TO BE NOTICED
Jennifer Levi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marvin S Putnam (See above for address) ATTORNEY TO BE NOTICED
Mary L Bonauto (See above for address) TERMINATED: 07/11/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amy Christine Quartarolo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy E Whelan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Minter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam S Sieff (See above for address) TERMINATED: 07/11/2019 ATTORNEY TO BE NOTICED
Harrison J White (See above for address) ATTORNEY TO BE NOTICED
Jennifer Levi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marvin S Putnam (See above for address) ATTORNEY TO BE NOTICED
Mary L Bonauto (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amy Christine Quartarolo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy E Whelan (See above for address)

Plaintiff Equality California

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Minter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam S Sieff (See above for address) TERMINATED: 07/11/2019 ATTORNEY TO BE NOTICED
Harrison J White (See above for address) ATTORNEY TO BE NOTICED
Jennifer Levi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marvin S Putnam (See above for address) ATTORNEY TO BE NOTICED
Mary L Bonauto (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amy Christine Quartarolo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy E Whelan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Minter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam S Sieff (See above for address) TERMINATED: 07/11/2019 ATTORNEY TO BE NOTICED
Harrison J White (See above for address) ATTORNEY TO BE NOTICED
Jennifer Levi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marvin S Putnam (See above for address) ATTORNEY TO BE NOTICED

V. Movant Commonwealth of Massachusetts
V. Intervenor Plaintiff State Of California

Mary L Bonauto (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Genevieve C Nadeau Massachusetts Attorney General's Office Civil Rights Division One Ashburton Place 18th Floor Boston, MA 02108 617−963−2121 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Chad A Stegeman CAAG − Office of Attorney General California Department of Justice 455 Golden Gate Avenue Suite 1100 San Francisco, CA 94102 415−510−3624 Fax: 415−703−5843 Email: chad.stegeman@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon L O'Grady CAAG − Office of Attorney General 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004 415−510−3834 Fax: 415−703−1234 Email: sharon.ogrady@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amie L Medley CAAG − Office of Attorney General California Department of Justice 300 South Spring Street Suite 1702 Los Angeles, CA 90013 213−269−6226 Fax: 213−897−5775 Email: amie.medley@doj.ca.gov TERMINATED: 07/20/2020
Enrique Antonio Monagas CAAG − Office of Attorney General 300 South Spring Street Suite 1702 Los Angeles, CA 90013 213−269−6250 Fax: 213−897−5775 Email: enrique.monagas@doj.ca.gov TERMINATED: 11/29/2018
Lara Haddad

V. Defendant Donald J. Trump in his official capacity as President of the United States TERMINATED: 07/26/2019
Defendant James N. Mattis in his official capacity as Secretary of Defense TERMINATED: 10/11/2019

CAAG − Office of the Attorney General California Department of Justice 300 South Spring Street Suite 1702 Los Angeles, CA 90013 213−269−6250 Fax: 213−897−5775 Email: lara.haddad@doj.ca.gov ATTORNEY TO BE NOTICED
represented by Andrew E Carmichael US Department of Justice Civil Division − Federal Programs Branch 950 Pennsylvania Avenue NW Room No 732 Washington, DC 90530 202−514−4336 Email: andrew.carmichael@usdoj.gov ATTORNEY TO BE NOTICED
Matthew Skurnik US Department of Justice Civil Division − Federal Programs Branch 1100 L Street, NW Washington, DC 20005 202−616−8188 Fax: 202−616−8470 Email: matthew.skurnik@usdoj.gov ATTORNEY TO BE NOTICED
Robert Mark Norway DOJ−Enrd Environmental and Natural Resources Division Ben Franklin Station P.O. Box 7611 Washington, DC 20044 202−307−1145 Fax: 202−305−0275 Email: robert.m.norway@usdoj.gov TERMINATED: 04/14/2020
Ryan Bradley Parker US Department of Justice Civil Division − Federal Programs Branch 950 Pannsylvania Avenue NW Room No 7326 Washington, DC 20530 202−514−4336 Fax: 202−616−8202 Email: ryan.parker@usdoj.gov TERMINATED: 06/07/2018
represented by Andrew E Carmichael (See above for address) ATTORNEY TO BE NOTICED
Matthew Skurnik (See above for address) ATTORNEY TO BE NOTICED

Defendant Joseph F. Dunford, Jr. in his official capacity as Chariman of the Joint Chiefs of Staff TERMINATED: 10/11/2019
Defendant Richard V. Spencer in his official capacity as Secretary of the Navy
Defendant Ryan D. McCarthy in his official capacity as Secretary of the Army
Defendant

Robert Mark Norway (See above for address) TERMINATED: 04/14/2020
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018
represented by Andrew E Carmichael (See above for address) ATTORNEY TO BE NOTICED
Matthew Skurnik (See above for address) ATTORNEY TO BE NOTICED
Robert Mark Norway (See above for address) TERMINATED: 04/14/2020
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018
represented by Andrew E Carmichael (See above for address) ATTORNEY TO BE NOTICED
Matthew Skurnik (See above for address) ATTORNEY TO BE NOTICED
Robert Mark Norway (See above for address) TERMINATED: 04/14/2020
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018
represented by Andrew E Carmichael (See above for address) ATTORNEY TO BE NOTICED
Matthew Skurnik (See above for address) ATTORNEY TO BE NOTICED
Robert Mark Norway (See above for address) TERMINATED: 04/14/2020
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018
represented by

Heather A. Wilson in her official capacity as Secretary of the Air Force TERMINATED: 10/11/2019
Defendant Elaine C. Duke in her official capacity as Acting Secretary of Homeland Security TERMINATED: 10/11/2019
Defendant Mark T. Esper in his official capacity as Secretary of Defense
Defendant Mark A. Milley in his official capacity as Chairman of the Joint Chiefs of Staff
Defendant Matthew P. Donovan in his official capacity as Acting Secretary of the Air Force
Defendant

Andrew E Carmichael (See above for address) ATTORNEY TO BE NOTICED
Matthew Skurnik (See above for address) ATTORNEY TO BE NOTICED
Robert Mark Norway (See above for address) TERMINATED: 04/14/2020
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018
represented by Andrew E Carmichael (See above for address) ATTORNEY TO BE NOTICED
Matthew Skurnik (See above for address) ATTORNEY TO BE NOTICED
Robert Mark Norway (See above for address) TERMINATED: 04/14/2020
Ryan Bradley Parker (See above for address) TERMINATED: 06/07/2018
represented by Andrew E Carmichael (See above for address) ATTORNEY TO BE NOTICED
Robert Mark Norway (See above for address) TERMINATED: 04/14/2020
represented by Andrew E Carmichael (See above for address) ATTORNEY TO BE NOTICED
Robert Mark Norway (See above for address) TERMINATED: 04/14/2020
represented by Andrew E Carmichael (See above for address) ATTORNEY TO BE NOTICED
Robert Mark Norway (See above for address) TERMINATED: 04/14/2020
represented by

Kevin McAleenan in his official capacity as Acting Secretary of Homeland Security
Amicus Trevor Project
Amicus Transgender Veterans Assoc., et al.
Amicus American Academy of Family Physicians

Andrew E Carmichael (See above for address) ATTORNEY TO BE NOTICED
Robert Mark Norway (See above for address) TERMINATED: 04/14/2020
represented by Douglas Martin Champion Gibson Dunn and Crutcher LLP 333 South Grand Avenue 49th Floor Los Angeles, CA 90071 213−229−7128 Email: dchampion@gibsondunn.com ATTORNEY TO BE NOTICED
represented by Susan Baker Manning Morgan Lewis and Bockius LLP 1111 Pennsylvania Avenue NW Washington, DC 20004 202−739−3000 Fax: 202−739−3001 Email: susan.manning@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Anthony Polito Morgan Lewis and Bockius LLP One Market Spear Street Tower San Francisco, CA 94105 415−442−1000 Fax: 415−442−1001 Email: john.polito@morganlewis.com ATTORNEY TO BE NOTICED
represented by Benjamin J Brysacz Jenner and Block LLP 633 West Fifth Street Suite 3600 Los Angeles, CA 90071 213−239−5100 Fax: 213−239−5199 Email: bbrysacz@jenner.com TERMINATED: 08/07/2018 ATTORNEY TO BE NOTICED
Devi M Rao Jenner and Block LLP 1099 New York Avenue NW Suite 900 Washington, DC 20001 202−637−6390 Fax: 202−639−6066 Email: drao@jenner.com TERMINATED: 06/15/2020 PRO HAC VICE
Scott B Wilkens Jenner and Block LLP 1099 New York Avenue NW Suite 900 Washington, DC 20001 202−639−6072

Amicus American Academy of Nursing
Amicus American College of Physicians
Amicus American Medical Women's Association
Amicus American Nurses Association

Fax: 202−639−6066 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Benjamin J Brysacz (See above for address) TERMINATED: 08/07/2018 ATTORNEY TO BE NOTICED
Devi M Rao (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE
Scott B Wilkens (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Benjamin J Brysacz (See above for address) TERMINATED: 08/07/2018 ATTORNEY TO BE NOTICED
Devi M Rao (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE
Scott B Wilkens (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Benjamin J Brysacz (See above for address) TERMINATED: 08/07/2018 ATTORNEY TO BE NOTICED
Devi M Rao (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE
Scott B Wilkens (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Benjamin J Brysacz (See above for address) TERMINATED: 08/07/2018 ATTORNEY TO BE NOTICED
Devi M Rao (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE

Amicus Association of Medical School Pediatric Department Chairs
Amicus Endocrine Society
Amicus GLMA: Health Professionals Advancing LGBT Equality
Amicus National Association of Social Workers

Scott B Wilkens (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Benjamin J Brysacz (See above for address) TERMINATED: 08/07/2018 ATTORNEY TO BE NOTICED
Devi M Rao (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE
Scott B Wilkens (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Benjamin J Brysacz (See above for address) TERMINATED: 08/07/2018 ATTORNEY TO BE NOTICED
Devi M Rao (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE
Scott B Wilkens (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Benjamin J Brysacz (See above for address) TERMINATED: 08/07/2018 ATTORNEY TO BE NOTICED
Devi M Rao (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE
Scott B Wilkens (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Benjamin J Brysacz (See above for address) TERMINATED: 08/07/2018 ATTORNEY TO BE NOTICED
Devi M Rao (See above for address)

Amicus Pediatric Endocrine Society
Amicus World Professional Association for Transgender Health

TERMINATED: 06/15/2020 PRO HAC VICE
Scott B Wilkens (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Benjamin J Brysacz (See above for address) TERMINATED: 08/07/2018 ATTORNEY TO BE NOTICED
Devi M Rao (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE
Scott B Wilkens (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Benjamin J Brysacz (See above for address) TERMINATED: 08/07/2018 ATTORNEY TO BE NOTICED
Devi M Rao (See above for address) TERMINATED: 06/15/2020 PRO HAC VICE
Scott B Wilkens (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 09/05/2017
09/05/2017 09/05/2017 09/05/2017

# Docket Text
1 COMPLAINT Receipt No: 0973−20452249 − Fee: $400, filed by Plaintiffs JANE DOE, Tamasyn Reeves, Equality California, Nicolas Talbott, Aiden Stockman, Jaquice Tate, John Does 1−2. (Attorney Amy Christine Quartarolo added to party JANE DOE(pty:pla), Attorney Amy Christine Quartarolo added to party John Does 1−2(pty:pla), Attorney Amy Christine Quartarolo added to party Equality California(pty:pla), Attorney Amy Christine Quartarolo added to party Tamasyn Reeves(pty:pla), Attorney Amy Christine Quartarolo added to party Aiden Stockman(pty:pla), Attorney Amy Christine Quartarolo added to party Nicolas Talbott(pty:pla), Attorney Amy Christine Quartarolo added to party Jaquice Tate(pty:pla))(Quartarolo, Amy) (Entered: 09/05/2017)
2 CIVIL COVER SHEET filed by Plaintiffs JANE DOE, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Quartarolo, Amy) (Entered: 09/05/2017)
3 CERTIFICATION AND NOTICE of Interested Parties filed by Plaintiffs JANE DOE, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate, (Quartarolo, Amy) (Entered: 09/05/2017)
4 CORPORATE DISCLOSURE STATEMENT filed by Plaintiff Equality California (Quartarolo, Amy) (Entered: 09/05/2017)

09/05/2017 09/05/2017 09/05/2017 09/05/2017 09/05/2017 09/05/2017 09/08/2017 09/20/2017
09/28/2017
10/02/2017
10/02/2017 10/02/2017

5 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening),, 1 filed by Plaintiffs JANE DOE, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Quartarolo, Amy) (Entered: 09/05/2017)
6 NOTICE OF MOTION AND MOTION to Proceed Under Pseudonyms filed by Plaintiffs JANE DOE, John Does 1−2. (Attachments: # 1 Declaration of Adam S. Sieff, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Proposed Order) (Attorney Adam Sieff added to party JANE DOE(pty:pla), Attorney Adam Sieff added to party John Does 1−2(pty:pla)) (Sieff, Adam) (Entered: 09/05/2017)
7 NOTICE RE INTRA−DISTRICT TRANSFER by Clerk of Court due to incorrect intra−district venue selected by the filer. Case is transferred to the Eastern Division. Case has been assigned to Judge Jesus G. Bernal for all further proceedings. Any matters that may be referred to a Magistrate Judge are assigned to Kenly Kiya Kato. New Case Number 5:17−cv−01799−JGB−KKx. (car) (Entered: 09/05/2017)
8 NOTICE OF ASSIGNMENT to District Judge Jesus G. Bernal and Magistrate Judge Kenly Kiya Kato. (car) (Entered: 09/05/2017)
9 NOTICE TO PARTIES OF COURT−DIRECTED ADR PROGRAM filed. (car) (Entered: 09/05/2017)
10 60 DAY Summons Issued re Complaint (Attorney Civil Case Opening),, 1 as to Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (car) (Entered: 09/05/2017)
11 STANDING ORDER upon filing of the complaint by Judge Jesus G. Bernal. (ima) (Entered: 09/08/2017)
12 NOTICE of Appearance filed by attorney Marvin S Putnam on behalf of Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate (Attorney Marvin S Putnam added to party Jane Doe(pty:pla), Attorney Marvin S Putnam added to party John Does 1−2(pty:pla), Attorney Marvin S Putnam added to party Equality California(pty:pla), Attorney Marvin S Putnam added to party Tamasyn Reeves(pty:pla), Attorney Marvin S Putnam added to party Aiden Stockman(pty:pla), Attorney Marvin S Putnam added to party Nicolas Talbott(pty:pla), Attorney Marvin S Putnam added to party Jaquice Tate(pty:pla))(Putnam, Marvin) (Entered: 09/20/2017)
13 ORDER GRANTING DOE PLAINTIFFS MOTION FOR LEAVE TO PROCEED UNDER PSEUDONYMS by Judge Jesus G. Bernal re: MOTION 6 . IT IS HEREBY ORDERED THAT: 1. Doe Plaintiffs are granted leave to proceed in this litigation under pseudonyms John and Jane Doe; 2. Doe Plaintiffs must be referred to by all parties in all public filings, including the Complaint, as John or Jane Doe; 3. The identities of Doe Plaintiffs shall not be otherwise disclosed. (iva) (Entered: 09/29/2017)
14 NOTICE of Appearance filed by attorney Ryan Bradley Parker on behalf of Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson (Attorney Ryan Bradley Parker added to party Elaine C. Duke(pty:dft), Attorney Ryan Bradley Parker added to party Joseph F. Dunford, Jr.(pty:dft), Attorney Ryan Bradley Parker added to party James N. Mattis(pty:dft), Attorney Ryan Bradley Parker added to party Ryan D. McCarthy(pty:dft), Attorney Ryan Bradley Parker added to party Richard V. Spencer(pty:dft), Attorney Ryan Bradley Parker added to party Donald J. Trump(pty:dft), Attorney Ryan Bradley Parker added to party Heather A. Wilson(pty:dft))(Parker, Ryan) (Entered: 10/02/2017)
15 NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. Motion set for hearing on 10/30/2017 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Proposed Order) (Quartarolo, Amy) (Entered: 10/02/2017)
16 DECLARATION of Aiden Stockman in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 filed by Plaintiffs Jane Doe, John

10/02/2017 10/02/2017 10/02/2017 10/02/2017 10/02/2017 10/02/2017 10/02/2017 10/02/2017 10/02/2017 10/02/2017 10/02/2017 10/02/2017

Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Quartarolo, Amy) (Entered: 10/02/2017)
17 DECLARATION of Nicolas Talbott in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Quartarolo, Amy) (Entered: 10/02/2017)
18 DECLARATION of Tamasyn Reeves in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Quartarolo, Amy) (Entered: 10/02/2017)
19 DECLARATION of Jaquice Tate in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Quartarolo, Amy) (Entered: 10/02/2017)
20 DECLARATION of Rick Zbur, Executive Director of Equality California in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Quartarolo, Amy) (Entered: 10/02/2017)
21 DECLARATION of Admiral Michael Mullen in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Quartarolo, Amy) (Entered: 10/02/2017)
22 DECLARATION of Erik K. Fanning in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Quartarolo, Amy) (Entered: 10/02/2017)
23 DECLARATION of Raymond Edwin Mabus, Jr. in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Quartarolo, Amy) (Entered: 10/02/2017)
24 DECLARATION of Deborah Lee James in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Quartarolo, Amy) (Entered: 10/02/2017)
25 DECLARATION of Margaret C. Wilmoth in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Exhibit A)(Quartarolo, Amy) (Entered: 10/02/2017)
26 DECLARATION of Brad R. Carson in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Quartarolo, Amy) (Entered: 10/02/2017)
27 DECLARATION of George Richard Brown, MD in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Quartarolo, Amy) (Entered: 10/02/2017)
28 DECLARATION of Adam S. Sieff in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D,

10/02/2017 10/02/2017 10/02/2017 10/02/2017
10/05/2017 10/05/2017
10/05/2017 10/23/2017 10/23/2017

# 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T)(Sieff, Adam) (Entered: 10/02/2017)
29 APPLICATION to file document (Declarations in Support of Motion for Preliminary Injunction) under seal filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Proposed Order, # 2 Redacted Document Declaration of John Doe 1, # 3 Redacted Document Declaration of John Doe 2, # 4 Redacted Document Declaration of Jane Doe)(Quartarolo, Amy) (Entered: 10/02/2017)
30 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document (Declarations in Support of Motion for Preliminary Injunction) under seal 29 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Unredacted Document Declaration of John Doe 1, # 2 Unredacted Document Declaration of John Doe 2, # 3 Unredacted Document Declaration of Jane Doe)(Sieff, Adam) (Entered: 10/02/2017)
31 STIPULATION to Exceed Page Limitation as to Briefing in Connection with Plaintiffs' Motion for Preliminary Injunction and Defendants' Motion to Dismiss filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Proposed Order)(Quartarolo, Amy) (Entered: 10/02/2017)
32 ORDER ON STIPULATION TO EXCEED PAGE LIMITS FOR BRIEFING IN CONNECTION WITH PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION AND DEFENDANTS MOTION TO DISMISS by Judge Jesus G. Bernal. The Court, having reviewed and considered the parties Stipulation to Exceed Page Limit in connection with Plaintiffs Motion for Preliminary Injunction (the "Preliminary Injunction Motion") and Defendants Motion to Dismiss (the "Motion to Dismiss"), and for good cause appearing, the Stipulation is APPROVED. The following page limits shall apply in connection with briefing on the Motion: See document for further information. (dv) (Entered: 10/03/2017)
33 STIPULATION for Order Entering a Briefing Schedule for Plaintiffs' Motion for a Preliminary Injunction and Defendants' Forthcoming Motion to Dismiss filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Proposed Order)(Parker, Ryan) (Entered: 10/05/2017)
34 Notice of Appearance or Withdrawal of Counsel: for attorney Shannon Minter counsel for Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. Adding Shannon P. Minter as counsel of record for Aiden Stockman, Nicolas Talbott, Tamasyn Reeves, Jaquice Tate, John Does 1−2, Jane Doe, and Equality California for the reason indicated in the G−123 Notice. Filed by Plaintiffs Aiden Stockman, Nicolas Talbott, Tamasyn Reeves, Jaquice Tate, John Does 1−2, Jane Doe, and Equality California. (Minter, Shannon) (Entered: 10/05/2017)
35 ORDER ON STIPULATION FOR ENTRY OF A BRIEFING SCHEDULE FOR PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION AND DEFENDANTS FORTHCOMING MOTION TO DISMISS by Judge Jesus G. Bernal, re Stipulation for Order, 33 . The following schedule shall govern the briefing of Plaintiffs Motion for a Preliminary Injunction and Defendants forthcoming Motion to Dismiss. (SEE ORDER FOR DETAILS) (iva) (Entered: 10/06/2017)
36 NOTICE OF MOTION AND MOTION to Dismiss Case and Opposition to Plaintiffs' Motion for a Preliminary Injunction filed by Defendants' Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. Motion set for hearing on 11/20/2017 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Proposed Order) (Parker, Ryan) (Entered: 10/23/2017)
37 DECLARATION of Phillip A. Layman in support of NOTICE OF MOTION AND MOTION to Dismiss Case and Opposition to Plaintiffs' Motion for a Preliminary Injunction 36 filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N.

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Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Parker, Ryan) (Entered: 10/23/2017)
38 DECLARATION of John Kareta in support of NOTICE OF MOTION AND MOTION to Dismiss Case and Opposition to Plaintiffs' Motion for a Preliminary Injunction 36 filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Parker, Ryan) (Entered: 10/23/2017)
39 DECLARATION of Raymond Horoho in support of NOTICE OF MOTION AND MOTION to Dismiss Case and Opposition to Plaintiffs' Motion for a Preliminary Injunction 36 filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Parker, Ryan) (Entered: 10/23/2017)
40 NOTICE OF MOTION AND MOTION to File Amicus Brief filed by Amicus Trevor Project. Motion set for hearing on 11/20/2017 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Proposed Order) (Attorney Douglas Martin Champion added to party Trevor Project(pty:am)) (Champion, Douglas) (Entered: 10/25/2017)
41 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: NOTICE OF MOTION AND MOTION to File Amicus Brief 40 . The following error(s) was/were found: Hearing information is missing, incorrect, or not timely. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (gga) (Entered: 10/26/2017)
42 MINUTE ORDER for Supplemental Briefing (IN CHAMBERS) by Judge Jesus G. Bernal. (SEE ORDER FOR FURTHER DETAILS) The Court ORDERS both parties to file concurrent supplemental briefs, not to exceed eight pages, on: 1. Whether Jane Doe affects this case and, if so, how. 2. Whether the Court should stay this matter pending further proceedings in Jane Doe. The parties are to file these supplemental briefs no later than November 8, 2017. (iva) (Entered: 11/02/2017)
43 NOTICE OF MOTION AND MOTION to File Amicus Brief filed by Amicus Curiae Commonwealth of Massachusetts. Motion set for hearing on 11/20/2017 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Proposed Order) (Attorney Genevieve C Nadeau added to party Commonwealth of Massachusetts(pty:bkmov)) (Nadeau, Genevieve) (Entered: 11/06/2017)
44 APPLICATION of Non−Resident Attorney Jennifer Levi to Appear Pro Hac Vice on behalf of Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate (Pro Hac Vice Fee − $325.00 Previously Paid on 11/6/2017, Receipt No. 0973−20783300) filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Certificate of Good Standing, # 2 Proposed Order) (Quartarolo, Amy) (Entered: 11/06/2017)
45 NOTICE filed by Amicus Curiae Transgender Veterans Assoc., et al.. Notice of Appearance of Susan Baker Manning (Manning, Susan) (Entered: 11/06/2017)
46 NOTICE OF MOTION AND MOTION to File Amicus Brief Notice of Motion and Motion for Leave to File Brief as Amici Curiae in Support of Plaintiffs' Motion for Preliminary Injunction filed by Amicus Curiae Transgender Veterans Assoc., et al.. Motion set for hearing on 11/20/2017 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Brief of Amici Curiae In Support of Plaintiffs' Motion for Preliminary Injunction, # 2 Proposed Order) (Attorney Susan Baker Manning added to party Transgender Veterans Assoc., et al.(pty:am)) (Manning, Susan) (Entered: 11/06/2017)
47 OPPOSITION re: NOTICE OF MOTION AND MOTION to Dismiss Case and Opposition to Plaintiffs' Motion for a Preliminary Injunction 36 and Reply in Further Support of Motion for Preliminary Injunction filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Supplemental Declaration of Eric K. Fanning, # 2

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Supplemental Declaration of Raymond Edwin Maybus, Jr., # 3 Supplemental Declaration of Deborah Lee James, # 4 Supplemental Declaration of George Richard Brown, MD, # 5 Declaration of Mark J. Eitelberg, # 6 Supplemental Declaration of John Doe 1, # 7 Supplemental Declaration of John Doe 2)(Quartarolo, Amy) (Entered: 11/06/2017)
48 ORDER by Judge Jesus G. Bernal granting 44 Non−Resident Attorney Jennifer Levi APPLICATION to Appear Pro Hac Vice on behalf of Plaintiffs, designating Amy Quartarolo as local counsel. (ad) (Entered: 11/07/2017)
49 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice (Other) 45 . The following error(s) was/were found: Incorrect event selected. Correct event to be used is: Other Filings >> Notices >>Appearance. Note: Wrong event does not provide relief or changes sought.. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (lt) (Entered: 11/07/2017)
50 NOTICE OF MOTION AND MOTION to File Amicus Brief filed by Amici Curiae American Academy of Family Physicians, American Academy of Nursing, American College of Physicians, American Medical Women's Association, American Nurses Association, Association of Medical School Pediatric Department Chairs, Endocrine Society, GLMA: Health Professionals Advancing LGBT Equality, National Association of Social Workers, Pediatric Endocrine Society, World Professional Association for Transgender Health. Motion set for hearing on 11/20/2017 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Proposed Order) (Attorney Benjamin J Brysacz added to party American Academy of Family Physicians(pty:am), Attorney Benjamin J Brysacz added to party American Academy of Nursing(pty:am), Attorney Benjamin J Brysacz added to party American College of Physicians(pty:am), Attorney Benjamin J Brysacz added to party American Medical Women's Association(pty:am), Attorney Benjamin J Brysacz added to party American Nurses Association(pty:am), Attorney Benjamin J Brysacz added to party Association of Medical School Pediatric Department Chairs(pty:am), Attorney Benjamin J Brysacz added to party Endocrine Society(pty:am), Attorney Benjamin J Brysacz added to party GLMA: Health Professionals Advancing LGBT Equality(pty:am), Attorney Benjamin J Brysacz added to party National Association of Social Workers(pty:am), Attorney Benjamin J Brysacz added to party Pediatric Endocrine Society(pty:am), Attorney Benjamin J Brysacz added to party World Professional Association for Transgender Health(pty:am)) (Brysacz, Benjamin) (Entered: 11/08/2017)
51 RESPONSE filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson Regarding the Court's November 1, 2017 Order (Parker, Ryan) (Entered: 11/08/2017)
52 NOTICE OF MOTION AND MOTION to Intervene filed by Plaintiff−Intervenor State Of California. Motion set for hearing on 11/20/2017 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Exhibit [Proposed] Complaint−in−Intervention, # 2 Declaration of Enrique A. Monagas, # 3 Proposed Order Granting Motion to Intervene) (Attorney Enrique Antonio Monagas added to party State Of California(pty:intvp)) (Monagas, Enrique) (Entered: 11/08/2017)
53 NOTICE OF MOTION AND MOTION to Shorten Time for Hearing on re NOTICE OF MOTION AND MOTION to Intervene 52 to 11/20/17 filed by Plaintiff−Intervenor State Of California. Motion set for hearing on 11/20/2017 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Proposed Order Granting Motion to Shorten Time) (Monagas, Enrique) (Entered: 11/08/2017)
54 Supplemental BRIEF filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. Plaintiffs' Supplemental Briefing Regarding Doe v. Trump, No. 17−CV−01597−CKK (D.D.C. Oct. 30, 2017) regarding Minutes of In Chambers Order/Directive − no proceeding held, 42 . (Sieff, Adam) (Entered: 11/08/2017)

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55 OPPOSITION to NOTICE OF MOTION AND MOTION to Shorten Time for Hearing on re NOTICE OF MOTION AND MOTION to Intervene 52 to 11/20/17 53 filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Parker, Ryan) (Entered: 11/09/2017)
56 ORDER GRANTING MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION 46 by Judge Jesus G. Bernal. (ad) (Entered: 11/09/2017)
57 ORDER GRANTING THE TREVOR PROJECTS MOTION FOR LEAVE TO FILE AS AMICUS CURIAE 40 by Judge Jesus G. Bernal. (ad) (Entered: 11/09/2017)
58 ORDER GRANTING LEAVE FOR AMICI STATES TO FILE BRIEF by Judge Jesus G. Bernal Re 43 MOTION to File Amicus Brief. (ad) (Entered: 11/09/2017)
59 ORDER GRANTING MEDICAL, NURSING, MENTAL HEALTH, AND OTHER HEALTH CARE ORGANIZATIONS MOTION FOR LEAVE TO FILE AMICUS BRIEF 50 by Judge Jesus G. Bernal. (ad) (Entered: 11/09/2017)
60 ORDER by Judge Jesus G. Bernal Re State of California's 53 MOTION to Shorten Time: Good cause appearing, the motion of Proposed Intervenor State of California for shortened time on its Motion to Intervene 52 is hereby GRANTED. Any opposition to the Motion to Intervene shall be filed no later than: Tuesday, November 14, 2017. Any reply in support of the Motion to Intervene shall be filed no later than: Thursday, November 15, 2017. A hearing on the Motion to Intervene is set for November 20, 2017 at 9:00am in Courtroom 1 of the above−entitled Court. IT IS SO ORDERED. (ad) (Entered: 11/09/2017)
61 REPLY in support of motion NOTICE OF MOTION AND MOTION to Dismiss Case and Opposition to Plaintiffs' Motion for a Preliminary Injunction 36 filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Parker, Ryan) (Entered: 11/13/2017)
62 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Intervene 52 filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Parker, Ryan) (Entered: 11/14/2017)
63 NOTICE of Supplemental Authority in Further Support of Plaintiffs' Supplemental Briefing Regarding Doe v. Trump, No. 17−cv−01597−CKK (D.D.C. Oct 30, 2017) 54 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Quartarolo, Amy) (Entered: 11/14/2017)
64 AMENDED ORDER RE STATE OF CALIFORNIA'S MOTION TO SHORTEN TIME 53 , 60 by Judge Jesus G. Bernal Re NOTICE OF MOTION AND MOTION to Intervene 52 : (see document image for specifics). IT IS SO ORDERED. (ad) (Entered: 11/16/2017)
65 REPLY in Support of NOTICE OF MOTION AND MOTION to Intervene 52 filed by Intervenor Plaintiff State Of California. (Monagas, Enrique) (Entered: 11/16/2017)
66 MINUTES ORDER (1) GRANTING State of Californias Motion to Intervene as Party Plaintiff 52 ; (2) ORDERING Supplemental Briefing; and (3) CONTINUING the Hearing on Pending Matters to December 11, 2017 at 9:00am by Judge Jesus G. Bernal: (see document image for specifics). The Court is scheduled to hear arguments concerning Plaintiffs Motion for Preliminary Injunction (Dkt. No. 15) and Defendants Motion to Dismiss (Dkt. No. 36) on November 20, 2017. The Court CONTINUES that hearing to December 11, 2017, at 9:00am. The Court ORDERS the parties to file concurrent supplemental briefs, not to exceed ten pages, regarding whether Plaintiffs John Doe 1 and John Doe 2 have separately demonstrated injury−in−fact pertaining to the Sex Reassignment Surgery Directive. In their briefs, the parties should address the meaning of the terms necessary to protect the health and begun a course of treatment to reassign his or her sex and discuss whether and how these terms apply to John Doe 1 and John Doe 2. These supplemental briefs are to be filed no later than December 1, 2017. IT IS SO ORDERED. (ad) (Entered: 11/16/2017)

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67 APPLICATION of Non−Resident Attorney Scott B. Wilkens to Appear Pro Hac Vice on behalf of Amicus Parties American Academy of Family Physicians, American Academy of Nursing, American College of Physicians, American Medical Women's Association, American Nurses Association, Association of Medical School Pediatric Department Chairs, Endocrine Society, GLMA: Health Professionals Advancing LGBT Equality, National Association of Social Workers, Pediatric Endocrine Society, World Professional Association for Transgender Health (Pro Hac Vice Fee − Fee Paid, Receipt No. 0973−20903928) filed by Amici Curiae American Academy of Family Physicians, American Academy of Nursing, American College of Physicians, American Medical Women's As sociation, American Nurses Association, Association of Medical School Pediatric Department Chairs, Endocrine Society, GLMA: Health Professionals Advancing LGBT Equality, National Association of Social Workers, Pediatric Endocrine Society, World Professional Association for Transgender Health. (Attachments: # 1 District of Columbia Certificate of Good Standing, # 2 California Certificate of Standing, # 3 Proposed Order) (Brysacz, Benjamin) (Entered: 12/01/2017)
68 APPLICATION of Non−Resident Attorney Devi M. Rao to Appear Pro Hac Vice on behalf of Amicus Parties American Academy of Family Physicians, American Academy of Nursing, American College of Physicians, American Medical Women's Association, American Nurses Association, Association of Medical School Pediatric Department Chairs, Endocrine Society, GLMA: Health Professionals Advancing LGBT Equality, National Association of Social Workers, Pediatric Endocrine Society, World Professional Association for Transgender Health (Pro Hac Vice Fee − Fee Paid, Receipt No. 0973−20904013) filed by Amici Curiae American Academy of Family Physicians, American Academy of Nursing, American College of Physicians, American Medical Women's Associa tion, American Nurses Association, Association of Medical School Pediatric Department Chairs, Endocrine Society, GLMA: Health Professionals Advancing LGBT Equality, National Association of Social Workers, Pediatric Endocrine Society, World Professional Association for Transgender Health. (Attachments: # 1 District of Columbia Certificate of Good Standing, # 2 California Certificate of Standing, # 3 Proposed Order) (Brysacz, Benjamin) (Entered: 12/01/2017)
69 APPLICATION of Non−Resident Attorney Mary Bonauto to Appear Pro Hac Vice on behalf of Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate (Pro Hac Vice Fee − Fee Paid, Receipt No. 0973−20906142) filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Certificate of Good Standing, # 2 Proposed Order) (Quartarolo, Amy) (Entered: 12/01/2017)
70 SUPPLEMENT to NOTICE OF MOTION AND MOTION to Dismiss Case and Opposition to Plaintiffs' Motion for a Preliminary Injunction 36 filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Parker, Ryan) (Entered: 12/01/2017)
71 DECLARATION of Terry Adirim in support of NOTICE OF MOTION AND MOTION to Dismiss Case and Opposition to Plaintiffs' Motion for a Preliminary Injunction 36 filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Parker, Ryan) (Entered: 12/01/2017)
72 SUPPLEMENT to NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 and Opposition to Motion to Dismiss Case [Dk #47]. [Supplemental Brief Re Minute Order of November 16, 2017] filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Sieff, Adam) (Entered: 12/01/2017)
73 SUPPLEMENT to NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 filed by Intervenor Plaintiff State Of California. (Monagas, Enrique) (Entered: 12/01/2017)

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74 ORDER by Judge Jesus G. Bernal: Granting 69 Non−Resident Attorney Mary Bonauto APPLICATION to Appear Pro Hac Vice on behalf of Plaintiffs Aiden Stockman, Nicolas Talbott, Jane Doe, Jaquice Tate, John DOes 1−2, Tamasyn Reeves and Equality California, designating Amy Quartarolo as local counsel. (lwag) (Entered: 12/06/2017)
75 ORDER by Judge Jesus G. Bernal: granting 67 Non−Resident Attorney Scott B. Wilkens APPLICATION to Appear Pro Hac Vice on behalf of Amicus Parties, American Academy of Family Physicians, American Academy of Nursing, American College of Physicians, American Medical Women's Association, American Nurses Association, Association of Medical School Pediatric Department Chairs Endocrine Society, GLMA: Health Professionals Advancing LGBT Equality, National Association of Social Workers, et al, designating Benjamin J. Brysacz as local counsel. (iva) (Entered: 12/11/2017)
76 ORDER by Judge Jesus G. Bernal: granting 68 Non−Resident Attorney Devi M. Rao APPLICATION to Appear Pro Hac Vice on behalf of Amicus Parties, American Academy of Family Physicians, American Academy of Nursing, American College of Physicians, American Medical Women's Association, American Nurses Association, Association of Medical School Pediatric Department Chairs Endocrine Society, GLMA: Health Professionals Advancing LGBT Equality, National Association of Social Workers, et al, designating Benjamin J. Brysacz as local counsel. (iva) (Entered: 12/11/2017)
77 SUPPLEMENT to NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 15 Notice of Supplemental Authority Regarding Doe v. Trump, No. 17−CV−01597−CKK (D.D.C.) filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Quartarolo, Amy) (Entered: 12/11/2017)
78 MINUTES OF HEARING ON Defendants Motion to Dismiss Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure 36 ; Plaintiffs Motion for Preliminary Injunction 15 held before Judge Jesus G. Bernal: The Court heard argument and took the above motions under submission. IT IS SO ORDERED. Court Reporter: Adele C Frazier. (ad) (Entered: 12/22/2017)
79 MINUTES Order (1) DENYING Defendants Motion to Dismiss Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure 36 ; and (2) GRANTING Plaintiffs Motion for Preliminary Injunction 15 by Judge Jesus G. Bernal: (see document image for specifics). IT IS SO ORDERED. (ad) (Entered: 12/22/2017)
80 NOTICE filed by Defendant Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Parker, Ryan) (Entered: 03/23/2018)
81 DECLARATION of Ryan B. Parker re Notice (Other) 80 filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Exhibit)(Parker, Ryan) (Entered: 03/23/2018)
82 NOTICE OF MOTION AND MOTION for Relief from Preliminary Injunction filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. Motion set for hearing on 4/23/2018 at 09:00 AM before Judge Jesus G. Bernal. (Parker, Ryan) (Entered: 03/23/2018)
83 DECLARATION of Ryan B. Parker in support of NOTICE OF MOTION AND MOTION for Relief from Preliminary Injunction 82 filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Parker, Ryan) (Entered: 03/23/2018)
84 DECLARATION of Ryan B. Parker in support of NOTICE OF MOTION AND MOTION for Relief from Preliminary Injunction 82 filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Parker, Ryan) (Entered: 03/23/2018)

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85 EX PARTE APPLICATION to Strike NOTICE OF MOTION AND MOTION for Relief from Preliminary Injunction 82 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Declaration of Amy C. Quartarolo, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Proposed Order) (Quartarolo, Amy) (Entered: 03/27/2018)
86 NOTICE of Change of Attorney Business or Contact Information: for attorney Jennifer Levi counsel for Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. Filed by Plaintiffs Aiden Stockman; Nicolas Talbott; Tamasyn Reeves; Jaquice Tate; John Does 1−2; Jane Doe; and Equality California. (Levi, Jennifer) (Entered: 03/29/2018)
87 NOTICE of Change of Attorney Business or Contact Information: for attorney Mary L Bonauto counsel for Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. Filed by Plaintiffs Aiden Stockman; Nicolas Talbott; Tamasyn Reeves; Jaquice Tate; John Does 1−2; Jane Doe; and Equality California. (Bonauto, Mary) (Entered: 03/29/2018)
88 STIPULATION for Hearing re [Stipulation for Entry of a Briefing Schedule and Continuance of Hearing on Defendants' Motion to Dissolve the Preliminary Injunction, and Request for Scheduling Conference] filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Proposed Order)(Quartarolo, Amy) (Entered: 03/29/2018)
89 ORDER ON STIPULATION FOR ENTRY OF A BRIEFING SCHEDULE AND CONTINUANCE OF HEARING ON DEFENDANTS' MOTION TO DISSOLVE THE PRELIMINARY INJUNCTION, AND REQUEST FOR SCHEDULING CONFERENCE by Judge Jesus G. Bernal, re Stipulation for Hearing, 88 . The Court, having reviewed and considered the Parties' Stipulation for Entry of a Briefing Schedule and Continuance of Hearing on Defendants' Motion to Dissolve the Preliminary Injunction [Docket No. 82 ] (the Motion), and Request for Scheduling Conference (the Stipulation), and for good cause shown, the Stipulation is APPROVED. The following schedule shall govern the briefing of Defendants' Motion: Plaintiffs will file their opposition to the Motion no later than April 25, 2018; and Defendants will file their reply in support of the Motion no later than May 7, 2018. The hearing on the Motion shall take place on May 14, 2018 at 9:00 a.m., which date and time shall also serve as a Scheduling Conference. (iva) (Entered: 04/03/2018)
90 STIPULATION for Protective Order filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Proposed Order)(Parker, Ryan) (Entered: 04/17/2018)
91 STIPULATION for Issuance of a Federal Rule of Evidence 502(d) Order filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Proposed Order)(Parker, Ryan) (Entered: 04/17/2018)
92 MINUTES (IN CHAMBERS) ORDER RE: STIPULATED PROTECTIVE ORDER by Magistrate Judge Kenly Kiya Kato re Stipulation for Issuance, 91 , Stipulation for Protective Order 90 The parties are advised that the Court declines to issue the proposed orders to which they have stipulated. (SEE ORDER FOR DETAILS) (dts) (Entered: 04/18/2018)
93 NOTICE filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. Defendants' Notice of Filing the Administrative Record (Attachments: # 1 Declaration Certifying the Administrative Record, # 2 Index of Administrative Record, # 3 AR Part 1, # 4 AR Part 2, # 5 AR Part 3, # 6 AR Part 4, # 7 AR Part 5, # 8 AR Part 6, # 9 AR Part 7, # 10 AR Part 8, # 11 AR Part 9, # 12 AR Part 10, # 13 AR Part 11, # 14 AR Part 12, # 15 AR Part 13)(Parker, Ryan) (Entered: 04/20/2018)
94 STIPULATION for Protective Order filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Proposed Order)(Parker, Ryan) (Entered: 04/25/2018)

04/25/2018 04/25/2018 04/25/2018 04/25/2018 04/25/2018 04/25/2018
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95 STIPULATION for Issuance of a Federal Rule of Evidence 502(d) Order filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Proposed Order)(Parker, Ryan) (Entered: 04/25/2018)
96 PROTECTIVE ORDER AND CROSS−USE AGREEMENT by Magistrate Judge Kenly Kiya Kato re Stipulation for Protective Order 94 . (iva) (Entered: 04/25/2018)
97 FEDERAL RULE OF EVIDENCE 502(d) ORDER by Magistrate Judge Kenly Kiya Kato, re Stipulation for Issuance, 95 . (iva) (Entered: 04/25/2018)
98 OPPOSITION re: NOTICE OF MOTION AND MOTION for Relief from Preliminary Injunction 82 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Proposed Order)(Quartarolo, Amy) (Entered: 04/25/2018)
99 DECLARATION of Adam S. Sieff in Opposition to NOTICE OF MOTION AND MOTION for Relief from Preliminary Injunction 82 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Sieff, Adam) (Entered: 04/25/2018)
100 DECLARATION of George Richard Brown, MD in Opposition to NOTICE OF MOTION AND MOTION for Relief from Preliminary Injunction 82 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Sieff, Adam) (Entered: 04/25/2018)
101 DECLARATION of Joshua D. Safer, MD in Opposition to NOTICE OF MOTION AND MOTION for Relief from Preliminary Injunction 82 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Exhibit A)(Sieff, Adam) (Entered: 04/25/2018)
102 DECLARATION of Brad R. Carson in Opposition to NOTICE OF MOTION AND MOTION for Relief from Preliminary Injunction 82 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sieff, Adam) (Entered: 04/25/2018)
103 JOINT REPORT Rule 26(f) Discovery Plan ; estimated length of trial 10 days, filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate, Intervenor Plaintiff State Of California.. (Quartarolo, Amy) (Entered: 05/04/2018)
104 EXHIBIT Filed filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. [Exhibit A] as to Joint Report Rule 26(f) Discovery Plan, 103 . (Quartarolo, Amy) (Entered: 05/04/2018)
105 REPLY In Support of NOTICE OF MOTION AND MOTION for Relief from Preliminary Injunction 82 filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Parker, Ryan) (Entered: 05/07/2018)
106 MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal Order (1) VACATING the Hearing Scheduled for May 14, 2018; and (2) ORDERING the Parties to Meet and Confer Re 82 MOTION for Relief: The parties are to select one of the following 2018 dates: June 4, June 25, July 2, July 9, July 16, or July 23. The parties should file a joint stipulation and proposed order no later than May 16, 2018 informing the Court of their proposed date. IT IS SO ORDERED. (ad) (Entered: 05/09/2018)
107 NOTICE of Appearance filed by attorney Robert Mark Norway on behalf of Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson (Attorney Robert Mark Norway added to party Elaine C. Duke(pty:dft), Attorney Robert Mark Norway added to party Joseph F. Dunford, Jr.(pty:dft), Attorney Robert Mark Norway added to

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party James N. Mattis(pty:dft), Attorney Robert Mark Norway added to party Ryan D. McCarthy(pty:dft), Attorney Robert Mark Norway added to party Richard V. Spencer(pty:dft), Attorney Robert Mark Norway added to party Donald J. Trump(pty:dft), Attorney Robert Mark Norway added to party Heather A. Wilson(pty:dft))(Norway, Robert) (Entered: 05/11/2018)
108 Joint STIPULATION for Hearing re Order on Motion for Relief, 106 filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Proposed Order)(Norway, Robert) (Entered: 05/16/2018)
109 MINUTE ORDER ORDERING the Parties to File a Joint Stipulation (IN CHAMBERS) by Judge Jesus G. Bernal. On May 9, 2018, the Court ordered the parties to meet and confer to discuss a mutually agreeable date for a hearing on Defendants' Motion for Relief from Preliminary Injunction (Dkt. No. 82). (Dkt. No. 106.) In that order, the Court presented the parties with several possible dates: June 4, June 25, July 2, July 9, July 16, or July 23. (Id.) The parties proposed to hold the hearing on July 23, 2018. (Dkt. No. 108 .) However, due to unexpected circumstances, the Court will not be holding hearings on July 23. Accordingly, the Court ORDERS the parties to file a joint stipulation as to a different hearing date. The parties are to select one of the following 2018 dates: July 2, July 9, July 16, July 30, or August 6. The parties are ordered to file this joint stipulation by May 31, 2018. IT IS SO ORDERED. (iva) (Entered: 05/29/2018)
110 Joint STIPULATION for Order setting hearing on Defendants Motion to Dissolve the Preliminary Injunction filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Proposed Order)(Norway, Robert) (Entered: 05/31/2018)
111 ORDER by Judge Jesus G. Bernal, On Stipulation for Entry of Order Resetting Hearing on Defendants' Motion to Dissolve the Preliminary Injunction and Scheduling Conference. 110 The hearing on the Motion shall take place on, 2018, at 9:00 a.m., which date and time shall also serve as a Scheduling Conference. (es) (Entered: 06/05/2018)
112 Notice of Appearance or Withdrawal of Counsel: for attorney Ryan Bradley Parker counsel for Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. Ryan Bradley Parker is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Defendants Donal J. Trump, et al.. (Parker, Ryan) (Entered: 06/07/2018)
113 NOTICE of Decision: filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Supplemental Authority) (Attachments: # 1 Hawaii v. Trump)(Norway, Robert) (Entered: 07/18/2018)
114 NOTICE of Appearance filed by attorney Matthew Skurnik on behalf of Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson (Attorney Matthew Skurnik added to party Elaine C. Duke(pty:dft), Attorney Matthew Skurnik added to party Joseph F. Dunford, Jr.(pty:dft), Attorney Matthew Skurnik added to party James N. Mattis(pty:dft), Attorney Matthew Skurnik added to party Ryan D. McCarthy(pty:dft), Attorney Matthew Skurnik added to party Richard V. Spencer(pty:dft), Attorney Matthew Skurnik added to party Donald J. Trump(pty:dft), Attorney Matthew Skurnik added to party Heather A. Wilson(pty:dft))(Skurnik, Matthew) (Entered: 07/23/2018)
115 NOTICE of Decision: Recent Authority filed by Plaintiff−Intervenor State Of California. (Monagas, Enrique) (Entered: 07/24/2018)
116 CIVIL TRIAL SCHEDULING ORDER by Judge Jesus G. Bernal. Amended Pleadings due by 11/5/2018. Discovery cut−off (Last day to hear discovery motions) 3/25/2019. Dispositive Motions cutoff (last day to hear) due by 6/3/2019. Last date to conduct settlement conference is 4/22/2019. Final Pretrial Conference set for 7/15/2019 at 11:00 AM before Judge Jesus G. Bernal. Jury Trial set for 7/30/2019 at 9:00 AM before Judge Jesus G. Bernal. (jlo) (Entered: 08/01/2018)

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117 MINUTES OF Scheduling Conference held before Judge Jesus G. Bernal. A trial schedule was set. See separate trial scheduling order for more details. Amended Pleadings due by 11/5/2018. Expert Disclosure (Rebuttal) 3/11/19; Expert Disclosure (Initial) 2/25/19; Discovery cut−off 3/25/2019. Motions due by 6/3/2019. Last date to conduct settlement conference is 4/22/2019. Final Pretrial Conference set for 7/15/2019 11:00 AM before Judge Jesus G. Bernal. Jury Trial set for 7/30/2019 09:00 AM before Judge Jesus G. Bernal. Court Reporter: Adele C. Frazier. (twdb) (Entered: 08/01/2018)
118 ORDER/REFERRAL to ADR Procedure No 1 by Judge Jesus G. Bernal. Case ordered to Magistrate Judge Kenly Kiya Kato for Settlement Conference. ADR Proceeding to be held no later than 4/22/19. (twdb) (Entered: 08/01/2018)
119 MINUTES OF Motion Hearing held before Judge Jesus G. Bernal: taking under advisement 82 MOTION for Relief; The parties are to provide initial disclosures no later than August 13, 2018. Court Reporter: Adele C. Frazier. (twdb) (Entered: 08/01/2018)
120 TRANSCRIPT ORDER for Court Reporter.Transcript preparation will not begin until payment has been satisfied with the court reporter. (ha) (Entered: 08/01/2018)
121 REQUEST TO SUBSTITUTE ATTORNEY Andrew G. Sullivan in place of attorney Benjamin J. Brysacz filed by Amici Curiae American Academy of Family Physicians, American Academy of Nursing, American College of Physicians, American Medical Women's Association, American Nurses Association, Association of Medical School Pediatric Department Chairs, Endocrine Society, GLMA: Health Professionals Advancing LGBT Equality, National Association of Social Workers, Pediatric Endocrine Society, World Professional Association for Transgender Health. (Attachments: # 1 Proposed Order) (Brysacz, Benjamin) (Entered: 08/03/2018)
122 ORDER by Judge Jesus G. Bernal: granting 121 Request to Substitute Attorney. Attorney Benjamin J Brysacz terminated. (twdb) (Entered: 08/07/2018)
123 NOTICE of Supplemental Authority Regarding Doe 2 v. Trump, No. 17−CV−01597−CKK (D.D.C.) filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Exhibit A)(Quartarolo, Amy) (Entered: 08/07/2018)
124 MINUTES (IN CHAMBERS) Order DENYING Defendants' Motion to Dissolve the Preliminary Injunction 82 by Judge Jesus G. Bernal. For the foregoing reasons, the Court DENIES Defendants' Motion to Dissolve the Preliminary Injunction. IT IS SO ORDERED. (lom) (Entered: 09/18/2018)
125 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. Appeal of Order on Motion for Relief, 124 . (Appeal Fee − Not Required for US Goverment.) (Norway, Robert) (Entered: 11/16/2018)
126 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 18−56539 assigned to Notice of Appeal to 9th Circuit Court of Appeals, 125 (twdb) (Entered: 11/19/2018)
127 NOTICE Notice of Filing filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Exhibit A)(Skurnik, Matthew) (Entered: 11/21/2018)
128 NOTICE of filing petition for a writ of certiori before judgment filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Petition for a Writ of Certiorari Before Judgment)(Norway, Robert) (Entered: 11/26/2018)
129 NOTICE of Appearance filed by attorney Sharon L O'Grady on behalf of Intervenor Plaintiff State Of California (Attorney Sharon L O'Grady added to party State Of California(pty:intvp))(O'Grady, Sharon) (Entered: 11/28/2018)
130 NOTICE OF MOTION AND MOTION to Stay pending The Preliminary Injunction Pending Appeal filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N.

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Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. Motion set for hearing on 1/7/2019 at 09:00 AM before Judge Jesus G. Bernal. (Norway, Robert) (Entered: 11/28/2018)
131 Notice of Appearance or Withdrawal of Counsel: for attorney Sharon L O'Grady counsel for Intervenor Plaintiff State Of California. Enrique A. Monagas is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by plaintiff−intervenor State of California. (O'Grady, Sharon) (Entered: 11/29/2018)
132 NOTICE of Change of address by Robert Mark Norway attorney for Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Heather A. Wilson. Changing attorneys address to 1100 L Street, N.W., Washington, D.C. 20530. Filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Heather A. Wilson. (Norway, Robert) (Entered: 11/29/2018)
133 NOTICE of Change of address by Matthew Skurnik attorney for Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. Changing attorneys address to 1100 L Street, NW, Washington, DC 20005. Filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Skurnik, Matthew) (Entered: 12/06/2018)
134 Opposition to Motion to Stay Pending Appeal re: NOTICE OF MOTION AND MOTION to Stay pending The Preliminary Injunction Pending Appeal 130 filed by Intervenor Plaintiff State Of California. (O'Grady, Sharon) (Entered: 12/17/2018)
135 NOTICE of Filing filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Skurnik, Matthew) (Entered: 12/17/2018)
136 OPPOSITION to Motion to Stay Pending Appeal re: NOTICE OF MOTION AND MOTION to Stay pending The Preliminary Injunction Pending Appeal 130 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Quartarolo, Amy) (Entered: 12/17/2018)
137 ORDER from Ninth Circuit Court of Appeals filed. Proceedings in this case shall be held in abeyance pending issuance of this courts mandate in Case No. 18−35347, Karnoski, et al. v. Trump, et al., or further order of the court. re: Notice of Appeal to 9th Circuit Court of Appeals, 125 filed by Ryan D. McCarthy, James N. Mattis, Richard V. Spencer, Elaine C. Duke, Heather A. Wilson, Joseph F. Dunford, Jr., Donald J. Trump. CCA # 18−56539. (twdb) (Entered: 12/21/2018)
138 EX PARTE APPLICATION to Continue oral argument on Defendants' Motion To Stay The Preliminary Injunction Pending Appeal from January 7, 2019 to January 28, 2019 filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Declaration and Exhibit A, # 2 Proposed Order) (Norway, Robert) (Entered: 12/28/2018)
139 ORDER by Judge Jesus G. Bernal: Granting 138 EX PARTE APPLICATION to Continue 1/7/19 Hearing in Light of Lapse of Appropriations. Motion hearing continued to 1/28/2019 at 09:00 AM before Judge Jesus G. Bernal. (twdb) (Entered: 01/02/2019)
140 SUPPLEMENT to NOTICE OF MOTION AND MOTION to Stay pending The Preliminary Injunction Pending Appeal 130 Notice of Supplemental Authority filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 D.C. Circuit Judgment)(Norway, Robert) (Entered: 01/18/2019)
141 NOTICE of Decision: Supreme Court Stay of Preliminary Injunction filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Order)(Skurnik, Matthew) (Entered: 01/22/2019)

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142 SCHEDULING NOTICE and ORDER by Judge Jesus G. Bernal. The Motion to Stay Pending the Preliminary Injunction Pending Appeal is DENIED as MOOT. The hearing scheduled for January 28, 2019 is vacated. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (mga) TEXT ONLY ENTRY (Entered: 01/24/2019)
143 STIPULATION for Order to Modify Case Schedule filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Proposed Order)(Quartarolo, Amy) (Entered: 02/13/2019)
144 ORDER ON JOINT STIPULATION TO MODIFY CASE SCHEDULE by Judge Jesus G. Bernal, re Stipulation 143 . NOTE CHANGE MADE BY COURT. All Discovery cut−off (including hearing of discovery motions) 8/5/2019., Dispositive Motion Hearing Cut−Off 10/21/2019., Last date to conduct settlement conference is 8/26/2019., Final Pretrial Conference continued to 1/28/2020 at 11:00 AM before Judge Jesus G. Bernal., Trial continued to 2/10/2020 at 09:00 AM before Judge Jesus G. Bernal. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 02/15/2019)
145 AMENDED ORDER ON JOINT STIPULATION TO MODIFY CASE SCHEDULE by Judge Jesus G. Bernal. (yl) (Entered: 03/01/2019)
146 NOTICE filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Norway, Robert) (Entered: 03/08/2019)
147 Notice of Appearance or Withdrawal of Counsel: for attorney Lara Haddad counsel for Intervenor Plaintiff State Of California. Adding Lara Haddad as counsel of record for Intervenor State of California for the reason indicated in the G−123 Notice. Filed by intervenor State of California. (Attorney Lara Haddad added to party State Of California(pty:intvp))(Haddad, Lara) (Entered: 03/19/2019)
148 Notice of Appearance or Withdrawal of Counsel: for attorney Amie L Medley counsel for Intervenor Plaintiff State Of California. Adding Amie L. Medley as counsel of record for State of California for the reason indicated in the G−123 Notice. Filed by intervenor State of California. (Attorney Amie L Medley added to party State Of California(pty:intvp))(Medley, Amie) (Entered: 03/19/2019)
149 Notice of Electronic Filing re Notice of Appearance or Withdrawal of Counsel (G−123) 147 , Notice of Appearance or Withdrawal of Counsel (G−123) 148 , e−mailed to Genevieve C Nadeau of genevieve.nadeau@state.ma.us bounced due to 5.3.0 − Other mail system problem 550−'5.1.1 User Unknown'. The primary e−mail address associated with the attorney record has been deleted. Pursuant to Local Rules it is the attorneys obligation to maintain all personal contact information including e−mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ir) TEXT ONLY ENTRY (Entered: 03/25/2019)
150 NOTICE OF MOTION AND MOTION to Vacate Order, Set/Reset Deadlines/Hearings 145 filed by plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. Motion set for hearing on 6/3/2019 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Declaration of Adam S. Sieff, # 2 Exhibit A to Declaration of Adam S. Sieff, # 3 Exhibit B to Declaration of Adam S. Sieff, # 4 Exhibit C to Declaration of Adam S. Sieff, # 5 Exhibit D to Declaration of Adam S. Sieff, # 6 Exhibit E to Declaration of Adam S. Sieff, # 7 Exhibit F to Declaration of Adam S. Sieff, # 8 Exhibit G to Declaration of Adam S. Sieff, # 9 Proposed Order) (Sieff, Adam) (Entered: 05/06/2019)
151 NOTICE OF MOTION AND MOTION to Vacate Order, Set/Reset Deadlines/Hearings 145 filed by plaintiff−intervenor State Of California. Motion set for hearing on 6/3/2019 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Declaration of Amie L. Medley, # 2 Proposed Order) (Medley, Amie) (Entered: 05/06/2019)

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152 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Vacate Order, Set/Reset Deadlines/Hearings 145 151 , NOTICE OF MOTION AND MOTION to Vacate Order, Set/Reset Deadlines/Hearings 145 150 filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Karnoski Plaintiffs Second Requests for Production, # 2 Doe Order, # 3 Proposed Order)(Skurnik, Matthew) (Entered: 05/13/2019)
153 STIPULATION to Continue Plaintiffs' Deadline for Initial Expert Witness Designations from May 24, 2019 to June 24, 2019 Re: Order,,, Set/Reset Deadlines/Hearings,, 144 filed by plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Proposed Order)(Quartarolo, Amy) (Entered: 05/15/2019)
154 ORDER GRANTING STIPULATION FOR ENTRY OF ORDER CONTINUING PLAINTIFFS DEADLINE FOR INITIAL EXPERT WITNESS DESIGNATIONS 153 by Judge Jesus G. Bernal. The initial deadline for Plaintiffs to designate their expert witnesses shall be continued from May 24, 2019 to June 24, 2019. (See Order for further details) (yl) (Entered: 05/17/2019)
155 REPLY in support of NOTICE OF MOTION AND MOTION to Vacate Order, Set/Reset Deadlines/Hearings 145 150 filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Quartarolo, Amy) (Entered: 05/20/2019)
156 REPLY in Support of NOTICE OF MOTION AND MOTION to Vacate Order, Set/Reset Deadlines/Hearings 145 151 filed by Intervenor Plaintiff State Of California. (Attachments: # 1 Declaration of Lara Haddad)(Medley, Amie) (Entered: 05/20/2019)
157 MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal: Order (1) GRANTING Plaintiffs and Plaintiff− Intervenors Motions to Vacate the Current Case Schedule (Dkt. Nos. 150 , 151 ); (2) VACATING the Current Case Schedule; and (3) VACATING the June 3, 2019 Hearing. The Amended Scheduling Order is VACATED and the remaining deadlines set forth therein are SUSPENDED. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 05/23/2019)
158 Joint STIPULATION for Extension of Time to File Proposed Amended Schedule filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Proposed Order)(Skurnik, Matthew) (Entered: 07/05/2019)
159 ORDER by Judge Jesus G. Bernal, Approving Joint Stipulation Concerning Case Schedule 158 . The parties will file a proposed amended schedule to reset case deadlines by July 12, 2019. (twdb) (Entered: 07/09/2019)
160 Notice of Appearance or Withdrawal of Counsel: for attorney Adam S Sieff counsel for Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. Filed by Plaintiffs Aiden Stockman, Nicolas Talbott, Tamasyn Reeves, Jaquice Tate, John Does 1−2, Jane Doe, and Equality California. (Sieff, Adam) (Entered: 07/12/2019)
161 Joint STIPULATION for Order Set Case Schedule filed by Defendants Elaine C. Duke, Joseph F. Dunford, Jr., James N. Mattis, Ryan D. McCarthy, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. (Attachments: # 1 Proposed Order)(Skurnik, Matthew) (Entered: 07/12/2019)
162 ORDER by Judge Jesus G. Bernal, Approving Joint Stipulation Concerning Case Schedule 161 . All Discovery cut−off 4/13/2020., Motions due by 8/24/2020., Final Pretrial Conference continued to 10/19/2020 at 11:00 AM before Judge Jesus G. Bernal., Jury Trial continued to 11/17/2020 at 09:00 AM before Judge Jesus G. Bernal. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 07/18/2019)
163 NOTICE OF DISMISSAL filed by Plaintiffs Equality California, Nicolas Talbott, Aiden Stockman, Jane Doe, Tamasyn Reeves, Jaquice Tate, John Does 1−2 pursuant to FRCP 41a(1) as to Donald J. Trump. (Quartarolo, Amy) (Entered: 07/26/2019)
164 NOTICE OF DISMISSAL filed by plaintiff−intervenor State Of California pursuant to FRCP 41a(1) Plaintiff−Intervenor State of California's Notice of Voluntary Dismissal

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of Defendant Donald J. Trump as to State Of California. (Medley, Amie) (Entered: 07/26/2019)
165 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 125 filed by Ryan D. McCarthy, James N. Mattis, Richard V. Spencer, Elaine C. Duke, Heather A. Wilson, Joseph F. Dunford, Jr., Donald J. Trump. CCA # 18−56539. The joint motion to remand is granted. The district court's September 18, 2018 order denying defendants' motion to dissolve the December 22, 2017 preliminary injunction is vacated. The preliminary injunction is stayed pending the district court's reconsideration of defendants motion to dissolve the injunction and pending any appeal therefrom. This case is remanded to the district court for further proceedings consistent with this court's decision in Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019). VACATED and REMANDED. (mat) (Entered: 08/28/2019)
166 SCHEDULING NOTICE AND ORDER by Judge Jesus G. Bernal. In light of the recent ruling by the Ninth Circuit Court of Appeals, the Court sets a Status Conference for October 7, 2019, at 11:00 a.m. Counsel are ordered to file a Joint Status Report, not to exceed 10 pages in length, no later than September 30, 2019. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (iva) TEXT ONLY ENTRY (Entered: 08/29/2019)
167 STIPULATION for Order Modifying Deadlines for Designation of Expert Witnesses and Rebuttal Expert Witnesses filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Proposed Order)(Quartarolo, Amy) (Entered: 09/13/2019)
168 ORDER by Judge Jesus G. Bernal, Granting Stipulation for Entry of Order Modifying Deadlines for Designation of Expert Witnesses and Rebuttal Expert Witnesses 167 . SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 09/18/2019)
169 STATUS REPORT filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Exhibits A−C)(Quartarolo, Amy) (Entered: 09/30/2019)
172 MINUTES OF Status Conference held before Judge Jesus G. Bernal: It is stipulated and ordered that preliminary injunction on 12/22/17 is hereby dissolved. It was also discussed that an amended complaint will be filed. Defendants may have 30 days to respond to the amended complaint. Court Reporter: Chase Frazier. (twdb) (Entered: 10/17/2019)
170 FIRST AMENDED COMPLAINT against Defendants Ryan D. McCarthy, Richard V. Spencer, Mark T. Esper, Mark A. Milley, Matthew P. Donovan, Kevin McAleenan amending Complaint (Attorney Civil Case Opening),, 1 , filed by Plaintiffs Equality California, Nicolas Talbott, Aiden Stockman, Jane Doe, Tamasyn Reeves, Jaquice Tate, John Does 1−2(Quartarolo, Amy) (Entered: 10/11/2019)
171 Amended INTERVENOR COMPLAINT against Defendants All Defendants, filed by Plaintiff−Intervenor State Of California.(Medley, Amie) (Entered: 10/11/2019)
173 MANDATE of Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 125 , CCA # 18−56539. The judgment of this Court, entered August 26, 2019, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. [See USCA Order 165 VACATED and REMANDED.](mat) (Entered: 10/22/2019)
174 ORDER DISSOLVING THE PRELIMINARY INJUNCTION by Judge Jesus G. Bernal. The Court, having reviewed the parties' Joint Status Report [Docket No. 169] and having discussed with the parties at the October 7, 2019 status conference the agreed upon disposition of Defendants' Motion to Dissolve the Preliminary Injunction [Docket No. 82], ORDERS as follows: 1. As stipulated by the parties, this Courts December 22, 2017 Preliminary Injunction [Docket No. 79] is hereby dissolved. 2. This Order is without prejudice to Plaintiffs' or Plaintiff−Intervenor's ability to bring a new motion seeking preliminary injunctive relief. (es) (Entered: 10/23/2019)
175 STIPULATION for Order Modifying Deadline to Initiate Discovery other than Depositions filed by Plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Proposed

10/30/2019 11/12/2019
11/12/2019 02/28/2020 03/03/2020 04/14/2020 04/21/2020 06/15/2020
07/20/2020

Order)(Quartarolo, Amy) (Entered: 10/29/2019)
176 ORDER by Judge Jesus G. Bernal, Granting Stipulation for Entry of Order Modifying Deadline to Initiate Discovery Other Than Depositions 175 . Deadline to Initiate Discovery Other Than Depositions 1/15/2020. (twdb) (Entered: 10/30/2019)
177 ANSWER to Amended Complaint/Petition, 170 filed by Defendants Matthew P. Donovan, Elaine C. Duke, Joseph F. Dunford, Jr., Mark T. Esper, James N. Mattis, Kevin McAleenan, Ryan D. McCarthy, Mark A. Milley, Richard V. Spencer, Donald J. Trump, Heather A. Wilson.(Attorney Robert Mark Norway added to party Matthew P. Donovan(pty:dft), Attorney Robert Mark Norway added to party Mark T. Esper(pty:dft), Attorney Robert Mark Norway added to party Kevin McAleenan(pty:dft), Attorney Robert Mark Norway added to party Mark A. Milley(pty:dft))(Norway, Robert) (Entered: 11/12/2019)
178 ANSWER to Intervenor Complaint 171 filed by Defendants Matthew P. Donovan, Elaine C. Duke, Joseph F. Dunford, Jr., Mark T. Esper, James N. Mattis, Kevin McAleenan, Ryan D. McCarthy, Mark A. Milley, Richard V. Spencer, Donald J. Trump, Heather A. Wilson.(Norway, Robert) (Entered: 11/12/2019)
179 Joint STIPULATION for Order to suspend case schedule and partially stay case pending resolution of discovery issues in the related Karnoski action filed by plaintiffs Jane Doe, John Does 1−2, Equality California, Tamasyn Reeves, Aiden Stockman, Nicolas Talbott, Jaquice Tate. (Attachments: # 1 Proposed Order)(Quartarolo, Amy) (Entered: 02/28/2020)
180 ORDER by Judge Jesus G. Bernal, Granting Stipulation for Entry of Order Suspending Case Schedule and Partially Staying Case 179 . (Made JS−6. Case Terminated.) (twdb) (Entered: 03/06/2020)
181 Notice of Appearance or Withdrawal of Counsel: for attorney Robert Mark Norway counsel for Defendants Matthew P. Donovan, Elaine C. Duke, Joseph F. Dunford, Jr., Mark T. Esper, James N. Mattis, Kevin McAleenan, Ryan D. McCarthy, Mark A. Milley, Richard V. Spencer, Donald J. Trump, Heather A. Wilson. Robert Mark Norway is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Defendants All Defendants, Mark T. Esper et al.. (Norway, Robert) (Entered: 04/14/2020)
182 Notice of Electronic Filing re Notice of Appearance or Withdrawal of Counsel (G−123),, 181 e−mailed to Scott B Wilkens at swilkens@jenner.com bounced due to No such email box. The primary e−mail address associated with the attorney record has been deleted. Pursuant to Local Rules it is the attorneys obligation to maintain all personal contact information including e−mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ir) TEXT ONLY ENTRY (Entered: 04/21/2020)
183 Notice of Appearance or Withdrawal of Counsel: for attorney Devi M Rao counsel for Amicus Parties American Academy of Family Physicians, American Academy of Nursing, American College of Physicians, American Medical Women's Association, American Nurses Association, Association of Medical School Pediatric Department Chairs, Endocrine Society, GLMA: Health Professionals Advancing LGBT Equality, National Association of Social Workers, Pediatric Endocrine Society, World Professional Association for Transgender Health. Filed by Amici Curiae American Academy of Family Physicians, American Academy of Nursing, American College of Physicians, American Medical Women's Association, American Nurses Association, Association of Medical School Pediatric Department Chairs, Endocrine Society, GLMA: Health Professionals Advancing LGBT Equality, National Association of Social Workers, Pediatric Endocrine Society, and World Professional Association for Transgender Health. (Rao, Devi) (Entered: 06/15/2020)
184 Notice of Appearance or Withdrawal of Counsel: for attorney Chad A Stegeman counsel for Intervenor Plaintiff State Of California. Adding Chad A. Stegeman as counsel of record for State of California for the reason indicated in the G−123 Notice. Filed by Plaintiff−Intervenor State of California. (Attorney Chad A Stegeman added to party State Of California(pty:intvp))(Stegeman, Chad) (Entered: 07/20/2020)

07/20/2020

185 Notice of Appearance or Withdrawal of Counsel: for attorney Chad A Stegeman counsel for Intervenor Plaintiff State Of California. Amie L. Medley is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Plaintiff−Intervenor State of California. (Stegeman, Chad) (Entered: 07/20/2020)

 
 Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 1 of 20 Page ID #:1

1 LATHAM & WATKINS LLP Amy C. Quartarolo (SBN 222144)
2 Aadmamy.qSu.aSrtiaefrfo(loS@BNlw3.c0o2m030) 3 adam.sieff@lw.com
Harrison J. White (SBN 307790) 4 355hSaoruritshoGn.rwahnidteA@vlewn.uceo,mSuite 100 5 Los Angeles, California 90071-1560
Telephone: +1.213.485.1234 6 Facsimile: +1.213.891.8763

7 Attorneys for Plaintiffs

8

Aiden Stockman, Nicolas Talbott, Tamasyn Reeves, Jaquice Tate,

John Does 1-2, Jane Doe, and

9 Equality California

10

UNITED STATES DISTRICT COURT

11

CENTRAL DISTRICT OF CALIFORNIA

12

13

AIDEN STOCKMAN; NICOLAS TALBOTT; TAMASYN REEVES;

14

JAQUICE TATE; JOHN DOES 1-2; JANE DOE; and EQUALITY

15 CALIFORNIA,

16

Plaintiffs,

CASE NO. 17-CV-6516 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

17

v.

18

DONALD J. TRUMP, in his official capacity as President of the United

19

States; JAMES N. MATTIS, in his official capacity as Secretary of

20

Defense; JOSEPH F. DUNFORD, JR., in his official capacity as Chairman of

21

the Joint Chiefs of Staff; RICHARD V. SPENCER, in his official capacity as

22

Secretary of the Navy; RYAN D. MCCARTHY, in his official capacity as

23

Acting Secretary of the Army; HEATHER A. WILSON, in her official

24

capacity as Secretary of the Air Force; and ELAINE C. DUKE, in her official

25

capacity as Acting Secretary of Homeland Security,

26

Defendants.

27

28

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COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 2 of 20 Page ID #:2

1

NATURE OF THE ACTION

2

1. This action, brought on behalf of transgender individuals, seeks to

3 ensure that all qualified Americans have an equal opportunity to serve in the

4 United States military, that transgender individuals are free from arbitrary and

5 invidious discrimination, and that the constitutional rights of transgender

6 individuals to autonomy, privacy, and freedom of expression are respected and

7 protected.

8

2. In June 2016, following an exhaustive multi-year review supported by

9 reams of data, interviews, and analysis, the Department of Defense (“DOD”)

10 announced that it would reverse its prior unconstitutional policy barring openly

11 transgender people from serving in the military, and would implement a policy

12 expressly allowing transgender people to serve openly in the United States armed

13 forces (“June 2016 Policy”). Since that announcement, and in reliance thereon,

14 hundreds of American servicemembers followed protocol and informed their chain

15 of command that they are transgender. These transgender servicemembers have

16 continued to serve without incident. In addition, as a consequence of the DOD’s

17 announced policy, after years of unlawful exclusion, openly transgender persons

18 have believed for the first time that it is possible for them to serve their country in

19 the Armed Forces.

20

3. However, in a burst of Twitter statements on July 26, 2017, Defendant

21 President Donald J. Trump abruptly announced that the United States military

22 would return to discriminating unlawfully against transgender people solely

23 because of their transgender status. By proclaiming that “the United States

24 Government will not accept or allow Transgender individuals to serve in any

25 capacity in the U.S. Military,” President Trump signaled that transgender troops

26 would be barred altogether from serving openly in our Armed Forces.

27

4. On August 25, 2017, Defendant President Trump formalized the

28 government’s policy, directing his co-Defendants as leaders of the DOD and

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COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 3 of 20 Page ID #:3

1 Department of Homeland Security (“DHS,” and together with the DOD, the

2 “Departments”) to reinstate the ban “on military service by transgender individuals

3 that was in place prior to June 2016” (the “August 25 Directive”). Specifically,

4 President Trump directed the Departments (i) to ban the “accession of transgender

5 individuals into military service,” (ii) to “halt all use of DOD or DHS resources to

6 fund sex reassignment surgical procedures for military personnel” except in limited

7 instances, and (iii) to implement a plan to return to the prohibition on military

8 service for transgender people, including those current servicemembers who, in

9 reliance on the June 2016 Policy, came out to their command. See Memorandum

10 Regarding Military Service by Transgender Individuals, -- Fed. Reg. --------

11 (entered Aug. 25, 2017) (publication forthcoming). President Trump’s August 25

12 Directive, which carries the force of law, does not reference any evidence, facts or

13 analysis to support the imposition of this categorical ban.

14

5. Plaintiffs here are (i) Aiden Stockman, Nicolas Talbott, and Tamasyn

15 Reeves, transgender individuals who have taken steps to enlist in the military,

16 (ii) Jaquice Tate and several other openly transgender active servicemembers,

17 proceeding as anonymous plaintiffs, who will be impacted by President Trump’s

18 August 25 Directive, and (iii) Equality California, the nation’s largest statewide

19 lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) civil rights organization.

20

6. The August 25 Directive inflicts serious injuries upon Plaintiffs and

21 Plaintiff EQCA’s members. First, the August 25 Directive expressly forecloses

22 transgender people from acceding into military service. Second, the August 25

23 Directive causes immediate and concrete injury to the current servicemember

24 Plaintiffs, each of whom came out as transgender to their chain of command in

25 reliance on the June 2016 Policy lifting the prior ban. Specifically, the current

26 servicemember Plaintiffs will be subject to involuntary separation beginning

27 March 23, 2018, suspending their reasonable expectation of continued service.

28 Third, the August 25 Directive denies the current servicemember Plaintiffs equal

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COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 4 of 20 Page ID #:4

1 access to full medical care. Fourth, the August 25 Directive chills the speech and

2 expression of each of the Plaintiffs and Plaintiff EQCA’s members.

3

7. Fundamentally, without any rational basis, the August 25 Directive

4 denies Plaintiffs and their members the equal protection of the laws, their right to

5 freedom of expression, and their right to liberty and privacy, in violation of the

6 First and Fifth Amendments to the United States Constitution. Accordingly,

7 Plaintiffs seek a declaration that the August 25 Directive is unconstitutional, and an

8 injunction preventing Defendants from implementing and enforcing it.

9

JURISDICTION AND VENUE

10

8. This court has jurisdiction over the claims pursuant to 28 U.S.C.

11 Sections 1331 and 1343. This Court has further remedial authority under the

12 Declaratory Judgment Act, 28 U.S.C. Sections 2201 and 2202 et seq.

13

9. Venue is proper in the Central District of California under 28 U.S.C.

14 Section 1391(e) because Plaintiffs reside in this judicial district and a substantial

15 part of the events giving rise to this action occurred in this District.

16

PARTIES

17

10. Plaintiff Aiden Stockman is a transgender man who wants to serve his

18 country through military service, and has taken steps to do so. Mr. Stockman, 20,

19 was raised and currently resides in California. Mr. Stockman has long been

20 interested in serving his country and intended to join the Air Force. As a young

21 man, Mr. Stockman spoke with friends and neighbors who were stationed at

22 nearby Twenty-Nine Palms Air Force Base to discuss what it is like to serve in the

23 Air Force. Mr. Stockman came out to his family as transgender in the eighth

24 grade. At or about that time, he began seeking medical advice related to gender

25 transition. In June 2014, when he was in the eleventh grade, Mr. Stockman began

26 hormone replacement therapy (“HRT”). Later that year, Mr. Stockman took the

27 Armed Services Vocational Aptitude Battery (“ASVAB”) test consistent with his

28 intention of acceding into the military. He hoped to join the Air Force following

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COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 5 of 20 Page ID #:5

1 his graduation from high school, but wanted to complete a double-mastectomy

2 (i.e., “top surgery”) first. After finding a doctor, Mr. Stockman ultimately made

3 plans to undergo top surgery, planning to enlist thereafter. The June 2016 Policy

4 permitting open service by transgender people gave Mr. Stockman comfort that he

5 would be able to pursue a career of military service. However, upon learning of

6 the August 25 Directive, Mr. Stockman felt crushed, as he will no longer be able to

7 pursue his dream of serving his country in the Air Force.

8

11. Plaintiff Nicolas Talbott, 23, is a transgender man currently residing

9 in Ohio. After graduating from college with a degree in sociology and

10 criminology, he planned to enlist in the military in pursuit of a career in counter-

11 terrorism. Prior to issuance of the June 2016 Policy, Mr. Talbott contacted military

12 recruiters on several occasions to express his interest in serving his country, but

13 each time he was informed that regulations prohibited his service because he is

14 transgender. After the June 2016 Policy was announced, Mr. Talbott found a

15 recruiter for the Air Force National Guard who advised that he would help him

16 enlist. Mr. Talbott met with the recruiter in December 2016 and filled out

17 paperwork confirming his interest in acceding into the military. The recruiter

18 asked Mr. Talbott to obtain a letter from his doctor confirming that being

19 transgender did not have any adverse effects on his life or his ability to perform

20 military-related duties. The recruiter advised that the next step in the process

21 would be to meet with the regional Military Entrance Processing Station (“MEPS”)

22 for a physical exam and to take the ASVAB test, but later advised that MEPS

23 would not begin processing for transgender enlistees until mid-2017. Mr. Talbott

24 scheduled his appointment with his doctor, began studying practice ASVAB

25 exams, and was training regularly for the physical exam, all in anticipation of

26 enlisting in 2017. However, when President Trump tweeted about the re-

27 enactment of the ban on transgender military service and then issued the August 25

28 / / /

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COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 6 of 20 Page ID #:6

1 Directive, Mr. Talbott was devastated and knew that he would no longer be able to

2 pursue a military career.

3

12. Plaintiff Tamasyn Reeves is a transgender woman currently residing

4 in California. Ms. Reeves, 29, has wanted to join the Navy since she was 17. Her

5 family has a tradition of service in the military: her grandfather served in the Navy

6 during the Korean War, two of her uncles served in the Air Force, and two of her

7 cousins served in the Navy. Ms. Reeves first spoke to a recruiter at age 21. The

8 recruiter told Ms. Reeves that she was not eligible to enlist because of the

9 military’s then-policy banning LGBTQ individuals from military service. At age

10 23, Ms. Reeves began HRT, but continued to be barred from enlistment.

11 Following issuance of the June 2016 Policy, Ms. Reeves decided to enlist as soon

12 as the final procedures for accession of transgender individuals were

13 solidified. The abrupt reversal in the August 25 Directive prevents her accession

14 into the military, despite her longstanding desire to do so.

15

13. Plaintiff Jaquice Tate is a transgender man currently serving in the

16 Army. He enlisted in 2008 because he wanted a career in which he could take

17 pride. He hopes to serve a twenty year term. Mr. Tate has served domestically and

18 internationally, including a deployment to Iraq. Currently, he is a Military Police

19 Officer and he has served on drug suppression teams. Each of his command

20 leaders awarded him a Colonel Coin of Excellence and he has received numerous

21 Army Achievement Medals. The Army has approved his application to become a

22 Drill Sergeant. In reliance on the June 2016 Policy, Mr. Tate informed his chain of

23 command of his true gender. His chain of command has supported him throughout

24 his process of medical transition. However, since issuance of the August 25

25 Directive, Mr. Tate fears that he will lose his job and retirement opportunities after

26 his nearly ten years of dedicated service. Mr. Tate and his wife had planned to

27 begin the process of having children next year, but the financial uncertainty caused

28 / / /

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COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 7 of 20 Page ID #:7

1 by the August 25 Directive is forcing them to place their future family on hold

2 indefinitely.

3

14. Plaintiffs John Doe 1-2 and Jane Doe are active duty servicemembers

4 who serve openly as transgender persons. They proceed under pseudonyms for

5 fear of retribution.

6

15. Plaintiff John Doe 1 is a transgender man who has served in the

7 United States Air Force since 2012. John Doe 1 comes from a military family; his

8 father served in the military for 30 years. John Doe 1 has plans make a career out

9 of military service as well. John Doe 1 currently is stationed and resides in

10 California. In reliance on the June 2016 Policy permitting open service by

11 transgender servicemembers, John Doe 1 felt that the military had become an

12 “open space” to come out. In April 2017, John Doe 1 came out to his chain of

13 command. John Doe 1 subsequently met with Air Force medical doctors and

14 psychologists to discuss gender transition, and received a diagnosis of gender

15 dysphoria. John Doe 1 is awaiting a meeting with his medical team and

16 commander to discuss his transition plan. John Doe 1 recently was awarded

17 Academic Achievement and Distinguished Graduate distinctions from the Airmen

18 Leadership School, and received a “Must Promote” performance report. Although

19 his colleagues and chain of command have been supportive of John Doe 1 since he

20 came out, John Doe 1 believes that the August 25 Directive will preclude him from

21 obtaining promotions and further advancing his career in the Air Force.

22

16. Plaintiff John Doe 2 is a transgender man currently serving in the

23 Army. John Doe 2 voluntarily enlisted with the Army to serve his country, to

24 achieve financial security, and to honor his family’s tradition of service. His

25 technical expertise pertains to the operations, diagnostics, and maintenance of the

26 multichannel communications systems necessary for the Army to make real-time

27 strategic and tactical decisions. His position requires Secret-level Security

28 Clearance. John Doe 2 earned an early promotion wavier to become an Army

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COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 8 of 20 Page ID #:8

1 Specialist and was awarded two Colonel Coins of Excellence. In reliance on the

2 June 2016 Policy, he came out as transgender to his unit, his chain of command,

3 and his medical providers. John Doe 2 has begun medical transition to his true

4 gender, and has received the support of his chain of command and his unit. John

5 Doe 2’s current term of enlistment ends in 2020. He had hoped to become a

6 twenty-year veteran, but under the shadow of the August 25 Directive, John Doe 2

7 fears that his future in the military, and his ability to support his family, is in

8 jeopardy.

9

17. Plaintiff Jane Doe is a transgender woman currently serving in the Air

10 Force. In the seven years since she enlisted, Jane Doe has been deployed twice.

11 She currently is stationed abroad as a Staff Sergeant. Jane Doe joined the military

12 in hopes of serving her country, achieving financial stability and garnering

13 personal skills such as discipline, self-respect and service of others. After the ban

14 on transgender service was lifted by the June 2016 Policy, Jane Doe came out to

15 her chain of command. She found her military colleagues to be supportive. Jane

16 Doe carefully reviewed the guidance and policies issued by the DOD, and after

17 meeting with her doctors, made the decision to pursue transition-related medical

18 care. While she has received early promotions, two achievement medals and one

19 commendation medal, she now fears that the August 25 Directive compromises her

20 ability to achieve promotion, jeopardizes her medical benefits and ultimately

21 forecloses her ability to continue her career in the military.

22

18. Plaintiff Equality California (“EQCA”) is an I.R.S. 501(c)(4)

23 organization dedicated to LGBTQ civil rights. Specifically, EQCA is dedicated to

24 combatting discrimination and injustice on the basis of sexual orientation and

25 gender identity, and to protecting the fundamental rights of those within the

26 LGBTQ community and the vulnerable communities of which they are a part. Its

27 more than 500,000 members include transgender individuals in active military

28 service, transgender military veterans, and transgender individuals who have taken

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COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 9 of 20 Page ID #:9

1 steps to serve and ultimately intend to pursue long-term careers in the United

2 States Armed Forces. EQCA’s membership also includes family members and

3 dependents of openly transgender individuals, each of whom share an interest in

4 ensuring that all qualified individuals wishing to serve their country through

5 military service are permitted to do so regardless of their gender identity.

6

19. Defendant Donald J. Trump is President of the United States and

7 Commander in Chief of the Armed Forces of the United States. On July 26, 2017,

8 President Trump announced via Twitter that transgender people would not be

9 permitted to serve “in any capacity in the U.S. military.” On August 25, 2017, he

10 delivered an official executive directive to the Departments concerning “Military

11 Service by Transgender Individuals.” The August 25 Directive, which is to be

12 formally published in the Federal Register, unlawfully bans transgender persons

13 from enlisting or serving openly in the military and prohibits the military from

14 paying for certain forms of healthcare related to gender transition.

15

20. Defendant James N. Mattis is the United States Secretary Defense.

16 Secretary Mattis directs the Department of Defense, which has been charged with

17 execution and implementation of the President’s unlawful August 25 Directive.

18

21. Defendant Joseph F. Dunford, Jr. is a United States Marine Corps

19 General and serves as the current Chairman of the Joint Chiefs of Staff. In

20 conjunction with co-defendants, General Dunford, Jr. has been charged with

21 execution and implementation of the President’s unlawful August 25 Directive.

22

22. Defendant Richard V. Spencer is the United States Secretary of the

23 Navy. Secretary Spencer directs the Department of the Navy and the United States

24 Marine Corps, which have been charged with execution and implementation of the

25 President’s unlawful August 25 Directive.

26

23. Defendant Ryan D. McCarthy is the Acting United States Secretary of

27 the Army. Secretary McCarthy directs the Department of the Army, which has

28 / / /

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COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 10 of 20 Page ID #:10

1 been charged with execution and implementation of the President’s unlawful

2 August 25 Directive.

3

24. Defendant Heather A. Wilson is the United States Secretary of the Air

4 Force. She directs the Department of the Air Force, which has been charged with

5 execution and implementation of the President’s unlawful August 25 Directive.

6

25. Defendant Elaine C. Duke is the Acting United States Secretary of

7 Homeland Security. She directs the DHS, which is responsible for the

8 administration and operation of the United States Coast Guard, and which has been

9 charged with execution and implementation of the President’s unlawful August 25

10 Directive.

11

FACTUAL BACKGROUND

12 A. 13
14

Following an Exhaustive Review in 2015-2016, the DOD Concluded that Open Service by Transgender People Best Served the Interests of U.S. Armed Forces 26. In May 2014, then-Secretary of Defense Chuck Hagel directed the

15 DOD to review whether transgender people should be permitted to serve openly in

16 the U.S. armed forces.

17

27. In August 2014, the DOD amended its physical disability policy to

18 remove references to mandatory exclusion based on “sexual gender and identity

19 disorders,” and issued a new regulation instructing each branch of the armed forces

20 to assess whether there was any justification to maintain a ban on service by

21 openly transgender persons.

22

28. In issuing this regulation, Secretary Hagel stated that “every qualified

23 American who wants to serve our country should have an opportunity to do so if

24 they fit the qualifications and can do it.”

25

29. Secretary Hagel was succeeded as Secretary of Defense by Secretary

26 Ashton B. Carter. In July 2015, Secretary Carter announced that the military

27 would comprehensively analyze whether there was any justification to maintain the

28 ban on service by openly transgender persons. Accordingly, Secretary Carter

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Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 11 of 20 Page ID #:11

1 created a working group to address this issue including the Armed Services, the

2 Joint Chiefs of Staff, the service secretaries, and personnel, training, readiness, and

3 medical specialists from across the DOD. The lengthy and comprehensive review

4 process that followed included an examination of all available data, including but

5 not limited to existing studies and research and input from transgender service

6 members, commanding officers who supervised transgender service members,

7 military readiness and personnel experts, outside expert groups, and medical

8 professionals. The review process also included a careful analysis of the eighteen

9 other countries that permit military service by openly transgender people. Doctors,

10 employers, and insurance companies were consulted regarding the provision of

11 medical care to transgender people.

12

30. The DOD also commissioned the RAND Corporation—a defense

13 consultancy formed after World War II to connect military planning with research

14 and development decisions, and which now operates as an independent think tank

15 financed by the U.S. government—to determine the impact of permitting

16 transgender servicemembers to serve openly. The study titled Assessing the

17 Implications of Allowing Transgender Personnel to Serve Openly (the “RAND

18 Study”) ultimately concluded that allowing transgender people to serve openly

19 would cost little and have no significant impact on unit readiness. As for the

20 potential impact on healthcare costs, the RAND Study concluded that health care

21 costs for transgender servicemembers, including costs related to gender transition-

22 related treatment, would “have little impact on and represents an exceedingly small

23 proportion of [DOD’s] overall health care expenditures.”

24

31. Based on the results of this comprehensive review process, on June

25 30, 2016, the DOD announced its conclusion that open transgender service would

26 best serve the military’s interests in recruiting and retaining the most highly

27 qualified personnel. In issuing the June 2016 Policy, Secretary Carter explained

28 that this conclusion was based on a number of considerations, including inter alia:

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COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 12 of 20 Page ID #:12

1 (a) the fact that thousands of transgender people already serve, and that the military

2 has already invested hundreds of millions of dollars to train them collectively;

3 (b) that the military benefits by retaining individuals who are already trained and

4 who have already proven themselves; (c) the need to provide both transgender

5 servicemembers and their commanders with clear guidance on questions such as

6 deployment and medical treatment; and (d) the principle that “Americans who want

7 to serve and can meet our standards should be afforded the opportunity to compete

8 to do so.”

9

32. Secretary Carter announced that “[e]ffective immediately, transgender

10 Americans may serve openly. They can no longer be discharged or otherwise

11 separated from the military just for being transgender.” This unequivocal

12 statement was accompanied by the formal issuance of Directive-Type

13 Memorandum 16-005, Military Service of Transgender Service Members, which

14 lifted the ban on military service and accession by openly transgender people.

15 Directive-Type Memorandum 16-005 sets forth the DOD’s conclusion, based on

16 thorough review and analysis, that:

17

The defense of the Nation requires a well-trained, allvolunteer force comprised of Active and Reserve

18

Component Service members ready to deploy worldwide on combat and operational missions. The policy of the

19

Department of Defense is that service in the United States military should be open to all who can meet the

20

rigorous standards for military service and readiness. Consistent with the policies and procedures set forth in

21

this memorandum, transgender individuals shall be allowed to serve in the military. These policies and

22

procedures are premised on my conclusion that open service by transgender Service members while being

23

subject to the same standards and procedures as other members with regard to their medical fitness for duty,

24

physical fitness, uniform and grooming, deployability, and retention, is consistent with military readiness and

25

with strength through diversity.

26 In accordance with Directive-Type Memorandum 16-005, transgender people were

27 to be permitted to enlist in the U.S. military and openly serve beginning on July 1,

28 2017.

ATTORNEYS AT LAW LOS ANGELES

11

COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 13 of 20 Page ID #:13

1

33. In furtherance of its conclusions and in an effort to consistently and

2 effectively implement this change in policy, the DOD took the following actions:

3

• In September 2016, the DOD issued an implementation handbook

4

entitled Transgender Service in the United States Military setting forth

5

guidance and instructions to both military servicemembers and

6

commanders regarding how to understand and implement the new

7

policies enabling open service of transgender servicemembers.

8

• On October 1, 2016, the Office of the Undersecretary of Defense for

9

Personnel and Readiness issued DOD Instruction 1300.28 entitled In-

10

Service Transition for Transgender Service Members. The instruction set

11

forth further guidance to ensure open service by transgender

12

servicemembers, including details regarding revisions to medical

13

treatment provisions.

14

• The Acting Assistant Secretary of Defense for Health Affairs issued a

15

memorandum entitled Guidance for Treatment of Gender Dysphoria for

16

Active and Reserve Component Service Members.

17

• On November 29, 2016, the DOD revised Directive 1020.02E, Diversity

18

Management and Equal Opportunity in the DOD, expressly to prohibit

19

discrimination and harassment on the basis of gender identity.

20

34. In line with the guidance issued by the DOD, the United States Coast

21 Guard adopted similar policies and procedures for service by transgender

22 servicemembers.

23 B. 24

Defendants Institute an Arbitrary Ban on Transgender Servicemembers 35. In a series of statements released via Twitter on July 26, 2017,

25 Defendant President Donald J. Trump abruptly announced that the United States

26 military would return to banning military service by transgender people.

27

36. He tweeted: “After consultation with my Generals and military

28 experts, please be advised that the United States Government will not accept or

ATTORNEYS AT LAW LOS ANGELES

12

COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 14 of 20 Page ID #:14

1 allow Transgender individuals to serve in any capacity in the U.S. Military. Our

2 military must be focused on decisive and overwhelming victory and cannot be

3 burdened with the tremendous medical costs and disruption that transgender in the

4 military would entail. Thank you.”

5

37. This July 26, 2017 announcement was rendered without any

6 significant study or analysis and lacks a rational basis.

7

38. Shortly after the Twitter announcement, members of both major

8 political parties criticized this abrupt change in policy, and fifty six former generals

9 and admirals issued a public statement denouncing the new policy.

10

39. Less than one month following his initial Twitter statement,

11 Defendant President Trump issued the August 25 Directive formalizing the

12 administration’s policy. The August 25 Directive orders co-Defendants (i) to ban

13 the “accession of transgender individuals into military service,” (ii) to “halt all use

14 of DOD or DHS resources to fund sex reassignment surgical procedures for

15 military personnel” except in limited instances, and (iii) to implement a plan to

16 return to the prohibition on military service for transgender people, including those

17 current servicemembers who, in reliance on the June 2016 Policy, came out to their

18 command.

19

40. Similar to the July 26, 2017 Twitter announcement, the August 25

20 Directive was rendered without any significant study or analysis and lacks a

21 rational basis.

22

41. The stated bases offered in support of Defendants’ August 25

23 Directive are pretextual, arbitrary, capricious, and unsupported by facts, evidence,

24 or analysis. Indeed, the DOD previously concluded in Directive Type

25 Memorandum 16-005, after more than a year of exhaustive analysis, that “open

26 service by transgender Service members . . . is consistent with military readiness,”

27 as well as the “defense of the Nation” generally. Since issuance of Directive Type

28 Memorandum 16-005, transgender people have been serving openly without

ATTORNEYS AT LAW LOS ANGELES

13

COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 15 of 20 Page ID #:15

1 incident or any negative impact upon military readiness, lethality, unit cohesion, or

2 the national defense generally.

3

42. The government-commissioned RAND Report concluded that the

4 “costs of gender transition related healthcare treatment are relatively low,” and

5 amount to possible increases of only between “$2.4 million and $8.4 million

6 annually, representing a 0.04% to 0.13% increase in active-component healthcare

7 expenditures.”

8

43. In contrast, separating and replacing currently serving transgender

9 service members would be costly and cause disruption, and also would undermine

10 unit cohesion, respect for military authority, and morale. Research from the Naval

11 Postgraduate School published by the Palm Center in August 2017 (the “Palm

12 Center Report”) concludes that the “financial cost of fully implementing President

13 Trump’s ban on transgender servicemembers would be $960 million,” assuming

14 the military acted to expel the estimated 12,800 transgender servicemembers and

15 needed to replace them. Even assuming the military acted to expel and replace

16 only 1,320 transgender servicemembers, which was the RAND Report’s lowest

17 estimate of the total number of active transgender servicemembers, the Palm

18 Center Report indicates the financial cost of fully implementing President Trump’s

19 ban would still be at least $99 million.

20

44. The August 25 Directive applies to currently serving open transgender

21 servicemembers, including Plaintiffs, who have not yet undergone gender

22 reassignment surgery, but have openly expressed their gender identity, as well as to

23 currently serving transgender servicemembers who have not yet come out to their

24 chain of command, but wish to do so.

25

45. The August 25 Directive bars currently serving transgender

26 servicemembers, including Plaintiffs, from re-enlisting.

27

46. The August 25 Directive bars currently serving transgender

28 servicemembers, including Plaintiffs, from earning and obtaining promotions in

ATTORNEYS AT LAW LOS ANGELES

14

COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 16 of 20 Page ID #:16

1 rank, or from attaining the service record required to qualify for military retirement

2 benefits.

3

47. The August 25 Directive bars currently serving transgender

4 servicemembers, including Plaintiffs, from receiving equal access to full medical

5 care.

6

48. The August 25 Directive bars transgender people who wish to pursue

7 careers in the Armed Forces and are able to meet the standards for military service,

8 including Plaintiffs, from acceding into the military.

9

FIRST CLAIM FOR RELIEF

10

Fifth Amendment – Equal Protection

11

(against all Defendants)

12

49. Plaintiffs re-allege and incorporate by reference the preceding

13 allegations in this Complaint as if fully set forth herein.

14

50. The Due Process Clause of the Fifth Amendment prohibits the federal

15 government from denying persons the equal protection of the laws.

16 51. Defendants’ August 25 Directive excluding transgender persons from

17 eligible military service discriminates against Plaintiffs and Plaintiff’s members

18 based on their sex and transgender status, without lawful justification, in violation

19 of the Equal Protection component of the Due Process Clause of the Fifth

20 Amendment.

21

52. Defendants’ exclusion of transgender persons from military service

22 lacks a rational basis, is arbitrary, and cannot be justified by any government

23 interest.

24

53. Defendants’ August 25 Directive denying equal health benefits to

25 transgender persons also discriminates against Plaintiffs and Plaintiff’s members

26 based on their sex and transgender status, without lawful justification, in violation

27 of the Equal Protection component of the Due Process Clause of the Fifth

28 Amendment.

ATTORNEYS AT LAW LOS ANGELES

15

COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 17 of 20 Page ID #:17

1

54. Defendants’ action to deny transgender persons equal health benefits

2 lacks a rational basis, is arbitrary, and cannot be justified by any government

3 interest.

4

55. Defendants’ above-described discrimination against transgender

5 persons—a discrete and insular group that lacks the power to protect its rights

6 through the legislative process, and one that has suffered a history of targeted

7 discrimination and exclusion—is not narrowly tailored to advance any important or

8 compelling government interest.

9

56. As a result of Defendants’ implementation and enforcement of the

10 August 25 Directive, Plaintiffs and Plaintiff’s members have suffered injuries and

11 will suffer further irreparable harm to their constitutional rights under the Fifth

12 Amendment if the directive is not declared unconstitutional and enjoined.

13

57. Plaintiffs have no adequate remedy at law.

14

SECOND CLAIM FOR RELIEF

15

Fifth Amendment – Due Process

16

(against all Defendants)

17

58. Plaintiffs re-allege and incorporate by reference the preceding

18 allegations in this Complaint as if fully set forth herein.

19

59. The Due Process Clause of the Fifth Amendment prohibits the federal

20 government from depriving individuals of their property or other interests without

21 due process of law.

22

60. The Due Process Clause of the Fifth Amendment requires, at a

23 minimum, that government action have some rational basis before depriving any

24 person of his or her property or liberty interests.

25

61. Defendants’ June 2016 Policy permitting transgender persons to serve

26 openly in the military, together with reliance by Plaintiffs and Plaintiff’s members

27 on that policy, created a protected interest in their ability to continue serving in the

28 military as openly transgender persons.

ATTORNEYS AT LAW LOS ANGELES

16

COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 18 of 20 Page ID #:18

1

62. Defendants’ August 25 Directive will deprive Plaintiffs and Plaintiff’s

2 members of their protected interests in continued military service as openly

3 transgender persons.

4

63. Defendants’ deprivation of Plaintiffs’ and Plaintiff’s members’

5 protected interests in continued military service as openly transgender persons is

6 arbitrary and without any rational basis.

7

64. As a result of Defendants’ implementation and enforcement of the

8 August 25 Directive, Plaintiffs and Plaintiff’s members have suffered injuries and

9 will suffer further irreparable harm to their constitutional rights under the Fifth

10 Amendment if the directive is not declared unconstitutional and enjoined.

11

65. Plaintiffs have no adequate remedy at law.

12

THIRD CLAIM FOR RELIEF

13

Fifth Amendment – Right to Privacy

14

(against all Defendants)

15

66. Plaintiffs re-allege and incorporate by reference the preceding

16 allegations in this Complaint as if fully set forth herein.

17

67. The Due Process Clause of the Fifth Amendment grants Plaintiffs and

18 Plaintiff’s members constitutional liberties and a fundamental right to privacy that

19 encompasses and protects Plaintiffs’ and Plaintiff’s members’ right to self-

20 identification and self-determination as transgender individuals who live, form

21 intimate relationships, work, and pursue happiness and meaning as the gender, or

22 non-gender, with which they identify.

23

68. The Due Process Clause of the Fifth Amendment requires, at a

24 minimum, that government action have some rational basis before depriving any

25 person of their liberty interests.

26

69. Defendants’ August 25 Directive impermissibly burdens Plaintiffs’

27 and Plaintiff’s members’ fundamental liberty to live consistently with their gender

28 / / /

ATTORNEYS AT LAW LOS ANGELES

17

COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 19 of 20 Page ID #:19

1 identity, and unlawfully impinges upon Plaintiffs’ privacy by penalizing and

2 stigmatizing them for expressing a fundamental aspect of their personal identity.

3

70. Defendants’ August 25 Directive to exclude transgender persons from

4 service in and accession into the military is arbitrary and lacks any rational basis.

5

71. As a result of Defendants’ implementation and enforcement of the

6 August 25 Directive, Plaintiffs and Plaintiff EQCA’s members have suffered

7 injuries and will suffer further irreparable harm to their constitutional rights under

8 the Fifth Amendment if the directive is not declared unconstitutional and enjoined.

9

72. Plaintiffs have no adequate remedy at law.

10

FOURTH CLAIM FOR RELIEF

11

First Amendment – Retaliation for Free Speech & Expression

12

(against all Defendants)

13

73. Plaintiffs re-allege and incorporate by reference the preceding

14 allegations in this Complaint as if fully set forth herein.

15

74. The First Amendment grants Plaintiffs the constitutional right to

16 freedom of speech and expression.

17

75. By banning military service by transgender people, Defendants’

18 August 25 Directive violates Plaintiffs’ and Plaintiff’s members’ rights of free

19 speech and expression under the First Amendment by impermissibly restricting,

20 punishing, and chilling all public and private speech that would tend to identify

21 Plaintiffs and Plaintiff’s members as transgender people. The August 25 Directive

22 impermissibly burdens such speech on the basis of the content and viewpoint of

23 such speech.

24

76. As a result of Defendants’ implementation and enforcement of the

25 August 25 Directive, Plaintiffs and Plaintiff’s members have suffered injuries and

26 will suffer further irreparable harm to their constitutional rights under the First

27 Amendment if the directive is not declared unconstitutional and enjoined.

28

77. Plaintiffs have no adequate remedy at law.

ATTORNEYS AT LAW LOS ANGELES

18

COMPLAINT

Case 5:17-cv-01799-JGB-KK Document 1 Filed 09/05/17 Page 20 of 20 Page ID #:20

1

PRAYER FOR RELIEF

2

WHEREFORE Plaintiffs pray for judgment on their Complaint as follows:

3

1. That this Court find and declare that Defendants’ August 25 Directive

4

to exclude transgender people from federal military service, ban the

5

accession of transgender people into the U.S. military, and prohibit

6

the funding of sex reassignment surgical procedures as part of health

7

care for transgender servicemembers is unconstitutional;

8

2. That Defendants, and their officers, agents, servants, employees, and

9

attorneys, and those persons in active concert or participation with

10

them, preliminarily and permanently be enjoined from enforcing the

11

August 25 Directive to exclude transgender people from serving or

12

enlisting in the military or to preclude transgender servicemembers

13

from access to full medical care, including gender reassignment

14

treatment;

15

3. That Plaintiffs be awarded their costs and reasonable attorneys’ fees;

16

and

17

4. For such other relief as the Court may deem just and proper.

18

19 Dated: September 5, 2017

Respectfully submitted,

20

LATHAM & WATKINS LLP

21

Amy C. Quartarolo Adam S. Sieff

22

Harrison J. White

23

By /s/ Amy C. Quartarolo

24

Amy C. Quartarolo

25

Attorneys for Plaintiffs Aiden Stockman,

Nicolas Talbott, Tamasyn Reeves, Jaquice

26

Tate, John Does 1-2, Jane Doe, and Equality California

27

28

ATTORNEYS AT LAW LOS ANGELES

19

COMPLAINT

 
 Case 5:17-cv-01799-JGB-KK Document 15 Filed 10/02/17 Page 1 of 44 Page ID #:97

1 LATHAM & WATKINS LLP

Marvin S. Putnam (SBN 212839)

2

AmmyarCv.inQ.puuatrntaarmol@o l(wS.BcoNm222144)

3

amy.quartarolo@lw.com

Adam S. Sieff (SBN 302030)

4

Haardriasmon.sJie. fWf@hliwte.c(oSmBN 307790)

5 355 ShoaurtrhisGonra.wndhiAtev@enlwue.c,oSmuite 100

6 Los Angeles, California 90071-1560

Telephone: +1.213.485.1234

7 Facsimile: +1.213.891.8763

8

National Center for Lesbian Rights Shannon P. Minter (SBN 168907)

9 AsmmyinWterh@elanncl(rSigBhNts.2o1rg55675)

10

awhelan@nclrights.org 870 Market Street, Suite 360

11

San Francisco, CA 94102 Telephone: +1.415.392.6257

12 Facsimile: +1.415.392.8442

GLBTQ Legal Advocates & Defenders

13 Jennifer Levi (pro hac vice forthcoming)

14 Mjlaervyi@L.gBlaodn.oaurgto (pro hac vice forthcoming)

mbonauto@glad.org 15 30 Winter Street, Suite 800
Boston, MA 02108 16 Telephone: +1.617.426.1350
Facsimile: +1.617.426.3594 17

Attorneys for Plaintiffs Aiden Stockman, Nicolas 18 Talbott, Tamasyn Reeves, Jaquice Tate, John

19 Does 1-2, Jane Doe, and Equality California

20

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

21

22

AIDEN STOCKMAN; NICOLAS TALBOTT; TAMASYN REEVES;

23

JAQUICE TATE; JOHN DOES 1-2; JANE DOE; and EQUALITY

24 CALIFORNIA,

25

Plaintiffs,

26

v.

27 DONALD J. TRUMP, et al.

28

Defendants.

CASE NO. 5:17-CV-01799-JGB-KK

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Hearing Date: Time: Courtroom:

October 30, 2017 9:00 a.m. 1

ATTORNEYS AT LAW LOS ANGELES

MOTION FOR PRELIMINARY INJUNCTION

Case 5:17-cv-01799-JGB-KK Document 15 Filed 10/02/17 Page 2 of 44 Page ID #:98

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that at 9:00 a.m. on October 30, 2017, or as

3 soon thereafter as possible, in Courtroom 1 of the above-referenced court located at

4 the George E. Brown, Jr. Federal Building and United States Courthouse, 3470

5 Twelfth Street, Riverside, CA 92501-3801, Plaintiffs Aiden Stockman, Nicolas

6 Talbott, Tamasyn Reeves, Jaquice Tate, John Does 1-2, Jane Doe, and Equality

7 California will, and hereby do, move this Court to grant a preliminary injunction

8 prohibiting Defendants from implementing the ban on military service by

9 transgender individuals, as expressly directed by President Donald J. Trump on

10 August 25, 2017.

11

The Motion is based on this Notice of Motion and Motion; the

12 accompanying Memorandum of Points and Authorities; the supporting

13 declarations; all pleadings and papers filed in this action; and such additional

14 papers, evidence, and argument as may be presented at or in connection with the

15 hearing.

16 Dated: October 2, 2017

Respectfully submitted,

17

LATHAM & WATKINS LLP

18

Marvin S. Putnam Amy C. Quartarolo

19

Adam S. Sieff Harrison J. White

20

21

By /s/ Amy C. Quartarolo Amy C. Quartarolo

22

Attorneys for Plaintiffs Aiden Stockman,

23

Nicolas Talbott, Tamasyn Reeves, Jaquice

Tate, John Does 1-2, Jane Doe, and

24

Equality California

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

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MOTION FOR PRELIMINARY INJUNCTION

Case 5:17-cv-01799-JGB-KK Document 15 Filed 10/02/17 Page 3 of 44 Page ID #:99

1 2 3 I. 4 II. 5 6 7 8 III. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 IV. 27 28

TABLE OF CONTENTS
Page INTRODUCTION.......................................................................................... 1 FACTUAL BACKGROUND ........................................................................ 2 A. The Open Service Policy ..................................................................... 2 B. President Trump’s Reversal of the Open Service Policy..................... 6 C. Plaintiffs ............................................................................................... 7 ARGUMENT ............................................................................................... 11 A. Plaintiffs Likely Will Succeed on the Merits..................................... 11
1. The Ban on Transgender Military Service Violates Equal Protection....................................................................... 11 a. A Ban on Transgender Military Service Warrants Strict Scrutiny Because It Discriminates Based on a Suspect Classification. ................................................................ 12 b. The Ban Also Warrants Heightened Scrutiny Because It Discriminates Based on Sex. ....................... 14 c. The Ban Cannot Satisfy Any Level of Review. .......................................................................... 15
2. The Ban Violates Plaintiffs’ Right to Due Process. ................ 22 a. The Ban Violates Plaintiffs’ Fundamental Right to Personal Autonomy. ........................................ 22 b. The Ban Impermissibly and Retroactively Punishes Conduct the Government Induced. ................ 25
3. The Ban Violates Plaintiffs’ First Amendment Rights. ...................................................................................... 27
B. Absent an Injunction, Plaintiffs Will Suffer Irreparable Harm................................................................................................... 30
C. An Injunction is in the Public Interest and the Balance of Hardships Tips Sharply in Plaintiffs’ Favor. ..................................... 32
CONCLUSION ............................................................................................ 35

ATTORNEYS AT LAW LOS ANGELES

ii

MOTION FOR PRELIMINARY INJUNCTION

Case 5:17-cv-01799-JGB-KK Document 15 Filed 10/02/17 Page 4 of 44 Page ID #:100

1 2 3 Cases

TABLE OF AUTHORITIES

Page(s)

4 Adkins v. City of New York, 5 143 F. Supp. 3d 134 (S.D.N.Y. 2015) .......................................................... 13, 14

6 Alliance for the Wild Rockies v. Cotrell,

7

632 F.3d 1127 (9th Cir. 2011) ............................................................................ 11

8 Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053 (9th Cir. 2014) .......................................................... 17, 30, 31, 32
9

10

Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986) ........................................................................................... 25

11

12

Bd. of Educ. of Highland Local Sch. Dist. v. U.S. Dep’t of Educ., 208 F. Supp. 3d 850 (S.D. Ohio 2016)............................................................... 13

13 Bd. of Trs. Of Univ. of Ala. v. Garrett, 14 531 U.S. 356 (2001) ........................................................................................... 12

15 Bowen v. Gilliard, 16 483 U.S. 587 (1987) ........................................................................................... 12

17 Chalk v. U.S. Dist. Court Cent. Dist. Of Cal., 18 840 F.2d 701 (9th Cir. 1988) .............................................................................. 31

19 City of Cleburne v. Cleburne Living Ctr.,

20

473 U.S. 432 (1985) ......................................................................... 12, 16, 18, 25

21

Cooney v. Dalton, 877 F. Supp. 508 (D. Haw. 1995) ...................................................................... 31

22

23

Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788 (1985) ........................................................................................... 28

24 Cox v. Louisiana, 25 379 U.S. 559 (1965) ........................................................................................... 26

26 Crawford v. Cushman, 27 531 F.2d 1114 (2d Cir. 1976) ............................................................................. 20

28

ATTORNEYS AT LAW LOS ANGELES

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MOTION FOR PRELIMINARY INJUNCTION

Case 5:17-cv-01799-JGB-KK Document 15 Filed 10/02/17 Page 5 of 44 Page ID #:101

1 Cupolo v. Bay Area Rapid Transit, 2 5 F. Supp. 2d 1078 (N.D. Cal. 1997).................................................................. 31

3 Diaz v. Brewer,

4

656 F.3d 1008 (9th Cir. 2011) ...................................................................... 22, 32

5 Duronslet v. Cty. of Los Angeles, --- F. Supp. 3d ----, 2017 WL 2661619 (C.D. Cal. June 20, 2017).................... 14
6

7

Elrod v. Burns, 427 U.S. 347 (1976) ........................................................................................... 30

8 Evancho v. Pine-Richland Sch. Dist.,
9 237 F. Supp. 3d 267 (W.D. Pa. 2017) ................................................................ 14

10 Fabian v. Hosp. of Cent. Conn., 11 172 F. Supp. 3d 509 (D. Conn. 2016) ................................................................ 14

12 Fisher v. University of Texas at Austin, 13 133 S. Ct. 2411 (2013) ....................................................................................... 15

14 Fricke v. Lynch,

15

491 F. Supp. 381 (D.R.I. 1980) .......................................................................... 28

16 G.G. v. Gloucester Cty. Sch. Bd.,

17

853 F.3d 729 (4th Cir. 2017) .............................................................................. 14

18

Gay Law Students Ass’n v. Pac. Tel. & Tel. Co., 24 Cal. 3d 458 (Cal. 1979) ................................................................................. 28

19

20

Gay Students Org. of Univ. of N.H. v. Bonner, 509 F.2d 652 (1st Cir. 1974) .............................................................................. 27

21 Glenn v. Brumby, 22 663 F.3d 1312 (11th Cir. 2011).......................................................................... 14

23 Golinski v. OPM, 24 824 F. Supp. 2d 968 (N.D. Cal. 2012)................................................................ 13

25 Griswold v. Connecticut, 26 381 U.S. 479 (1965) ........................................................................................... 23

27 Harper v. Virginia State Bd. of Elections,

28

383 U.S. 663 (1966) ........................................................................................... 25

ATTORNEYS AT LAW LOS ANGELES

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MOTION FOR PRELIMINARY INJUNCTION

Case 5:17-cv-01799-JGB-KK Document 15 Filed 10/02/17 Page 6 of 44 Page ID #:102

1 Heller v. Doe by Doe, 2 509 U.S. 312 (1993) ........................................................................................... 16

3 Hernandez-Montiel v. INS,

4

225 F.3d 1084 (9th Cir. 2000) ...................................................................... 13, 24

5 INS v. St. Cyr, 533 U.S. 289 (2001) ............................................................................... 22, 25, 26
6

7

Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) ........................................................................ 17, 18

8 Landgraf v. USI Film Prods.,
9 511 U.S. 244 (1994) ............................................................................... 25, 26, 27

10 Lawrence v. Texas, 11 539 U.S. 558 (2003) ..................................................................................... 23, 24

12 In re Levenson, 13 587 F.3d 925 (9th Cir. 2009) .............................................................................. 22

14 Log Cabin Republicans v. United States,

15

716 F. Supp. 2d 884 (C.D. Cal. 2010), vacated on other grounds as moot, 658 F.3d 1162 (9th Cir. 2011) .................................................................. 27

16

17

Lopez v. Candaele, 630 F.3d 775 (9th Cir. 2010) .............................................................................. 28

18 Lopez-Valenzuela v. Arpaio, 19 770 F.3d 772 (9th Cir. 2014) ........................................................................ 22, 23

20 Lyng v. Int’l Union, 21 485 U.S. 360 (1988) ........................................................................................... 22

22 Macy v. Holder, 23 2012 WL 1435995 (EEOC Apr. 20, 2012) ........................................................ 15

24 Majors v. Jeanes,

25

48 F. Supp. 3d 1310 (D. Ariz. 2014) .................................................................. 31

26

Marlett v. Harrington, 2015 WL 6123613 (E.D. Cal. Oct. 16, 2015) .................................................... 14

27

28

Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) .............................................................................. 33

ATTORNEYS AT LAW LOS ANGELES

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MOTION FOR PRELIMINARY INJUNCTION

Case 5:17-cv-01799-JGB-KK Document 15 Filed 10/02/17 Page 7 of 44 Page ID #:103

1 Mendocino Envtl. Ctr. v. Mendocino Cty., 2 192 F.3d 1283 (9th Cir. 1999)............................................................................ 28

3 Monterey Mech. Co. v. Wilson,

4

125 F.3d 702 (9th Cir. 1997) .............................................................................. 30

5 N. Cheyenne Tribe v. Norton, 503 F.3d 836 (9th Cir. 2007) .............................................................................. 32
6

7

Nieto v. Flatau, 715 F. Supp. 2d 650 (E.D.N.C. 2010) ................................................................ 28

8 Nken v. Holder,
9 556 U.S. 418 (2009) ........................................................................................... 32

10 Norsworthy v. Beard, 11 87 F. Supp. 3d 1104 (N.D. Cal. 2015).......................................................... 13, 24

12 Obergefell v. Hodges, 13 135 S. Ct. 2584 (2015) ........................................................................... 22, 23, 25

14 Olive v. Harrington,

15

2016 WL 4899177 (E.D. Cal. Sept. 14, 2016) ................................................... 14

16 Planned Parenthood of Se. Pa. v. Casey,

17

505 U.S. 833 (1992) ........................................................................................... 23

18

Plyler v Doe, 457 U.S. 202 (1982) ........................................................................................... 13

19

20

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ........................................................................................... 14

21 Roberts v. U.S. Jaycees, 22 468 U.S. 609 (1984) ........................................................................................... 23

23 Rochin v. California, 24 342 U.S. 165 (1952) ........................................................................................... 25

25 Rodriguez v. Robbins, 26 715 F.3d 1127 (9th Cir. 2013)............................................................................ 33

27 Romer v. Evans,

28

517 U.S. 620 (1996) ..................................................................................... 12, 15

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1 Rosa v. Park W. Bank & Trust Co., 2 214 F.3d 213 (1st Cir. 2000) .............................................................................. 14

3 Sammartano v. First Judicial Dist. Court,

4

303 F.3d 959 (9th Cir. 2002) .............................................................................. 33

5 Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) ................................................................... 15
6

7

Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) ............................................................................ 14

8 Singh v. Carter,
9 168 F. Supp. 3d 216 (D.D.C. 2016) ................................................................... 35

10 Skinner v. Oklahoma ex rel. Williamson, 11 316 U.S. 535 (1942) ........................................................................................... 23

12 Small v. Avanti Health Sys., LLC, 13 661 F.3d 1180 (9th Cir. 2011)............................................................................ 30

14 Smith v. City of Salem,

15

378 F.3d 566 (6th Cir. 2004) .............................................................................. 14

16 Thomas v. Gonzales,

17

409 F.3d 1177 (9th Cir. 2005) ............................................................................ 13

18

Troxel v. Granville, 530 U.S. 57 (2000) ............................................................................................. 23

19

20

UAAIW Local 645, AFL-CIO v. Gen. Motors Assembly Div., 1982 WL 2028 (C.D. Cal. Oct. 29, 1982) .......................................................... 32

21 United States v. Virginia, 22 518 U.S. 515 (1996) ........................................................................................... 15

23 United States v. Windsor, 24 133 S. Ct. 2675 (2013) ................................................................................. 11, 16

25 Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 26 429 U.S. 252 (1977) ..................................................................................... 15, 17

27 Waste Mgmt. Holdings, Inc. v. Gilmore,

28

252 F.3d 316 (4th Cir. 2001) .............................................................................. 17

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1 Watkins v. U.S. Army, 2 875 F.2d 699 (9th Cir. 1989) .............................................................................. 26

3 Weaver v. Nebo Sch. Dist.,

4

29 F. Supp. 2d 1279 (D. Utah 1998) ............................................................ 27, 28

5 Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017) ...................................................................... 13, 14
6

7

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ......................................................................................... 11, 35

8 Witt v. Dep’t of Air Force,
9 527 F.3d 806 (9th Cir. 2008) .............................................................................. 24

10 Other Authorities 11 12 U.S. CONST. amend. I .............................................................................................. 27
13 U.S. CONST. amend. V ......................................................................................passim

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

MEMORANDUM OF POINTS & AUTHORITIES

2 I. INTRODUCTION

3

Following a lengthy review process, the United States Department of

4 Defense (“DOD”) in June 2016 reversed its prior policy barring transgender people

5 from military service and adopted a new policy permitting transgender people to

6 enlist and serve openly (“Open Service Policy”). In response, transgender service

7 members—including Plaintiffs in this case—identified themselves as transgender

8 to their chain of command, and many took steps to obtain transition-related

9 medical care. In addition, other transgender individuals—including Plaintiffs—

10 took steps to enlist.

11

On July 26, 2017, Defendant President Donald J. Trump abruptly announced

12 via Twitter that “the United States Government will not accept or allow

13 Transgender individuals to serve in any capacity in the U.S. Military.” On August

14 25, 2017, Defendant President Trump formalized that reversal of policy, directing

15 his co-Defendants to reinstate the ban “on military service by transgender

16 individuals that was in place prior to June 2016” (the “August 25 Memorandum”).

17

Through this Motion, Plaintiffs seek preliminary relief prohibiting

18 Defendants from implementing the ban on military service by transgender

19 individuals as an infringement of Plaintiffs’ rights under the United States

20 Constitution. The ban inflicts irreparable injuries upon Plaintiffs and Plaintiff

21 Equality California’s members. The ban denies Plaintiffs and their members the

22 equal protection of the laws, their right to liberty and privacy, and their right to

23 freedom of expression in violation of the United States Constitution. As set forth

24 below, Plaintiffs are likely to succeed on the merits of these claims. Plaintiffs also

25 easily satisfy the other preliminary injunction factors. As the Ninth Circuit has

26 held, the unlawful deprivation of liberty constitutes irreparable harm. Moreover,

27 particularly where transgender people have been serving loyally and with

28 distinction since the ban’s reversal, the balance of hardships and public interest

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1 favor an injunction. For these reasons, the Court should grant this Motion and

2 enjoin the implementation of the ban.

3 II. FACTUAL BACKGROUND

4

A. The Open Service Policy

5

Transgender individuals have served in the military for decades. In 2014,

6 transgender persons accounted for an estimated 8,800 active-duty service

7 members, and more than 134,000 veterans and retirees. (See Declaration of Adam

8 Sieff (“Sieff Decl.”), Ex. A at 1, 4.) Despite their numbers, transgender individuals

9 traditionally served in silence. Starting some time before 1981, DOD enforced a

10 policy that barred transgender people from serving openly. (See Declaration of Dr.

11 George R. Brown (“Brown Decl.”), ¶¶ 39-58.)

12

The military began a formal review of that previous discriminatory practice

13 in July 2015. In recognition that then-existing policy was “an outdated, confusing,

14 inconsistent approach that’s contrary to our value of service and individual

15 merit”—especially in the wake of the successful repeal of “Don’t Ask Don’t Tell,”

16 which affected gay and lesbian service members (see Declaration of Eric Fanning

17 (“Fanning Decl.”), ¶ 11; Declaration of Michael Mullen (“Mullen Decl.”), ¶¶ 9-

18 15)—then-Secretary of Defense Ashton Carter ordered Brad Carson, his acting

19 Undersecretary of Defense for Personnel and Readiness, to convene a working

20 group (the “Working Group”) to study the “readiness implications” of open service

21 by transgender individuals. (Sieff Decl., Ex. B at 1; see also Declaration of Brad

22 Carson (“Carson Decl.”), ¶¶ 8-10, Ex. A; Declaration of Deborah James (“James

23 Decl.”), ¶¶ 9-12; Declaration of Ray Mabus (“Mabus Decl.”), ¶¶ 8.) The Working

24 Group included leadership from across the Armed Forces, with representation from

25 a senior officer from each branch of service, as well as the Joint Chiefs of Staff,

26 Surgeons General, and the Service Branch Secretaries. (Carson Decl., ¶ 9.)

27

Over the course of the next year, the Working Group performed a

28 comprehensive review of the issues and policies related to service by transgender

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1 people. (Carson Decl., ¶ 10; James Decl., ¶¶ 11-12; Fanning Decl., ¶¶ 17-22;

2 Mabus Decl., ¶¶ 10-12.) They interviewed globally-deployed transgender service

3 members; consulted with commanders; and met with medical, readiness, and

4 personnel experts, as well as health insurance companies, and civilian employers.

5 (E.g. Carson Decl., ¶ 10; see also Sieff Decl., Ex. C.) The Working Group also

6 solicited an independent report from the RAND National Defense Research

7 Institute (“RAND”), a research institution that regularly provides research and

8 analysis to the Armed Services. (Carson Decl., ¶ 11.) RAND conducted an

9 exhaustive review of existing research, analyzed DOD data and policies related to

10 readiness, as well those of foreign militaries, and also examined medical

11 information and cost structures—including all available actuarial data to conclude

12 how many transgender service members are likely to seek gender transition-related

13 medical treatment. (See Carson Decl., ¶ 15, Ex B at 2-3.)

14

RAND subsequently issued a report reflecting the conclusions reached

15 following its exhaustive study (the “RAND Report”). The RAND Report stated

16 that there would be no negative impact on military readiness or deployability from

17 allowing transgender service members to serve openly, and that related medical

18 costs would comprise an “exceedingly small” share of DOD health expenditures.

19 (Carson Decl., Ex. B at xi-xii, 31, 70.) With respect to medical costs, RAND

20 concluded that “even in the most extreme scenario,” providing medical care for

21 transgender individuals would increase the military’s annual healthcare budget by

22 0.13 percent—$8.4 million out of $6.2 billion. (Carson Decl., Ex B at 36.)

23 Military leadership considered this financial impact to be “budget dust” and

24 “hardly even a rounding error.” (Mabus Decl., ¶ 41.)

25

With respect to deployability, the RAND Report reflected the Working

26 Group’s assessment and confirmed that the short-periods of non-deployability that

27 some transgender service members might experience as a result of gender

28 transition-related treatments would at most impact 0.0015 percent of all available

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1 deployable labor years across the military (Carson Decl., ¶ 18)—a miniscule figure

2 comparable to the non-deployability associated with medical conditions the

3 military does not consider a basis for discharge, like pregnancy and appendicitis.

4 (Carson Decl., ¶ 22; Declaration of Margaret Wilmoth (“Wilmoth Decl.”), ¶ 19.)

5 Moreover, citing the successful repeal of “Don’t Ask, Don’t Tell,” as well as the

6 experience of other countries that permit military service by transgender people,

7 the RAND Report confirmed the Working Group’s determination that open service

8 by transgender individuals would not undermine unit cohesion, operational

9 effectiveness, or readiness. (Carson Decl., ¶ 19-20, Ex. B at 44; Wilmoth Decl.,

10 ¶ 23; James Decl., ¶ 16.)

11

Based on its independent assessment and the findings of the RAND Report,

12 the Working Group concluded that there was no basis for a prohibition on open

13 military service by transgender individuals. (Fanning Decl., ¶¶ 25-27, 29; Carson

14 Decl., ¶ 26; Mabus Decl., ¶ 19; James Decl., ¶ 22.) Instead, the Working Group

15 concluded that the ban’s “primary impact was to cause harms” to the transgender

16 men and women serving in the military, as well as to their units. (Mabus Decl.,

17 ¶ 19.) Based on the Working Group’s comprehensive review and evaluation,

18 Defense Secretary Carter determined that “open service by transgender Service

19 members while being subject to the same standards and procedures as other

20 members with regard to their medical fitness for duty, physical fitness, uniform

21 and grooming, deployability, and retention, is consistent with military readiness

22 and with strength through diversity.” (Mabus Decl., Ex. C at 2.)

23

On June 30, 2016, the Secretary issued the Open Service Policy, rescinding

24 the historical policy of discriminating against transgender people. (Id.)

25

The Open Service Policy provided:

26

1. that “no otherwise qualified Service member may be involuntarily

27

separated discharged or denied reenlistment or continuation of service, solely on the basis of their gender identity” and that medical

28

conditions affecting transgender service members are treated “in a manner consistent with a Service member whose ability to serve is

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1

similarly affected for reasons unrelated to gender identity or gender

transition.” (Mabus Decl.. Ex. C at Attachment § 1(a)-(b));

2

2. that “transgender Service members may transition gender while

3

serving” pursuant to contemporaneously-issued guidance that stated

that “[a]ny medical care and treatment provided to an individual

4

Service member in the process of gender transition [is] provided in the

same manner as other medical care and treatment,” applying

5

consistent Decl., Ex.

standards for deployability D at § 1.2(d)-(e)); and

(Id.

at

Attachment

§

3(a);

Sieff

6

3. that individuals seeking to join the military would not be prohibited

7

from doing so solely Ex. C at § 1(a)).

because

they

are

transgender

(see

Mabus

Decl.,

8

9

The enlistment (also referred to as “accession”) policy and guidelines

10 included as part of the Open Service Policy were specific and thorough, setting

11 forth rigorous requirements to “ensure that those entering service are free of

12 medical conditions or physical defects that may require excessive time lost from

13 duty.” (Id. at § 2(a).) Specifically, under the Open Service Policy:

14 15

•

those with “[a] history of gender dysphoria” must have a medical provider’s certification that “the [prospective enlistee] ha[d] been stable

without clinically significant distress or impairment in social,

16

occupational, or other important areas of functioning for [at least] 18 months.” (Id. at § 2(a)(1) (emphasis in original).);

17 18

•

those with a history of any medical treatment “associated with gender transition” must have “completed all medical treatment” associated with

the transition; must have been “stable” in the transition for 18 months;

19

and must have been stable on any hormones for 18 months. 2(a)(2).); and

(Id. at §

20 21

•

for those with “[a] history of sex reassignment or genital reconstruction surgery,” at least 18 months must have passed since the surgery, no

further surgery must be required, and “no functional limitations or

22

complications may persist.” (Id. at § 2(a)(3).).

23

In the months following the issuance of the Open Service Policy, each

24 branch of the Armed Forces conducted mandatory trainings to ensure that all

25 military personnel, from commanding officers, to recruitment officers, to medical

26 personnel, to the most junior soldiers, were familiar with the Open Service Policy

27 and prepared to implement the new inclusive procedures permitting enlistment of

28 openly transgender people. (Brown Decl., ¶ 68; Declaration of Jaquice Tate (“Tate

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1 Decl.”), ¶ 20; Decl. of John Doe 2 (“John Doe 2 Decl.”), ¶ 23.) The policy

2 permitting transgender persons to enlist was to begin “[n]o[] later than July 1,

3 2017.” (Mabus Decl., Ex. C at § 2(a).)

4

On June 30, 2017—the day before new enlistments were scheduled to

5 commence—Defendant Sec. James Mattis, the current Secretary of Defense,

6 announced that it was “necessary to defer the start of accessions for six months,”

7 i.e., until January 1, 2018. (Sieff Decl., Ex. E.)

8

B. President Trump’s Reversal of the Open Service Policy

9

On July 26, 2017, Defendant President Trump abruptly announced a reversal

10 of the Open Service Policy via a series of three tweets:

11

After consultation with my Generals and military experts, please be advised that the United States Government will

12

not accept or allow . . . Transgender individuals to serve in any capacity in the U.S. Military. Our military must be

13

focused on decisive and overwhelming . . . victory and cannot be burdened with the tremendous medical costs

14

and disruption that transgender in the military would entail. Thank you

15

16 (Sieff Decl., Ex. F.)

17

Just weeks later, President Trump issued the August 25 Memorandum

18 formally reversing the Open Service Policy, and stating:

19

In my judgment, the previous Administration failed to identify a sufficient basis to conclude that terminating the

20

[military’s] longstanding policy and practice [forbidding service by transgender service members] would not

21

hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources, and there remain

22

meaningful concerns that further study is needed to ensure that continued implementation of last year’s

23

policy changes would not have those negative effects.

24 (Sieff Decl., Ex. G at § 1(a).)

25

The August 25 Memorandum has three components. First, it imposes a

26 blanket and indefinite extension of the ban on enlistment by openly transgender

27 persons, beyond the January 1, 2018 date previously announced by Secretary

28 Mattis. Second, it “halt[s] all use of DOD or DHS resources to fund sex

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1 reassignment surgical procedures for military personnel” except in limited

2 instances. Third, it bans the retention of transgender service members and requires

3 their separation from the military by directing that, as of March 23, 2018, military

4 policy shall “return” to the pre-June 2016 rules that excluded transgender people

5 from enlisting or serving openly. It directs the Secretaries of Defense and

6 Homeland Security to develop a plan by February 21, 2018 to implement the ban,

7 including with respect to “transgender individuals currently serving in the United

8 States military.” (Sieff Decl., Ex. G.)

9

C. Plaintiffs

10

Plaintiffs include active service members in the United States military who

11 are transgender, transgender individuals who wish to enlist in the military, and

12 Equality California, the nation’s largest statewide LGBTQ civil rights

13 organization, whose members include transgender persons who serve in the Armed

14 Forces and transgender persons who wish to enlist.

15

Plaintiff Sergeant Jaquice Tate, United States Army. Sergeant Tate has

16 served in the United States Army for nearly ten years, including a deployment to

17 Ramadi, Iraq, where he defended his compound and his comrades-in-arms. (Tate

18 Decl., ¶¶ 4, 6, 8.) For his service, Sergeant Tate was awarded an Army

19 Commendation Medal, two Colonel Coins of Excellence, and numerous

20 Certificates of Appreciation and Army Achievement Medals. (Id., ¶ 11.) Sergeant

21 Tate currently leads a team of Military Police at West Point, New York. (Id., ¶ 9.)

22 Relying on the Open Service Policy, Sergeant Tate came out as transgender to his

23 chain of command. (Id., ¶ 19.)

24

Sergeant Tate’s command has approved him for Drill Sergeant School, an

25 honor that has been placed in jeopardy by the ban. (Id., ¶¶ 10, 30.) Under the

26 supervision of DOD medical personnel, Sergeant Tate is undergoing hormone

27 replacement therapy (“HRT”) as part of his gender transition; the ban threatens to

28 disrupt his medical treatment. (Id., ¶ 21.) The ban has forced Sergeant Tate and

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1 his wife to reconsider their goals and plans. (Id., ¶¶ 25-27.) They planned to have

2 children, but the financial uncertainty as a result of the ban has caused them to

3 place their plans on hold. (Id., ¶ 28.)

4

Plaintiff Staff Sergeant Jane Doe, United States Air Force. Staff Sergeant

5 Jane Doe enlisted in the Air Force in 2010, served two deployments to the Middle

6 East, and is currently stationed abroad at a strategically important Air Force base.

7 (Declaration of Jane Doe (“Jane Doe Decl.”), ¶¶ 2-7). She currently serves as a

8 Risk Management Framework Program Manager and will soon be sent to work

9 with an intelligence-gathering unit at a strategic base in Asia. (Id., ¶¶ 1, 7.) For

10 her service, Staff Sergeant Jane Doe has been awarded an Air Force

11 Commendation Medal, two Air Force Achievement Medals, and a rare “below the

12 zone” early promotion. (Id., ¶¶ 4-6.) Relying on the Open Service Policy, Staff

13 Sergeant Jane Doe informed her command that she is transgender. (Id., ¶ 13.)

14

Staff Sergeant Jane Doe has been notified that she is in line for promotion to

15 Technical Sergeant, but the ban threatens that promotion. (Id., ¶¶ 7, 18.) As a

16 result of the ban, Staff Sergeant Jane Doe must now prepare for a financial future

17 in which she is involuntarily separated from the military, including loss of income,

18 health insurance and her expected retirement benefits. (Id., ¶ 17-18.)

19

Plaintiff Staff Sergeant John Doe 1, United States Air Force. Staff Sergeant

20 Doe has served in the Air Force since 2012. (Declaration of John Doe 1 (“John

21 Doe 1 Decl.”), ¶ 5). He graduated first in his class from Airman Leadership

22 School. (Id., ¶ 8.) Before that, he received a “below the zone” promotion to

23 Senior Airman and a “must promote” to Staff Sergeant, one of the strongest

24 endorsements for promotion. (Id., ¶¶ 6-7.) Staff Sergeant Doe is a subject matter

25 expert in certain technological skills vital to the military intelligence community.

26 (Id., ¶ 9.) For his performance, he was awarded Academic Achievement and

27 Distinguished Graduate honors. (Id., ¶ 8.) Relying on the Open Service Policy,

28 Staff Sergeant Doe told his command that he is transgender. (Id., ¶ 17.)

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1

Staff Sergeant Doe expected a promotion to Technical Sergeant with an

2 accompanying pay increase, but as a result of the ban, he instead must plan for

3 involuntary separation from the military. (Id., ¶ 10, 20.) He now must make

4 decisions assuming that he will lose his income and health insurance, as well as

5 any hope for retirement benefits. (Id., ¶¶ 20-21.) He also is undergoing HRT, but

6 is concerned that the ban will disrupt his medical treatment. (Id., ¶¶ 17, 21.)

7

Plaintiff Specialist John Doe 2, United States Army. Specialist John Doe 2

8 enlisted in the Army in 2015. (John Doe 2 Decl., ¶¶ 6-7.) His technical expertise

9 pertains to the operations, diagnostics, and maintenance of the multichannel

10 communications systems necessary for real-time strategic and tactical decisions.

11 (Id., ¶ 5.) His position requires Secret-level Security Clearance. (Id.) In his two

12 years of service, Specialist Doe has received two Colonel Coins of Excellence.

13 (Id., ¶ 6.) Relying on the Open Service Policy, Specialist Doe told his command

14 that he is transgender. (Id., ¶ 20.) Specialist Doe had planned to become a

15 Criminal Investigations Division (“CID”) officer upon meeting the age

16 requirement next year, but instead must plan for involuntary separation from the

17 military. (Id., ¶¶ 7, 30.) The ban is jeopardizing his financial future, retirement

18 planning, health insurance, and educational goals for both Specialist Doe and his

19 wife. (Id., ¶¶ 31, 34-37.)

20

Plaintiff Aiden Stockman. Aiden Stockman is 20 years old. (Declaration of

21 Aiden Stockman (“Stockman Decl.”), ¶ 1.) He aspires to serve his country in the

22 military, and has worked toward that goal since the eighth grade. (Id., ¶ 8.) He

23 took the Armed Services Vocational Aptitude Battery (“ASVAB”) test so that he

24 could join the military. (Id., ¶ 10.) He intends to enlist so that he may begin a

25 career focused on service, with a steady income, opportunities for advancement,

26 and healthcare. (Id., ¶ 15-16.) However, solely because he is transgender, the ban

27 is forcing Plaintiff Stockman to delay the start of his military career and also to

28 look for other work. (Id.)

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1

Plaintiff Nicolas Talbott. Nicolas Talbott is 23 years old. (Declaration of

2 Nicolas Tablott (“Talbott Decl.”), ¶ 1.) He wants to serve his country in the

3 military, most likely as an airman in the Air Force National Guard. (Id., ¶ 1.)

4 Plaintiff Talbott decided to pursue a career in the military after learning about the

5 Reserve Officers’ Training Corps (“ROTC”) during college. (Id., ¶ 3.) When the

6 Open Service Policy was announced, he began reaching out to military recruiters,

7 eventually connecting with a recruiter for the Air Force National Guard. (Id., ¶ 10-

8 11.) Since that time, he has been studying practice ASVAB exams and training

9 regularly for the physical exams necessary to qualify for military service. (Id., ¶¶

10 13, 19.) He has counted on joining the military, seeking the opportunity to serve

11 his country, and the training, steady income and health insurance that military

12 service provides. (Id., ¶¶ 3, 16-17.) Simply because he is transgender, and despite

13 his continued preparation, the ban is denying Plaintiff Talbott that opportunity.

14

Plaintiff Tamasyn Reeves. Tamasyn Reeves is 29. (Declaration of Tamasyn

15 Reeves (“Reeves Decl.”), ¶ 1.) She comes from a military family and has wanted

16 to serve in the military since hearing her grandfather’s stories of service on the

17 U.S.S. Kiersarge when she was a child. (Id., ¶ 2-3.) She attempted to enlist in the

18 Navy, but was rejected because of her LGBTQ identity. (Id., ¶ 5.) Upon learning

19 of the Open Service Policy, she made plans to enlist as soon as she graduated

20 college; enlistment remains her goal today. (Id., ¶ 9, 12.) Rather than earning a

21 military salary, housing allowance and health insurance as planned, the ban is

22 forcing her to consider other jobs upon graduation. (Id., ¶ 13.)

23

Plaintiff Equality California. Plaintiff Equality California is an organization

24 dedicated to combatting discrimination and injustice on the basis of sexual

25 orientation and gender identity, and to protecting the fundamental rights of those

26 within the LGBTQ community. (Declaration of Rick Zbur (“Zbur Decl.”), ¶ 2.)

27 Its members include currently serving transgender service members (both those

28 who have come out to their command in reliance on the Open Service Policy and

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1 some who are actively serving but have not come out for fear of retribution and

2 separation), as well as transgender people who have taken steps to enlist. (Id., ¶ 4.)

3

Each of the Plaintiffs is facing and experiencing the stigma, hostility, and

4 animosity toward transgender individuals that inevitably follows from the ban.

5 (Tate Decl., ¶ 29; Jane Doe Decl., ¶ 22-24; John Doe 1 Decl., ¶¶ 23-24; John Doe 2

6 Decl., ¶ 38; Stockman Decl., ¶ 18; Talbott Decl., ¶ 18; Reeves Decl., ¶15-16; Zbur

7 Decl., ¶ 7.) Each of the Plaintiffs asks this Court to preliminarily enjoin

8 Defendants’ implementation of the ban.

9 III. ARGUMENT

10

“A plaintiff seeking a preliminary injunction must establish that he is likely

11 to succeed on the merits, that he is likely to suffer irreparable harm in the absence

12 of preliminary relief, that the balance of equities tips in his favor, and that an

13 injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555

14 U.S. 7, 20 (2008). Alternatively, “serious questions going to the merits and a

15 balance of hardships that tips sharply towards the plaintiff can support issuance of

16 a preliminary injunction, so long as the plaintiff also shows that there is a

17 likelihood of irreparable injury and that the injunction is in the public interest.”

18 Alliance for the Wild Rockies v. Cotrell, 632 F.3d 1127, 1135 (9th Cir. 2011)

19 (internal quotation marks omitted). Plaintiffs easily satisfy all four factors.

20

A. Plaintiffs Likely Will Succeed on the Merits.

21

Banning transgender persons from serving in the military violates the U.S.

22 Constitution’s guarantees of equal protection, due process, and freedom of

23 expression. Plaintiffs are likely to succeed on the merits of each claim.

24

1. The Ban on Transgender Military Service Violates Equal

25

Protection.

26

“The liberty protected by the Fifth Amendment’s Due Process Clause

27 contains within it the prohibition against denying to any person the equal

28 protection of the laws.” United States v. Windsor, 133 S. Ct. 2675, 2695 (2013).

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1 The ban violates that prohibition. On its face, the August 25 Memorandum directs

2 the Secretaries of Defense and Homeland Security to reinstate a ban that

3 “prohibited openly transgender individuals from accession into the United State

4 military and authorized the discharge of such individuals,” thereby excluding an

5 entire class of persons from military service based on a characteristic with no

6 bearing on their ability to serve. Such invidious discrimination warrants

7 heightened review, both as a classification based on transgender status—a suspect

8 classification—and as a classification based on sex. While the ban is subject to

9 heightened scrutiny, it fails under any level of review. President Trump’s abrupt

10 decision to override the military’s evidence-based policy defies rational

11 explanation. The justifications cited in defense of the ban are either demonstrably

12 false or “ma[k]e no sense in light of how the [military] treat[s] other groups

13 similarly situated in relevant respects.” Bd. of Trs. Of Univ. of Ala. v. Garrett, 531

14 U.S. 356, 366 n. 4 (2001). As such, the ban is “inexplicable by anything but

15 animus toward the class it affects.” Romer v. Evans, 517 U.S. 620, 623 (1996).

16

a. A Ban on Transgender Military Service Warrants Strict

17

Scrutiny Because It Discriminates Based on a Suspect Classification.

18

19

By singling out individuals for exclusion from military service based on a

20 person’s transgender status, the ban rests on a suspect classification warranting

21 strict scrutiny. The Supreme Court has recognized that a classification warrants

22 strict scrutiny when: (i) it has been used to oppress a historically disfavored group,

23 Bowen v. Gilliard, 483 U.S. 587, 602 (1987); (ii) it “bears no relation to ability to

24 perform or contribute to society,” City of Cleburne v. Cleburne Living Ctr., 473

25 U.S. 432, 440 (1985); (iii) it targets a “discrete group” that exhibits “obvious,

26 immutable, or distinguishing characteristics,” Bowen, 483 U.S. at 602; and (iv) the

27 group targeted is politically “vulnerable,” id. at 629. “The presence of any of the

28 factors is a signal that the particular classification is ‘more likely than others to

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1 reflect deepseated prejudice rather than legislative rationality in pursuit of some

2 legitimate objective,’ thus requiring heightened scrutiny.” Golinski v. OPM, 824

3 F. Supp. 2d 968, 983 (N.D. Cal. 2012) (emphasis added), quoting Plyler v Doe,

4 457 U.S. 202, 216 n.4 (1982).

5

Discrimination based on a person’s transgender status meets every one of

6 these criteria. First, transgender people have long “face[d] discrimination,

7 harassment, and violence because of their gender identity.” Whitaker v. Kenosha

8 Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1051 (7th Cir. 2017);

9 Norsworthy v. Beard, 87 F. Supp. 3d 1104, 1119 n.8 (N.D. Cal. 2015) (finding that

10 transgender people “have experienced even greater levels of societal discrimination

11 and marginalization” than gay and lesbian people); Adkins v. City of New York, 143

12 F. Supp. 3d 134, 139 (S.D.N.Y. 2015) (same). Second, “no data or argument

13 suggest[s] that a transgender person, simply by virtue of their status, is any less

14 productive than any other member of society.” Adkins, F. Supp. 3d 139; see also

15 Norsworthy, 87 F. Supp. 3d at 1119 n.8 (holding that being transgender is

16 “irrelevant to [a person’s] ability to contribute to society”). Third, transgender

17 people have “immutable [and] distinguishing characteristics that define them as a

18 discrete group.” Bd. of Educ. of Highland Local Sch. Dist. v. U.S. Dep’t of Educ.,

19 208 F. Supp. 3d 850, 874 (S.D. Ohio 2016); Norsworthy, 87 F. Supp. 3d at 1119

20 n.8 (transgender identity is “immutable”); Hernandez-Montiel v. INS, 225 F.3d

21 1084, 1093 (9th Cir. 2000), overruled on other grounds by Thomas v. Gonzales,

22 409 F.3d 1177 (9th Cir. 2005) (en banc) (being transgender is “so fundamental”

23 that a person should not be required to hide or suppress it in order to avoid

24 discrimination); see also Brown Decl., ¶ 23.

25

And finally, “as a tiny minority of the population, whose members are

26 stigmatized,” transgender people have limited recourse through the political

27 process to correct the kind of injury—a ban on military service—that brands them

28 with a stamp of inferiority and interferes with their rights of equal citizenship. Id.;

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1 see also Adkins, 143 F. Supp. 3d at 140 (“[T]ransgender people lack the political 2 strength to protect themselves.”); Evancho v. Pine-Richland Sch. Dist., 237 F. 3 Supp. 3d 267, 288 (W.D. Pa. 2017) (same); G.G. v. Gloucester Cty. Sch. Bd., 853 4 F.3d 729, 730 (4th Cir. 2017) (Davis, J., concurring) (transgender people are “a

5 vulnerable group that has traditionally been unrecognized, unrepresented, and 6 unprotected”). In sum, discrimination based on transgender status has all the

7 indicia of a suspect classification and, thus, warrants the highest level of review.

8

b. The Ban Also Warrants Heightened Scrutiny Because It

9

Discriminates Based on Sex.

10

Discrimination against transgender persons also warrants heightened

11 scrutiny because, as the Ninth Circuit and other circuits have held, it is sex

12 discrimination.1 See Schwenk v. Hartford, 204 F.3d 1187, 1200-03 (9th Cir. 2000)

13 (recognizing that discrimination against a transgender person is based on gender

14 stereotypes) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). As the

15 DOD has recognized, “discrimination based on gender identity is a form of sex

16 discrimination.” (Mabus Decl., Ex. D at 4); Glenn v. Brumby, 663 F.3d 1312,

17 1316 (11th Cir. 2011); see Whitaker, 858 F.3d at 1047-51; Smith v. City of Salem,

18 378 F.3d 566, 572-75 (6th Cir. 2004); Rosa v. Park W. Bank & Trust Co., 214 F.3d

19 213, 215-16 (1st Cir. 2000).

20

Discriminating against individuals because they have undergone, or wish to

21 undergo, a gender transition is “literally discrimination ‘because of … sex.”

22 Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 527 (D. Conn. 2016);

23

24 1

Numerous district courts in this Circuit have applied heightened review to

25 discrimination against transgender people, either as a sex-based characteristic or as

26

a status that independently warrants heightened scrutiny. See Olive v. Harrington, 2016 WL 4899177, at *5 (E.D. Cal. Sept. 14, 2016); Marlett v. Harrington, 2015

27

WL 6123613, at *4 (E.D. Cal. Oct. 16, 2015); Duronslet v. Cty. of Los Angeles, --F. Supp. 3d ----, 2017 WL 2661619, at *6 (C.D. Cal. June 20, 2017) (concluding

28

without deciding that “our current understanding of transgenderism” supports “the application of heightened scrutiny”).

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1 Schroer v. Billington, 577 F. Supp. 2d 293, 302 (D.D.C. 2008) (emphasis added).

2 Discrimination against men or women because they have transitioned from the sex

3 assigned to them at birth is inherently sex-based for at least two reasons. First, the

4 different treatment requires consideration of a sex-related characteristic of the

5 individual. Second, such discrimination because a person changes their sex is sex-

6 based just as discrimination because someone changed their religion is religion-

7 based. Schroer, 577 F. Supp. 2d at 306-07; see also Macy v. Holder, 2012 WL

8 1435995, at *11 (EEOC Apr. 20, 2012).

9

c. The Ban Cannot Satisfy Any Level of Review.

10

The asserted justifications for the ban cannot survive any level of equal

11 protection review. Because discrimination based on transgender status is a suspect

12 classification, the ban may be upheld only if it is “narrowly tailored to further

13 compelling governmental interests.” Fisher v. University of Texas at Austin, 133

14 S. Ct. 2411, 2419 (2013). At a minimum, under Ninth Circuit precedent

15 recognizing that anti-transgender discrimination also discriminates based on sex,

16 the ban must be “substantially related” to an “exceedingly persuasive” justification.

17 United States v. Virginia, 518 U.S. 515, 533 (1996).

18

Far from meeting these stringent tests, the ban fails even the most basic level

19 of review. The haste with which the government enacted the ban—suddenly,

20 without deliberation or significant involvement from military leadership, and in

21 total disregard for the military’s own extensive examination of relevant evidence—

22 itself shows the ban was enacted for an improper purpose. See, e.g., Village of

23 Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266-268

24 (1977) (holding that the circumstances in which a policy is enacted, including

25 anomalies in the process, may show that it was enacted for an improper purpose);

26 Sieff Decl., Ex. M. (military leaders were “blindsided” by the announced ban).

27

“It is not within our constitutional tradition to enact laws of this sort.”

28 Romer, 517 U.S. at 633. Even under rational basis review, justifications must have

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1 a “footing in the realities of the subject addressed,” Heller v. Doe by Doe, 509 U.S.

2 312, 321 (1993), and the government “may not rely on a classification whose

3 relationship to an asserted goal is so attenuated as to render the distinction arbitrary

4 or irrational,” Cleburne, 473 U.S. at 446. As explained below, the ban fails even

5 these most basic tests of equal protection.

6

The August 25 Memorandum cites three justifications for reversing the

7 policy permitting open service, asserting that permitting transgender people to

8 serve would: (1) “hinder military effectiveness”; (2) “disrupt unit cohesion”; and

9 (3) “tax military resources.” (Sieff Decl., Ex. G at § 1(a).) As set forth below,

10 none of these purported rationales for excluding all transgender people from

11 military service has any basis. Especially in light of the circumstances surrounding

12 the announcement of the ban, this complete disconnect between the effect of the

13 ban and its asserted rationales inescapably leads to the conclusion that the ban

14 lacks any footing in reality and advances no legitimate interest. Cf. Windsor, 133

15 S. Ct. at 2694 (holding that a law excluding same-sex spouses from federal benefits

16 was designed to “impose inequality” rather than to advance a legitimate

17 governmental interest).

18

i) The Circumstances, Context, and Irregularity of the

19

Ban’s Adoption Show That It Was Enacted for an

Improper Purpose.

20

The extraordinary context of this case shows that the ban was enacted for

21 an improper discriminatory purpose. Before adopting a policy permitting open

22 military service by transgender people, the DOD undertook a lengthy, careful,

23 and exhaustive process that comprehensively examined—and rejected as

24 lacking any evidentiary basis—each of the justifications cited by

25 Defendants. Such a dramatic reversal of military policy would ordinarily

26 require some formal deliberation or process of review. In addition, the military

27 has consistently eliminated prior barriers to equal military service by other

28 previously disfavored groups, including African American people, women, and

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1 lesbian, gay, and bisexual people. The resulting diversity has strengthened the

2 military. (See, e.g., Mabus Decl., ¶ 46.) As noted by Former Navy Secretary

3 Ray Mabus, there is not “another instance in United States military history of

4 such a stark and unfounded reversal of policy, or of any example in our nation’s

5 history in which a minority group once permitted to serve has been excluded

6 from the military after its members had been allowed to serve openly and

7 honestly.” (Id., ¶ 47; see also James Decl., ¶ 45.)

8

This unprecedented irregularity eviscerates any claim that this reversal of

9 policy was adopted for legitimate reasons. See Int’l Refugee Assistance Project

10 (“IRAP”) v. Trump, 857 F.3d 554, 596 (4th Cir. 2017) (en banc) (proffered

11 national security interest “is belied by evidence in the record that President

12 Trump issued the First Executive Order without consulting the relevant national

13 security agencies”); Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 336

14 (4th Cir. 2001) (discriminatory purpose shown by “the specific sequence of

15 events leading up to the particular decision being challenged, including any

16 significant departures from normal procedures” (internal quotation marks

17 omitted)); Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1066 (9th Cir.

18 2014) (granting preliminary injunction under rational basis review where the

19 policy simply “appears intended to express animus”).

20

The illegitimacy of this abrupt change in the status quo and reinstatement

21 of a categorical ban, after more than a year of success with permitting

22 transgender troops to serve openly, is underscored by the political context in

23 which it occurred, which also strongly suggests that it was enacted for an

24 improper purpose. Arlington Heights, 429 U.S. at 266-68. The sudden

25 reinstatement of a categorical ban is only one of many hostile steps taken by this

26 administration, even in its short tenure, to erode core protections and deny

27 equality to transgender people. From the earliest days of this administration,

28 federal agencies began to take immediate action to identify and reverse legal

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1 guarantees of equality for transgender people. For example, one of its earliest

2 actions was to withdraw guidance intended to ensure the equal treatment of

3 transgender students in schools. (See Sieff Decl., Ex. R.) Soon thereafter, the

4 Department of Justice abandoned its challenge to a North Carolina law targeting

5 transgender people as well as its appeal of a nationwide injunction that, to this

6 day, prohibits the federal government from responding to discrimination claims

7 relating to health care by transgender people. Around the same time, the

8 Department of Health and Human Services announced that it was excluding

9 transgender elders from its annual survey of older adults and the service they

10 need. (Id. (citing additional examples).)

11

The timing and immediate political context of the ban also show that it

12 was enacted for an improper purpose. There was no urgency as a matter of

13 policy to announce a ban on transgender service on July 26, 2017. Rather, that

14 date correlated with efforts by some members of Congress to strip transgender

15 service members of essential health care, based on open animosity toward

16 transgender people. (Sieff Decl., Exs. K, L.) President Trump made his abrupt

17 announcement on Twitter shortly after being contacted by those legislators and

18 after meeting with a national anti-transgender advocacy organization about the

19 ban. President Trump issued his precipitous announcement two weeks later.

20 (See Sieff Decl., Ex. S.) This backdrop reinforces the conclusion that the ban

21 reflects a desire to cater to “negative attitudes,” “fear,” and “irrational

22 prejudice.” Cleburne, 473 U.S. at 448, 450; cf. IRAP, 857 F.3d at 592 (rejecting

23 asserted justification based on national security where political context

24 demonstrated that it was a pretext for discrimination).

25

ii) Banning Transgender People from Military Service is

26

Not Rationally Related to Military Effectiveness.

27

This evidence that the ban reflects “mere negative attitudes, or fear,”

28 Cleburne, 473 U.S. at 448, is confirmed by the absence of any rational connection

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1 between it and its stated purposes. The ban does not rationally, much less

2 substantially, further the government’s interest in military effectiveness. Like

3 thousands of other transgender service members, Plaintiffs are serving their

4 country with distinction. Their transgender status has no negative impact on

5 operational effectiveness or readiness. During their time serving openly, Plaintiffs

6 have continued to be selected for promotions in rank as well as awards and

7 commendations for their exemplary service. (Tate Decl., ¶¶ 9-10; Jane Doe Decl.,

8 ¶ 7; John Doe 2 Decl., ¶ 5-6.) Plaintiffs’ service records confirm the conclusions

9 reached by the Working Group and the DOD that “service by transgender Service

10 members while being subject to the same standards and procedures as other

11 members with regard to their medical fitness for duty, physical fitness, uniform

12 and grooming, deployability, and retention, is consistent with military readiness.”

13 (Mabus Decl., Ex. C (emphasis added); see Carson Decl., ¶¶ 17-20; see also

14 Brown Decl., Ex. C at 61 (explaining how open service by transgender individuals

15 in other countries has in fact “improved readiness”).) The military uses strict

16 protocols to assess the fitness and deployability of its servicepersons (Mabus Decl.,

17 Ex. C at Attachment § 1), that apply to transgender individuals in military service

18 and ensure their service, like those of others, advances military readiness.

19

The fact that transgender people may seek medical care for transition does

20 not change this analysis. Military readiness is not undermined by the fact that

21 many transgender people undergo gender transition and that some may have a

22 medical need for transition-related surgeries. Under the accessions policy for

23 transgender service members, men and women who are transgender must

24 generally have completed all transition-related surgery 18 months before initial

25 enlistment. (Sieff Decl., Ex. E.) Some (but not all) transgender service

26 members who have already enlisted may require medically necessary surgeries,

27 but any impact on availability for deployment is “negligible and significantly

28

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1 smaller than the lack of availability due to [other] medical conditions.” (Brown

2 Decl., Ex. C (RAND Report) at 46.)

3

The evidence reviewed by the Working Group, which formed the basis of

4 the DOD policy, showed that the impact of transition-related care on deployable

5 transgender service members “is negligible,” amounting to a minuscule fraction of

6 non-deployable labor hours. (Id.) The RAND Report concluded that based even

7 on the most aggressive estimates of utilization, “we expect the annual gender

8 transition-related health care to be an extremely small part of overall health care

9 provided to the [active] population.” (Id. at 31.) As the Working Group found,

10 there is no reason to treat this minuscule impact any differently from the far more

11 significant impact of other common medical conditions that require short-term

12 gaps in deployability, such as “pregnancy, orthopedic injuries, obstructive sleep

13 apnea, appendicitis, gall bladder disease, infectious disease, and myriad other

14 conditions.” (Carson Decl., ¶ 22; see Wilmoth Decl., ¶¶ 14-20.)

15

Over 40 years ago, the Second Circuit struck down military regulations that

16 barred pregnant women from service, finding that their exclusion was not

17 rationally related to the asserted justifications of readiness and mobility. See, e.g.,

18 Crawford v. Cushman, 531 F.2d 1114, 1121-25 (2d Cir. 1976). So too here, there

19 simply is no rational relationship between the ban and Defendants’ claimed interest

20 in military readiness.

21

iii) Banning Transgender People from Military Service is

22

Not Rationally Related to Promoting Unit Cohesion.

23

The evidence reviewed by the Working Group similarly revealed “no

24 evidence or basis for concern that permitting openly transgender people to serve in

25 the military would disrupt unit cohesion.” (Carson Decl., ¶ 19.) To the contrary,

26 the available evidence, including the experience of foreign militaries who permit

27 openly transgender personnel to serve, showed that the opposite is true. (See id.,

28 ¶ 20; Fanning Decl., ¶ 26; James Decl., ¶¶ 12-13, 17; Mabus Decl., ¶ 17.) Similar

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1 concerns were raised about policy changes permitting open service by gay and

2 lesbian personnel and allowing women to serve in ground combat positions; in

3 neither case were these concerns borne out by subsequent experience. (See Carson 4 Decl., ¶ 19; Mabus Decl., ¶ 42; Mullen Decl. ¶¶ 12-14.)

5

Contrary to promoting unit cohesion, the reversal of policy in the face of

6 transgender people serving honorably and with distinction, sows fear and mistrust

7 among all the troops, transgender and non-transgender alike. “This sudden

8 reversal also undermines the morale and readiness of other groups who must now

9 deal with the stress and uncertainty created by this dangerous precedent, which

10 represents a stark departure from the foundational principle that military policy

11 will be based on military, not political, considerations.” (Mabus Decl., ¶ 50.) It

12 has triggered a “culture of fear” that “is anathema to the stability and certainty”

13 essential to a strong military. (Id., ¶ 51.)

14

iv) Cost Does Not Justify Banning Transgender People from

15

Military Service.

16

The ban also cites the supposedly burdensome costs of transition-related

17 healthcare despite DOD’s conclusion, based on the Working Group’s rigorous

18 review, that the cost of such care is de minimis—mere “budget dust,” as Secretary

19 of the Navy Ray Mabus explained. (Mabus Decl., ¶ 41.) Considering the utterly

20 inconsequential cost of transition-related medical care the ban purports to

21 eliminate, it is impossible to see a cost-based justification as anything other than

22 pretext for invidious discrimination, especially when the Military Health Service

23 regularly provides the same care, including hormone therapy and similar surgeries,

24 to non-transgender service members.2 (Carson Decl., ¶ 14; Wilmoth Decl., ¶¶ 14-

25

2 Far from economizing government resources, in the short-term, the ban

26 actually does the opposite: even using the government’s most extreme estimate of

27

the medical costs associated with service by transgender individuals, any negligible cost-savings introduced by the ban is negated at least tenfold by new recruitment

28

and retraining costs that the ban imposes. (Brown Decl., Ex. B at 35-37, 70; Sieff Decl., Ex. T ; see also Carson Decl., ¶ 32; Fanning Decl., ¶ 60; Mabus Decl., ¶ 45.)

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1 20.) “[A] government policy [which] incidentally saves the government an

2 insignificant amount of money does not provide a rational basis for that policy if

3 the policy is . . . founded upon a prohibited or arbitrary ground.” In re Levenson,

4 587 F.3d 925, 933 (9th Cir. 2009); see also Lyng v. Int’l Union, 485 U.S. 360, 376-

5 77 (1988) (“[S]omething more than an invocation of the public fisc is necessary to

6 demonstrate the rationality of selecting [one group], rather than some other group,

7 to suffer the burden of cost-cutting legislation.”); Diaz v. Brewer, 656 F.3d 1008,

8 1014 (9th Cir. 2011) (preservation of government resources cannot provide a

9 rational basis to bar some arbitrarily chosen group from a government program).

10

2. The Ban Violates Plaintiffs’ Right to Due Process.

11

The ban violates Plaintiffs’ right to due process in two ways. First, the Due

12 Process Clause protects the fundamental right to personal autonomy. Obergefell v.

13 Hodges, 135 S. Ct. 2584, 2597-98 (2015). The fundamental right to autonomy

14 includes the right of every person, including those who are transgender, to live in

15 accord with their gender identity. Defendants have violated that right by barring

16 transgender people from military service despite the absence of any rational basis

17 for doing so, much less the more demanding justification required here. Lopez-

18 Valenzuela v. Arpaio, 770 F.3d 772, 780 (9th Cir. 2014) (heightened scrutiny

19 applies when the government interferes with a fundamental right). The Due

20 Process Clause also prohibits the government from arbitrarily punishing conduct

21 that the government itself previously sanctioned and induced. See INS v. St. Cyr,

22 533 U.S. 289, 323 (2001). The ban violates that requirement by penalizing

23 Plaintiffs and other transgender persons for engaging in the very conduct—

24 identifying themselves as transgender—that the government itself encouraged.

25

a. The Ban Violates Plaintiffs’ Fundamental Right to

26

Personal Autonomy.

27

“The Due Process Clause provides heightened protection against

28 government interference with certain fundamental rights and liberty interests,

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1 forbidding the government to infringe certain fundamental liberty interests at all,

2 . . . unless the infringement is narrowly tailored to serve a compelling state

3 interest.” Lopez-Valenzuela v. Arpaio, 770 F.3d at 780 (citations and internal

4 marks omitted) (emphasis original). Banning transgender persons from military

5 service warrants, and fails, this heightened review. Far from being narrowly

6 tailored, the ban sweeps broadly, categorically excluding all transgender persons

7 from military service. And, as explained above, the ban fails to serve even a

8 legitimate state interest, much less the compelling interest required here.

9

The right to live in accord with one’s gender identity is an inherent aspect of

10 the right to personal autonomy enjoyed by all persons. “Liberty presumes an

11 autonomy of self[.]” Lawrence v. Texas, 539 U.S. 558, 562 (2003). The

12 Constitution secures to all persons the fundamental liberty “to define and express

13 their identity.” Obergefell, 135 S. Ct. at 2593. As the Supreme Court has

14 repeatedly explained, the liberty protected by the Due Process Clause includes the

15 right of the individual, rather than the state, to make “certain personal choices

16 central to individual dignity and autonomy, including intimate choices that define

17 personal identity and beliefs.” Id. at 2597. The right to autonomy includes

18 important personal decisions that define the meaning of a person’s life—such as

19 the freedom to choose whether and whom to marry, whether to use birth control,

20 whether to have a child, how to raise one’s child, and whether to engage in

21 consensual adult intimacy outside of marriage. Id.; Griswold v. Connecticut, 381

22 U.S. 479 (1965); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942);

23 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992); Troxel v.

24 Granville, 530 U.S. 57, 65-66 (2000); Lawrence, 539 U.S. at 578; see also Roberts

25 v. U.S. Jaycees, 468 U.S. 609, 619 (1984) (explaining that the Constitution protects

26 these decisions from “unwarranted state interference” in order to “safeguard[] the

27 ability independently to define ones identity that is central to any concept of

28 liberty”).

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1

Under these well-established principles, the fundamental right to autonomy

2 must include a person’s right to be transgender, just as it includes a person’s right

3 to be lesbian, gay, bisexual, or heterosexual. Like a person’s sexual orientation or

4 other central aspects of personhood, gender identity is “a basic component of a

5 person’s core identity.” Hernandez-Montiel, 225 F.3d at 1094 (internal citations

6 and quotation marks omitted); Norsworthy, 87 F. Supp. 3d at 1119 n.8 (transgender

7 identity is “immutable”); see also Brown Decl., ¶¶ 21-23. Just as gender is an

8 important aspect of identity for non-transgender people—one that feels inseparable

9 from who they are—it is equally important for transgender people. Here, Plaintiffs

10 attest to knowing their gender as a core aspect of identity even before they had a

11 word for it. (See John Doe 1 Decl., ¶¶ 13-15 (“For as long as I can remember, I

12 have felt that inside, I am male.”); see also Tate Decl., ¶ 15; Stockman Decl., ¶ 3;

13 Talbott Decl., ¶ 4; Reeves Decl., ¶ 4; Jane Doe Decl., ¶ 10; John Doe 2 Decl., ¶

14 15.) The ban intrudes upon the right of transgender men and women who already

15 serve in accordance with military standards or who wish to do so, and who simply

16 seek to live as who they are, consistent with this core aspect of their identity.

17

That intrusion is subject to heightened review. Even within the context of

18 military service, government actions that burden a serviceperson’s fundamental

19 right to personal autonomy are subject to heightened scrutiny. Witt v. Dep’t of Air

20 Force, 527 F.3d 806, 819 (9th Cir. 2008) (holding that heightened scrutiny applies

21 “when the government attempts to intrude upon . . . the rights [of personal

22 autonomy] identified in Lawrence”).

23

Moreover, the ban is subject to heightened scrutiny not only because it

24 burdens a fundamental right, but because it does so selectively. For the great

25 majority of those serving in the Armed Forces, the ban does not restrict their right

26 to identify as who they are or to live in accord with their gender identity. Only for

27 the minority of those serving whose gender identity is not aligned with their

28 assigned sex—transgender people—does the ban deny this right. When a law

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1 selectively denies a protected liberty, heightened equal protection scrutiny also

2 applies. See, e.g., Obergefell, 135 S. Ct. at 2603 (explaining “the synergy between

3 the two protections”); Attorney General of New York v. Soto-Lopez, 476 U.S. 898,

4 902 (1986); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 672 (1966).

5 As discussed above, see supra § III.A.1.c, the ban cannot survive any level of

6 review, much less the exacting review required here. The ban is thus

7 unconstitutional, and Plaintiffs are likely to succeed on the merits of this claim.

8

b. The Ban Impermissibly and Retroactively Punishes

9

Conduct the Government Induced.

10

The “canons of decency and fair play” that animate the Due Process Clause,

11 Rochin v. California, 342 U.S. 165, 173 (1952), “constrain the extent to which

12 government can upset settled expectations,” Cleburne, 473 U.S. at 471 n.22.

13 Expectations concerning the lawfulness of one’s actions, especially, must “not be

14 lightly disrupted,” as “considerations of fairness dictate that individuals should

15 have an opportunity to know what the law is and to conform their conduct

16 accordingly.” Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994).

17

“The Due Process Clause . . . protects the[se] interests in fair notice and

18 repose” against the enforcement of “retroactive” public policies. Id. at 266. A

19 policy has an “impermissible retroactive effect,” and courts prohibit its application,

20 when it inter alia “attaches a new disability, in respect to transactions

21 or considerations already past.” St. Cyr, 533 U.S. at 321, 321 n.46 (quotation

22 omitted) (such an effect is “sufficient” to find impermissible retroactivity).

23

The rule applies with particular strength when, as here, the government

24 attempts to impose adverse consequences on the basis of past events that the

25 government itself induced. See id. at 323 (undocumented immigrants who pled

26 guilty to certain criminal offenses in “almost certain[] reli[ance]” upon government

27 representation that it would exercise discretion to waive their deportation could not

28 be subject to deportation by later-enacted statute which eliminated such waivers);

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1 see also Cox v. Louisiana, 379 U.S. 559, 569-570 (1965) (overturning conviction

2 where a party reasonably relied on the government’s own representations about the

3 lawfulness of the conduct); cf. Watkins v. U.S. Army, 875 F.2d 699, 708 (9th Cir.

4 1989) (holding that government was equitably estopped from discharging a gay

5 man from military service after it “acted affirmatively” to “admit[],” “retain[],” and

6 “promot[e]” him, and then encouraged the disclosure that it used to discharge him).

7

Scores of current transgender service members, including Plaintiffs,

8 identified themselves as transgender to their command in reliance upon the Open

9 Service Policy, (e.g., Fanning Decl., ¶ 53; James Decl., ¶ 35; Carson Decl., ¶ 33),

10 which expressly stated that it “is vital that you are open and honest with your

11 leadership when discussing the gender transition process,” and offered advice on

12 the “many ways to respectfully disclose your gender identity to your colleagues.”

13 (Sieff Decl., Ex. Q at 20; see also John Doe 1 Decl., ¶¶ 15-16, 19 (“I came out as

14 transgender only because the military had said that I would be allowed to continue

15 serving my country.”); Tate Decl., ¶¶ 17-18; Jane Doe Decl., ¶ 12). Now, in the

16 wake of the ban, Plaintiffs and others similarly situated face forced separation after

17 March 2018 as a result of that reliance. They will lose their jobs, their healthcare,

18 and the dignity of equal service. (See John Doe 1 Decl., ¶¶ 22-23; Jane Doe Decl.,

19 ¶¶ 15-22; Tate Decl., ¶¶ 21-29; John Doe 2 Decl., ¶¶ 30-39.)

20

Punishing Plaintiffs for their reliance on the military’s promise of inclusion

21 offends the “considerations of fairness” that the Due Process Clause protects.

22 Landgraf, 511 U.S. at 265. The ban’s effects—including loss of employment and

23 healthcare and the stigma of being discharged for their transgender status—are no

24 less offensive than the manifest “unfairness” found impermissible in St. Cyr, in

25 which the Supreme Court held that undocumented immigrants who pled guilty,

26 “[r]elying on the settled practice” that they would be eligible for deportation

27 waivers, could not be deported after the Attorney General’s discretion to issue

28 those waivers was eliminated. 533 U.S. at 323. The injustice in this case is even

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1 more pronounced, because transgender service members came out not just in

2 reliance on a promise that they would be eligible for a discretionary benefit (i.e. the

3 possibility of no penalty), but in reliance on the express promise that doing so

4 would not invite any penalty at all. (See Sieff Decl., Exs. D, Q)

5

This anti-retroactivity component of the due process guarantee is “deeply

6 rooted” in our constitutional tradition, and is intended to protect against precisely

7 this sort of “vindictive” policymaking. Landgraf, 511 U.S. at 266-67 (“political

8 pressures pose[] a risk” that retroactive public policies will be used “as a means of

9 retribution against unpopular groups . . .”). The ban violates due process on this

10 account, as well; Plaintiffs are likely to succeed on their due process claim.

11

3. The Ban Violates Plaintiffs’ First Amendment Rights.

12

Plaintiffs also are likely to succeed on their First Amendment claim because

13 the ban impermissibly restricts speech based on its content by barring transgender

14 people who are open about who they are from serving in the military. As a result,

15 they cannot demonstrate by their example that transgender people are fit to serve or

16 advocate for their own equal treatment. Speech by which a person communicates a

17 personal characteristic such as the person’s race, religion, national origin, sexual

18 orientation, or gender is protected by the First Amendment. See U.S. CONST.

19 amend. I; Log Cabin Republicans v. United States, 716 F. Supp. 2d 884, 924 (C.D.

20 Cal. 2010) (holding that expressions of gay or lesbian identity suppressed by

21 military’s “Don’t Ask, Don’t Tell” policy were protected by the First

22 Amendment), vacated on other grounds as moot, 658 F.3d 1162 (9th Cir. 2011);

23 Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1279, 1284-85 (D. Utah 1998) (coming

24 out as gay or lesbian to an employer is protected expression); Gay Students Org. of

25 Univ. of N.H. v. Bonner, 509 F.2d 652, 659 (1st Cir. 1974) (First Amendment

26 protects gay students’ public identification as such at social events).

27

Courts have long recognized that being able to “come out”—i.e., to

28 communicate one’s identity to others—is essential for individuals in minority

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1 groups that have experienced a history of legal and social discrimination to gain

2 social acceptance, and to advocate for their own legal and political equality. Gay

3 Law Students Ass’n v. Pac. Tel. & Tel. Co., 24 Cal. 3d 458, 489 (Cal. 1979)

4 (coming out to employer a form of political freedom); cf. Fricke v. Lynch, 491 F.

5 Supp. 381, 385 (D.R.I. 1980) (gay student’s open attendance at prom protected by

6 First Amendment). A government policy that penalizes individuals for engaging in

7 such expression—like the ban here—thus threatens core First Amendment values

8 and restricts the most highly protected kind of First Amendment speech.

9

Policies of this kind, including in the military context, may be upheld only if

10 the restriction is narrowly tailored to serve a compelling state interest. See, e.g.,

11 Weaver, 29 F. Supp. 2d at 1286. Even in the military context, a service member’s

12 speech may not be regulated on the basis of its content. See Cornelius v. NAACP

13 Legal Def. & Educ. Fund, 473 U.S. 788, 806 (1985); Nieto v. Flatau, 715 F. Supp.

14 2d 650, 655 (E.D.N.C. 2010) (“[R]egulations that selectively grant safe passage to

15 speech of which officials approve while curbing speech of which they disapprove

16 are impermissible, even in the military.”) (citation omitted).

17

A threat of involuntary separation or denial of the ability to enlist “would

18 chill or silence a person of ordinary firmness,” from continuing to express his or

19 her transgender identity. Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283,

20 1300 (9th Cir. 1999) (citation omitted); (see John Doe 1 Decl., ¶19). Plaintiffs face

21 a “realistic danger of sustaining a direct injury as a result of the [ban’s] operation

22 or enforcement.” Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010). The ban

23 already has caused some service members to conceal their transgender identities.

24 (See Zbur Decl., ¶ 4 (certain transgender service members have “opted not to come

25 out for fear of retribution and separation); see also John Doe 1 Decl., ¶19.)

26

These restrictions on protected speech cause serious harms that implicate

27 core First Amendment values. Under the Open Service Policy, Plaintiffs are able

28 to let their peers and command know that they are transgender. That open

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1 communication has been critical to breaking down social barriers and false

2 stereotypes. It has enabled military leaders and troops to become familiar with

3 transgender people and to see that they are just as capable of meeting the same

4 military standards and serving honorably as others. (See Tate Decl., ¶¶ 19-20, 30;

5 Jane Doe Decl., ¶¶ 13-14; John Doe 1 Decl., ¶¶ 17, 24; John Doe 2 Decl., ¶¶ 20,

6 27; see also Fanning Decl., ¶¶ 53-55.) The ban restricts this communication,

7 forcing transgender service members to conceal their transgender identity and

8 preventing them from communicating these positive messages by their example of

9 open service. Just as harmfully, it also prevents transgender individuals who are in

10 the military from discussing their experiences or needs and from advocating for

11 their own equal treatment. In addition, by preventing transgender service members

12 from openly identifying themselves as such while they are serving, it prevents the

13 public from learning that transgender people are just as committed to serving our

14 country and just as capable of doing so as others—thereby depriving transgender

15 persons of one of the most powerful political tools for seeking legal and social

16 equality as equal members of our society.

17

The ban cannot survive any level of First Amendment review, much less the

18 heightened review required here. There is no legitimate governmental interest, let

19 alone a compelling or even a substantial one, in prohibiting transgender individuals

20 from disclosing their gender identity or their transgender status. To the contrary,

21 the ban undermines military effectiveness by forcing transgender service members

22 to hide a core aspect of their identity from their peers, thereby undermining the

23 bonds of trust and solidarity that are essential to building unit cohesion. (See

24 Mullen Decl., ¶ 12 (“Just as gay and lesbian soldiers should not have to lie about

25 who they are to serve, nor should transgender soldiers.”); see also Mabus Decl.,

26 ¶ 42 (“Units become closer when individual service members are respected for

27 who they are.”); Tate Decl., ¶ 19; Jane Doe Decl., ¶ 14; John Doe 1 Decl., ¶ 24;

28 John Doe 2 Decl., ¶¶ 18, 20-21, 24.)

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1

In sum, because there is no legitimate government interest to support the

2 ban, see supra § III.A.1.c, Plaintiffs are likely to succeed on the merits of their

3 First Amendment claim.

4

B. Absent an Injunction, Plaintiffs Will Suffer Irreparable Harm.

5

Absent preliminary relief, Plaintiffs will suffer ongoing and irreparable harm

6 as a result of the ban. Irreparable harm has “traditionally [been] defined as harm

7 for which there is no adequate legal remedy, such as an award of damages.” Ariz.

8 Dream Act Coal., 757 F.3d at 1068 (holding loss of opportunity to pursue a

9 plaintiff’s chosen profession constituted irreparable harm); see also Small v. Avanti

10 Health Sys., LLC, 661 F.3d 1180, 1191 (9th Cir. 2011) (a plaintiff “need not prove

11 that irreparable harm is certain or even nearly certain,” but must demonstrate only

12 a “likelihood” of irreparable harm). That standard is easily satisfied in this case.

13

Here, Plaintiffs seek redress for serious constitutional violations. The

14 asserted violations of Plaintiffs’ constitutional rights “unquestionably constitutes

15 irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (holding the loss of

16 constitutional freedoms constitutes irreparable harm); see also Monterey Mech. Co.

17 v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (holding that an equal protection

18 violation constitutes irreparable harm).

19

First, the ban brands Plaintiffs unfit to serve merely because they are

20 transgender. Those Plaintiffs currently in the military have served honorably and

21 with distinction for many years. The August 25 Memorandum formalizing the ban

22 harms them by stating that, despite their record of positive service, military policy

23 should be based on a presumption that transgender service members will “hinder

24 military effectiveness and lethality” and “disrupt unit cohesion.” (Sieff Decl., Ex.

25 G.) In a setting in which fellow soldiers necessarily rely on each other—at times

26 for their lives—such disparaging statements by the Commander-in-Chief

27 undermine the trust and confidence that others place in them. (See Tate Decl., ¶

28 23; Jane Doe Decl., ¶ 23; John Doe 1 Decl., ¶ 24; John Doe 2 Decl., ¶ 33.)

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1

The ban’s casting of transgender service members as presumptively deficient

2 (hindering “military effectiveness”) and dangerous (hindering “lethality” and

3 disrupting “unit cohesion) deprives Plaintiffs of their equal dignity and status as

4 capable and highly qualified current and prospective service members. See, e.g.,

5 Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078, 1084 (N.D. Cal. 1997)

6 (“Injuries to individual dignity and deprivations of civil rights constitute

7 irreparable injury.”); Majors v. Jeanes, 48 F. Supp. 3d 1310, 1315 (D. Ariz. 2014)

8 (finding irreparable harm on the basis of denial of dignity and status); see also

9 Chalk v. U.S. Dist. Court Cent. Dist. Of Cal., 840 F.2d 701, 709-10 (9th Cir. 1988)

10 (school’s reassignment of teacher diagnosed with AIDS caused irreparable harm,

11 because “[s]uch non-monetary deprivation is a substantial injury”); Cooney v.

12 Dalton, 877 F. Supp. 508, 515 (D. Haw. 1995) (irreparable harm from

13 “brand[ing]” plaintiff as a drug user); see also Mullen Decl., ¶¶ 12-15. In effect,

14 the ban relegates transgender service members and potential service members to an

15 inferior class, stigmatizing them in ways that will cause harm in virtually every

16 aspect of their lives, including their ability to obtain civilian employment and to be

17 seen and interact with others as equal members of our society.

18

Second, the ban significantly compromises or altogether eliminates

19 Plaintiffs’ career prospects within the military, and imposes serious personal and

20 financial hardships on Plaintiffs. (Tate Decl., ¶¶ 24-28; Jane Doe Decl., ¶¶ 17-22;

21 John Doe 1 Decl., ¶¶ 20-23; John Doe 2 Decl., ¶¶ 31-38.) As the Ninth Circuit has

22 held, “diminished. . . opportunity to pursue [one’s] chosen profession. . .

23 constitutes irreparable harm.” Ariz. Dream Act Coal., 757 F.3d at 1068; see also

24 Chalk, 840 F.2d at 709-10. Moreover, those Plaintiffs who had dreamed of serving

25 in the military and, in fact, had taken concrete steps to do so, face irreparable harm

26 as the ban expressly prohibits them from enlisting. (Stockman Decl., ¶¶ 15-17;

27 Talbott Decl., ¶¶ 17, 19; Reeves Decl., ¶ 13.) Where, as here, plaintiffs are at the

28 very beginning of their adult working lives and in a “fragile socioeconomic

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1 position,” the irreparable nature of their injury is heightened. Ariz. Dream Act

2 Coal, 757 F.3d at 1068.

3

Third, the ban compromises the health care coverage provided to Plaintiffs

4 and their families. Those currently serving Plaintiffs face the loss of health care

5 for themselves and their families when the ban takes effect in March 2018,

6 rendering them ineligible for continued service. For any Plaintiffs who may

7 remain beyond that date, the August 25 Memorandum expressly limits the health

8 care services they will be provided for gender transition-related health care. This

9 loss of health care constitutes irreparable injury. See Diaz, 656 F.3d at 1010 10 (affirming finding that plaintiffs would likely suffer irreparable harm if health

11 coverage was ceased); UAAIW Local 645, AFL-CIO v. Gen. Motors Assembly Div.,

12 1982 WL 2028, at *2 (C.D. Cal. Oct. 29, 1982) (finding that the harm resulting

13 from the termination of health benefits will be irremediable).

14

For Plaintiffs, service in the military has been a calling and, for many, their

15 life’s work. They have constructed their lives and those of their families around

16 military service. Absent an order preliminarily enjoining its implementation, the

17 ban will continue to cause Plaintiffs irreparable harm.

18

C. An Injunction is in the Public Interest and the Balance of

19

Hardships Tips Sharply in Plaintiffs’ Favor. 3

20

“[B]oth the public interest and the balance of the equities favor a preliminary

21 injunction” where the government acts to deprive a plaintiff of his or her

22 constitutional rights. Ariz. Dream Act Coal., 757 F.3d at 1069.

23

24

25

3 In determining whether a preliminary injunction is appropriate, courts

26 ordinarily “balance the competing claims of injury and must consider the effect on

27

each party of the granting or withholding of the requested relief.” N. Cheyenne Tribe v. Norton, 503 F.3d 836, 843-44 (9th Cir. 2007). Where, as here, the

28

government is the opposing party, the balance of the hardships and the public interest are considered together. See Nken v. Holder, 556 U.S. 418, 435-36 (2009).

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1

Indeed, “it is always in the public interest to prevent the violation of a

2 party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.

3 2012), quoting Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th

4 Cir. 2002) (reversing denial of preliminary injunction). Where, as here, the

5 injunction sought merely seeks to end an unlawful practice, there can be no dispute

6 that the balance of hardships tips sharply in Plaintiffs’ favor. See Rodriguez v.

7 Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (the government “cannot suffer harm

8 from an injunction that merely ends an unlawful practice”).

9

In addition, as the Working Group already determined based on an

10 exhaustive review of the available evidence and relevant military policies, banning

11 transgender people from military service will degrade military readiness and

12 capabilities in contravention of the public interest. (See James Decl., ¶¶ 40-41

13 (“[B]anning current transgender service members from enlisting or serving in the

14 military will result in the loss of qualified recruits and trained personnel, reducing

15 readiness and operational effectiveness.”); Fanning Decl., ¶ 61 (“[C]ommanders

16 must now deal with the prospect that key personnel may not be able to continue

17 their service, thus impeding military readiness.”); Mabus Decl., ¶ 45 (“[B]anning

18 transgender service members will produce vacancies in the Services, creating an

19 immediate negative impact on readiness.”); Carson Decl., ¶ 31 (“Many military

20 units include transgender service members who are highly trained and skilled and

21 who perform outstanding work. Separating these service members will deprive our

22 military and our country of their skills and talents.”). The ban “erodes service

23 members’ trust in their command structure [that is] essential to the unit cohesion

24 and rapid response required to address unexpected crises or challenges.” (James

25 Decl., ¶ 43; see also Fanning Decl., ¶ 62 (“The President’s reversal of policy is

26 deeply harmful to morale because it impairs service members’ trust in their

27 command structure . . .”); Carson Decl., ¶ 33; Mabus Decl., ¶ 47-52.)

28

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1

The public interest is served by the continued service of highly capable

2 transgender service members, not by separating them at substantial expense.

3 Indeed, training of transgender service members “has required a significant

4 investment of taxpayer dollars, an investment whose return depends on their

5 continued service.” (Fanning Decl., ¶ 60.) And, in the event transgender service

6 members are separated, the loss of the investment in training them will be

7 compounded by the fact that the Armed Forces would be forced to incur additional

8 expenses recruiting and training their replacements. (See Carson Decl., ¶ 32;

9 Fanning Decl., ¶ 60; Mabus Decl., ¶ 45.)

10

Further, the serious and escalating harms to Plaintiffs if preliminary relief is

11 not granted are far more severe than any hardship to the government. If

12 implementation of the ban is not enjoined, those currently serving Plaintiffs will be

13 separated from the military in March 2018, losing their jobs, their benefits, and

14 their military community. Similarly, every day that goes by, those seeking to enlist

15 lose the opportunity to gain stable employment, accrue benefits, and benefit from

16 the unique training and leadership opportunities that military service provides.

17 (Stockman Decl., ¶¶ 15-17; Talbott Decl., ¶¶ 17, 19; Reeves Decl., ¶ 13.) The

18 longer that the ban remains in place, and as the March 23, 2018 implementation

19 date for those currently serving looms closer, Plaintiffs’ injuries deepen in ways

20 that cannot be remedied by a final judgment in their favor.

21

In contrast, an injunction imposes no hardship on Defendants. The

22 necessary policies and instructions regarding enlistment by transgender people

23 already have been prepared and the necessary trainings have taken place. (Tate

24 Decl., ¶ 20; John Doe 2 Decl., ¶ 23; Brown Decl., ¶ 68.) And, transgender people

25 already are serving openly and honorably. (Tate Decl., ¶ 19; Jane Doe Decl., ¶ 14;

26 John Doe 1 Decl., ¶¶ 24-25; John Doe 2 Decl., ¶¶ 20-21, 24; Fanning Decl., ¶ 53.)

27

The unsubstantiated “concerns” set forth in the August 25 Memorandum are

28 a far cry from those in other cases addressing issues of military readiness or

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1 national security. Compare Winter, 555 U.S. at 26 (holding that the balance of

2 equities and of the overall public interest weighed “strongly in favor of the Navy”

3 where the proposed injunction would “forc[e] the Navy to deploy an inadequately

4 trained antisubmarine force” and “jeopardize[] the safety of the fleet”), with Singh

5 v. Carter, 168 F. Supp. 3d 216, 219 (D.D.C. 2016) (distinguishing Winter on the

6 ground that injunctive relief “would not have an impact on the national defense or

7 the Army’s ability to protect our nation’s security”).

8

Because Plaintiffs are suffering serious and escalating harms, including

9 violations of their constitutional rights, and there is no plausible claim that

10 enjoining the ban will have any negative impact on military readiness or

11 effectiveness, a preliminary injunction is warranted.

12 IV. CONCLUSION

13

Each of the Winter factors warrants issuance of a preliminary injunction.

14 The ban on transgender military service inflicts harms that escape repair; and there

15 is no reason, equitable or otherwise, to justify its nakedly unconstitutional

16 deprivations of fundamental rights and liberties. Plaintiffs respectfully request a

17 preliminary injunction prohibiting its enforcement.

18 Dated: October 2, 2017

Respectfully submitted,

19

LATHAM & WATKINS LLP

20

Marvin S. Putnam Amy C. Quartarolo

21

Adam S. Sieff Harrison J. White

22

23

By /s/ Amy C. Quartarolo Amy C. Quartarolo

24 Attorneys for Plaintiffs Aiden Stockman,

25

Nicolas Talbott, Tamasyn Reeves, Jaquice

Tate, John Does 1-2, Jane Doe, and

26

Equality California

27

28

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 Case 5:17-cv-01799-JGB-KK Document 36 Filed 10/23/17 Page 1 of 43 Page ID #:1648

1 CHAD A. READLER

2

Acting Assistant Attorney General Civil Division

3 BRETT A. SHUMATE 4 Deputy Assistant Attorney General

5 JOHN R. GRIFFITHS Branch Director
6
ANTHONY J. COPPOLINO 7 Deputy Director

8 RYAN B. PARKER

9

ANDREW E. CARMICHAEL United States Department of Justice

10 Civil Division, Federal Programs Branch

11

Telephone: (202) 514-4336 Email: ryan.parker@usdoj.gov

12 Counsel for Defendants

13

UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15
AIDEN STOCKMAN, et al.,
16

17

Plaintiffs,

18

v.

19

DONALD J. TRUMP, et al.,

20
Defendants.
21

22

23

24

25

No. 5:17-cv-1799-JGB-KK

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS AND IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Hearing

Date:

November 20, 2017

Time:

9:00 a.m.

Courtroom: 1

26

27

28

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 5:17-cv-01799-JGB-KK Document 36 Filed 10/23/17 Page 2 of 43 Page ID #:1649

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that on November 20, 2017 at 9:00 a.m., or as soon

3 thereafter as possible in Courtroom 1 of the above-referenced court located at the George

4 E. Brown, Jr. Federal Building and United States Courthouse, 3470 Twelfth Street,

5 Riverside, CA 92501-3801, Defendants Donald J. Trump, et al., will, and hereby do, move

6 this Court to dismiss Plaintiffs’ Complaint for lack of jurisdiction and failure to state a

7 claim.

8

The Motion is based on this Notice of Motion and Motion; the accompanying

9 Memorandum of Points and Authorities; the supporting declarations; all pleadings and 10 papers filed in this action; and such additional papers, evidence, and argument as may be 11 presented at or in connection with the hearing. Defendants’ Memorandum of Points and 12 Authorities also serves as Defendants’ Opposition to Plaintiffs’ Motion for a Preliminary 13 Injunction.

14 Dated: October 23, 2017
15 16 17 18

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
BRETT A. SHUMATE Deputy Assistant Attorney General

19

JOHN R. GRIFFITHS

20

Branch Director

21

ANTHONY J. COPPOLINO Deputy Director

22

/s/ Ryan Parker

23

RYAN B. PARKER

ANDREW E. CARMICHAEL

24

United States Department of Justice

25

Civil Division, Federal Programs Branch

Telephone: (202) 514-4336

26

Email: ryan.parker@usdoj.gov

27

Counsel for Defendants

28

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 5:17-cv-01799-JGB-KK Document 36 Filed 10/23/17 Page 3 of 43 Page ID #:1650

1 TABLE OF CONTENTS
2 3 INTRODUCTION ........................................................................................................................................1
4 BACKGROUND ...........................................................................................................................................3

5

I. History of the Accessions Policy Regarding Transgender Individuals ...............................3

6

II. The President’s Memorandum and Plaintiffs’ Complaint ....................................................5

7

III. the Interim Guidance and Plaintiffs’ Request for Preliminary Injunction .........................7

8 STANDARD OF REVIEW FOR MOTION TO DISMISS ...............................................................11
9
ARGUMENT ................................................................................................................................................ 11 10

11

I. The Court Should Dismiss Plaintiffs’ Complaint for Lack of Jurisdiction ......................11

12

A. The Court’s Standing Inquiry Should Be Especially Rigorous....................................12

13

B. Plaintiffs Have Not Met Their Burden of Showing an Injury-in-Fact.......................13

14

C. Plaintiffs’ Claims Are Not Ripe for Adjudication .........................................................15

15

II. Plaintiffs’ Motion for a Preliminary Injunction Should Be Denied ..................................18

16

A. Plaintiffs Have Not Shown that They Are Likely to Suffer an Irreparable

17

Harm Absent the Entry of a Preliminary Injunction....................................................19

18

B. Plaintiffs Are Unlikely To Succeed on the Merits.........................................................20

19

1. Plaintiffs Have Not Challenged Defendants’ Operative Policy for

20

Enlisted Transgender Service Members, and any such Challenge Would

Fail to State an Equal Protection Claim...................................................................21

21

22

2. Plaintiffs’ Challenge to the Accession Policy is Unlikely to Succeed ..................22

23

3. In any Event, an Equal Protection Challenge to Defendants’

Longstanding Accession Policy Would Not Succeed............................................24

24

a. The Military’s Longstanding Accessions Policy is Subject to a Highly

25

Deferential Form of Review...............................................................................24

26

b. Plaintiffs are Unlikely to Succeed on Their Challenge to the Military’s

27

Longstanding Accessions Policy. .......................................................................28

28

4. Plaintiffs Are Unlikely To Succeed on Their Due Process Claim .......................31

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - i Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530

Case 5:17-cv-01799-JGB-KK Document 36 Filed 10/23/17 Page 4 of 43 Page ID #:1651

1 5. Plaintiffs Are Unlikely to Succeed on Their First Amendment Claim................34
2

3

C. The Balance of Equities and the Public Interest Weigh Strongly Against the Entry of a Preliminary Injunction ...........................................................................36

4 D. The Injunctive Relief Plaintiffs Seek Is Inappropriate ...............................................37
5
CONCLUSION ............................................................................................................................................39 6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - ii Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530

Case 5:17-cv-01799-JGB-KK Document 36 Filed 10/23/17 Page 5 of 43 Page ID #:1652

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

INTRODUCTION

3

Plaintiffs—four members of the military, three civilians, and an advocacy

4 organization—ask this Court to prejudge the constitutionality of a future Government policy

5 regarding military service by transgender individuals and issue the extraordinary relief of a

6 worldwide preliminary injunction. That challenge is premature several times over. To start,

7 the President issued a memorandum on August 25, 2017, setting forth his policy directive to

8 the Secretary of Defense and the Secretary of Homeland Security and ordering a further

9 study of policies concerning military service by transgender individuals. The President’s

10 memorandum states that no policy changes to the status quo will be effective until at least

11 March 2018. The President further directed the Secretary of Defense to determine how to

12 address transgender individuals currently serving in the military and that no action be taken

13 against such individuals until after a policy review is completed.

14

Although the Presidential Memorandum had no immediate effect on individual

15 service members, Plaintiffs filed this action on September 5, 2017. ECF No. 1. On

16 September 14, 2017, the Secretary of Defense issued Interim Guidance reaffirming that for

17 now, no current service member will be involuntarily separated, discharged, or denied

18 reenlistment solely on the basis of a gender dysphoria diagnosis or transgender status, and

19 service members who receive a gender dysphoria diagnosis from a military medical provider 20 will be provided treatment for the diagnosed medical condition. On October 2, 2017, 21 Plaintiffs moved for a preliminary injunction but failed to address the Secretary of Defense’s 22 Interim Guidance. Thus, neither the Complaint nor Plaintiffs’ motion address, let alone 23 challenge, the policy that is in effect today. 24 Nor do any of the Plaintiffs face a current or imminent threat of injury while the policy is 25 being studied. Plaintiffs allegedly fear being involuntarily separated from the military and 26 the loss of associated benefits, and the disruption of transition-related medical care. But 27 none of those alleged injuries are occurring, or will occur, under the Interim Guidance. 28 And beyond that, it is unclear whether the currently serving Plaintiffs will be affected by

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 1 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 5:17-cv-01799-JGB-KK Document 36 Filed 10/23/17 Page 6 of 43 Page ID #:1653

1 the future policy regarding service by transgender individuals once it is finalized and

2 implemented. Likewise Plaintiffs who have not applied for and been denied accession into

3 the military, which can be denied for any number of reasons unrelated to transgender

4 status, nor sought a medical waiver after being denied accession based on a history of

5 gender dysphoria or gender transition, have not been injured by the challenged policies,

6 much less irreparably so. Without such injury, Plaintiffs lack standing and their claims are

7 not ripe. The Court should dismiss this case for lack of jurisdiction.

8

Were the Court to address Plaintiffs’ preliminary injunction motion, it should deny

9 them the drastic relief they seek. To prevail on this motion, Plaintiffs must show that they

10 will suffer irreparable harm absent an injunction, they are likely to succeed on the merits, the

11 balance of equities tips in their favor, and an injunction is in the public interest. They have

12 not made any of those showings.

13

To start, for the same reasons this Court lacks jurisdiction, Plaintiffs cannot show that

14 they will suffer irreparable harm absent a preliminary injunction. The speculative harms they

15 believe may occur in the future, once the policy is formulated and implemented, cannot be

16 redressed at this stage.

17

Nor can Plaintiffs show that they are likely to succeed on the merits. Even if they

18 could somehow establish jurisdiction at this stage, the policy currently in place—which

19 maintains the status quo for transgender persons in the military—has not been challenged

20 and, in any event, is plainly lawful. And to the extent Plaintiffs assail the President’s directive

21 to study the questions at issue and develop a new policy in accordance with his

22 memorandum, they likewise have no meritorious claim. Plaintiffs cannot show a likelihood

23 of success on their equal protection, due process, or First Amendment claims given that the

24 Defense Department has not completed its review or adopted a final policy.

25

Even if Plaintiffs could challenge the military’s longstanding accession policy, that

26 challenge would fail because the policy withstands the highly deferential review required

27 here. Federal courts owe the utmost deference to the political branches in the field of

28 national defense and military affairs, because the Constitution commits military decisions

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 2 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 5:17-cv-01799-JGB-KK Document 36 Filed 10/23/17 Page 7 of 43 Page ID #:1654

1 exclusively to those branches and because courts “have less competence” to second-guess

2 military decision-making. Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Decisions concerning the

3 composition of a military force and the requisite conditions attendant to military service are

4 at the core of these constitutionally committed powers.

5

Finally, the balance of equities and the public interest weigh against injunctive relief.

6 While Plaintiffs are suffering no injury during the interim period while the policy is being

7 examined—and may never be injured by the policy finally adopted—the Government is

8 convening a panel of experts to study the policy, analyze the data, and provide

9 recommendations. The public interest obviously would be harmed if an injunction precluded

10 the President and Secretary of Defense from receiving expert advice on important issues of

11 military personnel policy and acting in light of the results of that study. And even if Plaintiffs

12 somehow hurdle every problem with their challenge, there is no basis for the worldwide

13 injunction against the military they request.

14

BACKGROUND

15 I. History of the Accessions Policy Regarding Transgender Individuals

16

The U.S. military has long required individuals to satisfy rigorous standards in order

17 to serve. The military presumptively excludes individuals who suffer from particular physical

18 and mental conditions, although individualized waivers may be available. DOD Instruction

19 6130.03 at 7 (Apr. 28, 2010) (DODI 6130.03). These exclusions are necessary to ensure, inter

20 alia, that service members are “capable of performing duties,” free of conditions that “may

21 require excessive time lost from duty for necessary treatment or hospitalization,” and

22 “adaptable to the military environment without the necessity of geographical area

23 limitations.” Id. at 2.

24

For decades, these conditions have included “transsexualism.” Id. at 48; see also, e.g.,

25 DOD Directive 6130.3 at ¶ 2–34(b) (Mar. 31, 1986) (“[t]ranssexualism and other gender

26 identity disorders”); Army Regulation 40–501 at ¶ 6–32(b) (May 17, 1963) (“behavior

27 disorders[] as evidenced by … transvestism”). This condition, like others, is subject to a

28 waiver process. Under DODI 6130.03, the military shall “[a]uthorize the waiver of the

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 3 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 5:17-cv-01799-JGB-KK Document 36 Filed 10/23/17 Page 8 of 43 Page ID #:1655

1 standards [for entry] in individual cases for applicable reasons and ensure uniform waiver

2 determinations,” and service-specific implementing rules set forth the process for each

3 branch, see, e.g., Army Reg. 40-501, Standards of Medical Fitness at ¶ 1-6(b).

4

In July 2015, former Secretary of Defense Ashton Carter ordered the creation of a

5 working group “to study … the policy and readiness implications of welcoming transgender

6 persons to serve openly” and instructed the group to “start with the presumption that

7 transgender persons can serve openly without adverse impact on military effectiveness and

8 readiness.” Statement by Former Secretary of Defense Ash Carter, Release No. NR-272-

9 15.1 The Defense Department also commissioned the RAND Corporation to study the

10 matter, which in turn issued a report concluding that the proposed policy change would

11 impose burdens on the military, but that such costs were “negligible” or “marginal.” RAND

12 Report 33, 46, 69, 70.2

13

On June 30, 2016, former Secretary Carter issued a directive setting forth a new policy

14 on service by transgender individuals. Defense Department Directive-Type Memorandum

15 (“DTM”) 16-005.3 The directive allowed transgender individuals currently in the military to

16 begin serving openly and authorized the Departments of Defense and Homeland Security to

17 fund sex-reassignment surgeries. Id. It also ordered the revision of the military’s accession

18 policy by July 1, 2017. Id. That revision would provide that a history of “gender dysphoria,”

19 “medical treatment associated with gender transition,” or “sex reassignment or genital

20 reconstruction surgery” were all presumptively “disqualifying.” Id. Under the proposed

21 revision, however, the applicant could overcome that presumption by proving that: (i) in the 22 case of gender dysphoria, he had “been stable without clinically significant distress or

23

24 1 Statement by Former Secretary of Defense Ash Carter, Release No. NR-272-15, is available

online at: https://www.defense.gov/News/News-Releases/News-Release-View/ 25 Article/612778/statement-by-secretary-of-defense-ash-carter-on-dod-transgender-policy/ (last

26

visited Oct. 23, 2017). 2 The RAND Report is available online at: https://www.rand.org/pubs/research_reports/RR1530.

27 html (last visited Oct. 23, 2017). 3 Defense Department Directive-Type Memorandum 16-005 is available online at: https://www.

28 defense.gov/Portals/1/features/2016/0616_policy/DTM-16-005.pdf (last visited Oct. 23, 2017).

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 4 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 5:17-cv-01799-JGB-KK Document 36 Filed 10/23/17 Page 9 of 43 Page ID #:1656

1 impairment in social, occupational, or other important areas of functioning for 18 months”;

2 (ii) in the case of a medical gender transition, he had completed all medical treatment and

3 had “been stable in the preferred gender for 18 months”; and (iii) in the case of surgery, he

4 had waited 18 months since the operation and “no functional limitations or complications

5 persist, nor is any additional surgery required.” Id.

6

On June 30, 2017, Secretary of Defense James Mattis extended the deadline for

7 revising the accession policy by six months, until January 1, 2018. Department of Defense,

8 Release No. NR-250-17 (June 30, 2017).4 Nearly a month later, on July 26, 2017, the

9 President stated on Twitter that “the United States Government will not accept or allow

10 transgender service members to serve in any capacity in the U.S. military,” citing the “medical

11 costs and disruption that transgender in the military would entail.” ECF No. 1 at ¶ 36.

12 II. The President’s Memorandum and Plaintiffs’ Complaint

13

On August 25, the President issued a memorandum to the Secretaries of Defense and

14 Homeland Security regarding military service by transgender individuals. Presidential

15 Memorandum, 82 FR 41319. The Presidential Memorandum explains that, until June 2016,

16 longstanding policy and practice “generally prohibited openly transgender individuals from

17 accession into the United States military and authorized the discharge of such individuals.”

18 Id. § 1. In his role as Commander in Chief, the President found that former Secretary Carter

19 had failed to identify a sufficient basis to conclude that ending these longstanding policies

20 “would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military

21 resources.” Id. Accordingly, he determined, “further study is needed to ensure that

22 implementation of last year’s policy change would not have those negative effects.” Id.

23

The President directed the military to maintain its longstanding policies and practices

24 regarding transgender service that were in place before June 2016. Those policies would

25 remain until there existed a sufficient basis to conclude that ending them would not cause

26
27 4 The Department of Defense Release is available online at: https://www.defense.gov/News/NewsReleases/News-Release-View/Article/1236145/statement-by-chief-pentagon-spokesperson-dana-
28 w-white-on-transgender-accessions/ (last visited Oct. 23, 2017).

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 5 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 5:17-cv-01799-JGB-KK Document 36 Filed 10/23/17 Page 10 of 43 Page ID #:1657

1 the harms identified by the President. The President also stated that the Secretary of

2 Defense, in consultation with the Secretary of Homeland Security, should advise him at any

3 time if a policy change is warranted. Id. § 1(b).

4

The President then directed the Secretaries of Defense and Homeland Security to

5 maintain the current policy regarding accession of transgender individuals into the military

6 beyond January 1, 2018—when the revision announced in June 2016 was set to take effect—

7 until such time as the Secretary of Defense, in consultation with the Secretary of Homeland

8 Security, provides a recommendation to the contrary that the President finds convincing. Id.

9 § 2(a). The President also directed the Departments of Defense and Homeland Security to

10 halt the use of resources to fund sex-reassignment surgical procedures for military personnel,

11 except to the extent necessary to protect the health of an individual who has already begun

12 a course of treatment to reassign his sex. Id. § 2(b).

13

Other than the provision regarding accessions, the Memorandum’s provisions take

14 effect on March 23, 2018. This delayed implementation date was adopted so that the two

15 Cabinet Secretaries can study the issues addressed in the Memorandum and submit an

16 implementation plan to the President by February 21, 2018. Id. § 3.

17

The Memorandum also addresses currently serving transgender individuals. It

18 provides that “[a]s part of the implementation plan, the Secretary of Defense, in consultation

19 with the Secretary of Homeland Security, shall determine how to address transgender

20 individuals currently serving in the United States military.” Id. And, “[u]ntil the Secretary

21 has made that determination, no action may be taken against such individuals under the

22 policy set forth in Section 1(b) of this memorandum.” Id.

23

On August 29, 2017, Secretary Mattis issued a statement explaining that the

24 Department of Defense had received the Presidential Memorandum and would develop a

25 study and implementation plan. Statement of Secretary Jim Mattis, Release No: NR-312-17.5

26
27 5 The August 29, 2017 Statement of Secretary Jim Mattis, Release No: NR-312-17, is available online at: https://www.defense.gov/News/News-Releases/News-Release-View/Article/1294351/
28 (last visited on Oct. 23, 2017).

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 6 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 5:17-cv-01799-JGB-KK Document 36 Filed 10/23/17 Page 11 of 43 Page ID #:1658

1 Secretary Mattis promised to “establish a panel of experts serving within the Departments

2 of Defense and Homeland Security to provide advice and recommendations on the

3 implementation of the president’s direction.” Id. According to Secretary Mattis, the “[p]anel

4 members will bring mature experience, most notably in combat and deployed operations,

5 and seasoned judgment to this task,” and “will assemble and thoroughly analyze all pertinent

6 data, quantifiable and non-quantifiable.” Id. Secretary Mattis also stated that he expected to

7 issue interim guidance on the issue of service by transgender individuals “to ensure the

8 continued combat readiness of the force until our final policy on this subject is issued.” Id.

9

Although the Presidential Memorandum had no immediate effect on individual

10 service members, Plaintiffs filed this action on September 5, 2017. ECF No. 1. Plaintiffs

11 alleged that the President’s Memorandum violated their equal protection, due process, and

12 First Amendment rights under the Constitution. Id.

13 III. The Interim Guidance and Plaintiffs’ Request for Preliminary Injunction

14

On September 14, 2017, Secretary Mattis issued Interim Guidance regarding military

15 service by transgender individuals.6 The Interim Guidance states, “first and foremost,” that

16 the military7 “will continue to treat every Service member with dignity and respect.” Interim

17 Guidance, supra n.6. It then confirms that the military’s longstanding accessions policy,

18 “which generally prohibit[s] the accession of transgender individuals into the Military

19 Services, remain[s] in effect because current or history of gender dysphoria or gender

20 transition does not meet medical standards.” Id. It emphasizes, however, that this

21 “general[]” prohibition remains “subject to the normal waiver process.” Id.

22

The Interim Guidance also addresses potential harms alleged by the Plaintiffs who

23 are current service members. On the issue of involuntary discharges, it states that “no action

24 may be taken to involuntarily separate or discharge an otherwise qualified Service member

25

26

6 Secretary Mattis’s September 14, 2017 Memorandum and the accompanying Interim Guidance are available at: https://www.defense.gov/Portals/1/Documents/PDFs/Military-Service-By-

27 Transgender-Individuals-Interim-Guidance.pdf (last visited October 23, 2017).

7 By agreement with the Acting Secretary of Homeland Security, the Interim Guidance also applies

28 to the U.S. Coast Guard. Mattis Memorandum, September 14, 2017, supra n.6.

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 7 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 5:17-cv-01799-JGB-KK Document 36 Filed 10/23/17 Page 12 of 43 Page ID #:1659

1 solely on the basis of a gender dysphoria diagnosis or transgender status.” Id. The Interim

2 Guidance also addresses reenlistment into military service, providing that “[a]n otherwise

3 qualified transgender Service member whose term of service expires while this Interim

4 Guidance remains in effect, may, at the Service member’s request, be reenlisted in service

5 under existing procedures.” Id. Finally, it directs that “Service members who receive a

6 gender dysphoria diagnosis from a military medical provider will be provided treatment for

7 the diagnosed medical condition.” Id.

8

Rather than amend their Complaint to address the operative policy, Plaintiffs filed a

9 motion for preliminary injunction. See ECF No. 15. However, Plaintiffs’ motion does not

10 even mention the Interim Guidance much less explain why the guidance does not address

11 their claims of irreparable harm. Their current complaint and motion for a preliminary

12 injunction therefore fail to address the current state of the Government’s policy regarding

13 military service by transgender individuals. Instead Plaintiffs’ motion relies almost entirely

14 on speculation that the currently serving Plaintiffs will be discharged from the military and

15 are suffering stigmatic injures untethered to any actual adverse effects and speculation that

16 the civilian Plaintiffs will be denied accession solely based on their transgender status and

17 will be unable to obtain a medical waiver under the operative Department of Defense

18 instruction. Such speculative injuries cannot serve as the basis for standing much less an

19 irreparable injury. This is true for each of the seven individual Plaintiffs as well as the

20 organizational Plaintiff suing on their behalf. Under current policy, not one of the individual

21 Plaintiffs has been discharged from the military, denied re-enlistment, refused health care by

22 the military, or denied accession to the military.

23

Plaintiff Aiden Stockman is a transgender civilian who currently resides in California.

24 ECF No. 1 ¶ 10. In June 2014, Mr. Stockman began hormone replacement therapy. Id. Mr.

25 Stockman has made plans to complete a double-mastectomy and hopes to enlist in the Air

26 Force thereafter. Id. Mr. Stockman does not claim to have attempted to enlist in the Air

27 Force or sought a medical waiver, in accordance with the procedures of DoDI 6130.03, and

28

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 8 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 5:17-cv-01799-JGB-KK Document 36 Filed 10/23/17 Page 13 of 43 Page ID #:1660

1 the Air Force has no record of him doing so. See id.; Declaration of Phillip A. Layman

2 (“Layman Decl.”).8

3

Plaintiff Nicholas Talbott is a transgender civilian who currently resides in Ohio and

4 wishes to join the Air Force National Guard. ECF No. 1 ¶ 11. Mr. Talbot alleges that he

5 met with a recruiter in December 2016 and filled out paperwork confirming his interest in

6 acceding into the military. Id. He further alleges that the recruiter asked Mr. Talbot to obtain

7 a letter from his doctor confirming that being transgender did not have any adverse effects

8 on his life or ability to perform military-related duties. Id. He also alleges that the recruiter

9 told him the next steps would be to meet with the regional Military Entrance Processing

10 Station for a physical exam and to take the Armed Services Vocational Aptitude Battery test.

11 Id. He does not allege that he completed these additional steps, submitted an application for

12 accession and was denied, or sought a medical waiver under the procedures detailed in DoDI

13 6130.03.

14

Plaintiff Tamasyn Reeves is a transgender civilian who currently resides in California.

15 ECF No. 1 ¶ 12. At the age of 23, Ms. Reeves began hormone replacement therapy. Id. Ms.

16 Reeves alleges that she tried to join the Navy in 2010 and was told that she was not eligible

17 to enlist. Id. She further alleges that she decided to enlist as soon as the final procedures for

18 accession of transgender individuals were solidified. Id. She does not allege that she

19 submitted an application for accession and was denied or sought a medical waiver under the

20 procedures detailed in DoDI 6130.03.

21

Plaintiff Sergeant (SGT) Jaquice Tate serves in the U.S. Army and revealed his

22 transgender status to military personnel in 2016. ECF No. 1 ¶ 13. SGT Tate alleges that he

23 fears that he will be discharged and will lose the retirement benefits associated with active

24 duty service. Id. But Defendants have submitted a declaration from SGT Tate’s company

25 commander noting that, under the Interim Guidance, he will not be discharged from the

26

27 8 In this memorandum and related documents, the Government uses Plaintiffs’ choice of pronouns
28 for purposes of consistency and for the convenience of the Court.

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 9 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 5:17-cv-01799-JGB-KK Document 36 Filed 10/23/17 Page 14 of 43 Page ID #:1661

1 military based on his transgender status. See Declaration of Captain (CPT) John Kareta

2 (Kareta Decl.) ¶ 3.

3

Plaintiff John Doe 1 serves in the U.S. Air Force and revealed his transgender status

4 in April 2017. ECF No. 1 ¶ 15. John Doe 1 alleges that he fears that he will be discharged

5 from the Air Force and that he will be precluded from obtaining promotions and further

6 advancing his career in the Air Force. But under the Interim Guidance, service members

7 cannot be separated on the basis of transgender status, and transgender service members,

8 like John Doe 1, are subject to the same standards as any other service member of the same

9 gender. Interim Guidance, supra n.6.

10

Plaintiff John Doe 2 serves in the U.S. Army and revealed his transgender status

11 sometime after June 2016. ECF No. 1 ¶ 16. John Doe 2 alleges that he fears that he will be

12 discharged from the Army and will lose benefits associated with active duty service. Id. But

13 Defendants have submitted a declaration from the Acting Assistant Secretary of the Army

14 (Manpower and Reserve Affairs) explaining that, under the Interim Guidance, John Doe 2

15 will not be discharged from the military based on his transgender status. See Declaration of

16 Raymond Horoho (Horoho Decl.) ¶ 3.

17

Plaintiff Jane Doe serves in the U.S. Air Force and revealed her transgender status

18 sometime after June 2016. ECF No. 1 ¶ 17. Jane Doe alleges that she fears that she will be

19 discharged from the Air Force, will lose benefits associated with active duty service and her

20 ability to obtain promotions will be compromised. Id. But under the Interim Guidance,

21 service members cannot be separated on the basis of transgender status, and transgender

22 service members, like Jane Doe, are subject to the same standards as any other service

23 member of the same gender. Interim Guidance, supra n.6.

24

Plaintiff Equality California sues on behalf of its members which “include transgender

25 individuals in active military service, transgender military veterans, and transgender

26 individuals who have taken steps to serve[.]” ECF No. 1 ¶ 18. Equality California does not

27 assert any injuries in its own right.

28

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 10 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
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1

STANDARD OF REVIEW FOR MOTION TO DISMISS

2

When a defendant brings a Rule 12(b)(1) motion, the plaintiff has the burden of

3 establishing subject matter jurisdiction. See Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1102 n.1

4 (9th Cir. 2007) (“Once challenged, the party asserting subject matter jurisdiction has the

5 burden of proving its existence.”). “A Rule 12(b)(1) jurisdictional attack may be facial or

6 factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack,

7 the challenger asserts that the allegations contained in a complaint are insufficient on their

8 face to invoke federal jurisdiction,” id., and “the court assumes the factual allegations in the

9 complaint are true and draws all reasonable inferences in the plaintiff’s favor,” City of Los

10 Angeles v. Wells Fargo & Co., 22 F. Supp. 3d 1047, 1052 (C.D. Cal. 2014). “By contrast, in a

11 factual attack, the challenger disputes the truth of the allegations that, by themselves, would

12 otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. In resolving a

13 factual attack, district courts “may review evidence beyond the complaint without converting

14 the motion to dismiss into a motion for summary judgment” and “need not presume the

15 truthfulness of the plaintiff's allegations.” Id.

16

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of claims alleged in the

17 complaint. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal

18 is proper “where there is no cognizable legal theory or an absence of sufficient facts alleged

19 to support a cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

20 The complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to

21 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

22 Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

23

ARGUMENT

24 I. The Court Should Dismiss Plaintiffs’ Complaint for Lack of Jurisdiction

25

Plaintiffs’ claims should be dismissed for two reasons. First, Plaintiffs neither have

26 suffered an injury that could establish standing nor face an imminent threat of future injury.

27 Second, and in the alternative, their claims are unripe, as the issues presented are not fit for

28 judicial decision, no actual discharge or denial of accession has occurred, and Plaintiffs will

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 11 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 not suffer a hardship if the Court withholds consideration until after the challenged policies

2 are implemented and are found to affect Plaintiffs.

3

A. The Court’s Standing Inquiry Should Be Especially Rigorous

4

Article III of the Constitution confines federal courts to adjudicating only “actual

5 cases and controversies.” Allen v. Wright, 468 U.S. 737, 750 (1984) abrogated on other grounds by

6 Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014). Accordingly, federal

7 courts have “neither the power to render advisory opinions nor to decide questions that

8 cannot affect the rights of litigants in the case before them,” and must resolve only “real and

9 substantive controvers[ies] admitting of specific relief through a decree of a conclusive

10 character.” Preister v. Newkirk, 422 U.S. 395, 401 (1975).

11

One aspect of this case-or-controversy limitation is the requirement of standing. To

12 establish standing, Plaintiffs (1) must have suffered an injury-in-fact, i.e., a judicially

13 cognizable injury that is “concrete and particularized” and “actual or imminent, not

14 conjectural or hypothetical;” (2) the injury must be “fairly … trace[able] to the challenged

15 action of the defendant;” and (3) “it must be likely, as opposed to speculative, that the injury

16 will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61

17 (1992) (alterations in original).

18

To satisfy the first requirement, Plaintiffs must establish they have suffered a “distinct

19 and palpable injury,” Warth v. Seldin, 422 U.S. 490, 500–01 (1975); a “generally available 20 grievance about government” is insufficient. Lujan, 504 U.S. at 573–74. By limiting the 21 judicial power to instances where specific individuals have suffered concrete injuries, 22 standing requirements “serve[] to prevent the judicial process from being used to usurp the 23 powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). A 24 court’s standing inquiry thus should be “especially rigorous when reaching the merits of the 25 dispute” would compel it “to decide whether an action taken by one of the other two 26 branches of the Federal Government was unconstitutional.” Id. Here, Plaintiffs have 27 brought a constitutional challenge to the President’s policy directive to conduct further study 28 before the military changes its longstanding policies regarding service by transgender

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 12 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
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1 individuals. The Court thus should conduct an “especially rigorous” inquiry into the

2 existence of standing. Id.

3

B. Plaintiffs Have Not Met Their Burden of Showing an Injury-in-Fact

4

Each of the Plaintiffs bears the burden of establishing that they have standing in their

5 own right to pursue their claims. Ellis v. City of La Mesa, 990 F.2d 1518, 1523 (9th Cir. 1993)

6 (“To have standing to bring this lawsuit in federal court, each plaintiff must show that he

7 personally has suffered some actual or threatened injury as a result of the putatively illegal

8 conduct of the defendant.”). None of the Plaintiffs have standing and at the very least, they

9 have brought this action prematurely.

10

Plaintiffs allege three categories of injuries. First, they allege that they have been

11 harmed by a stigma resulting from allegedly unconstitutional discrimination. See ECF No.

12 15 at 30-31. But that sort of stigmatic injury “accords a basis for standing only to those

13 persons who are personally denied equal treatment.” Allen, 468 U.S. at 755. Because

14 Plaintiffs have not shown that they themselves have been subject to discriminatory treatment,

15 they cannot rely upon a claim of stigmatic injury. Instead, “stigmatic injury… requires

16 identification of some concrete interest with respect to which respondents are personally

17 subject to discriminatory treatment,” and “[t]hat interest must independently satisfy the

18 causation requirement of standing doctrine.” Id. at 757 n.22. No such interest exists here.

19

Second, Plaintiffs allege that they are being injured because the currently serving

20 Plaintiffs may be discharged from the military in the future and lose the medical and

21 retirement benefits associated with service in the military based on their transgender status.

22 ECF No. 15 at 31-32. But Defendants have shown that no Plaintiff has been discharged

23 from the military and that the Interim Guidance bars individuals from being discharged solely

24 on the basis of transgender status or a diagnosis of gender dysphoria. Plaintiffs’ speculation

25 that they may be discharged in the future is insufficiently concrete and imminent to establish

26 standing. See, e.g., Amnesty Int’l USA, 568 U.S. at 409 (“[W]e have repeatedly reiterated that

27 threatened injury must be certainly impending to constitute injury in fact, and that allegations

28 of possible future injury are not sufficient.”).

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 13 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
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1

Similarly speculation that Plaintiffs will lose their health care coverage after March

2 2018 is insufficient to establish standing, particularly in light of the Interim Guidance which

3 states “Service members who receive a gender dysphoria diagnosis from a military medical

4 provider will be provided treatment for the diagnosed medical condition.” Plaintiffs appear

5 to base this allegation on the Interim Guidance’s direction that “no new sex reassignment

6 surgical procedures for military personnel will be permitted after March 22, 2018, except to

7 the extent necessary to protect the health of an individual who has already begun a course of

8 treatment to reassign his or her sex.” However, none of the service member Plaintiffs claim

9 that they have been denied any medical treatment or that they even plan to seek sex

10 reassignment treatment through the military now or in the future.

11

Third, Plaintiffs allege that they have been injured by the accessions policy. ECF

12 No. 15 at 31. But not one of them has been denied accession into the military, which

13 could be denied for numerous reasons wholly unrelated to an applicant’s transgender

14 status. See, e.g., DODI 6130.03 (listing various other medical conditions that are “grounds

15 for rejection for military service” absent a waiver). Nor has any Plaintiff alleged that they

16 have been denied a medical waiver under the procedures detailed in DODI 6130.03. Such

17 allegations of speculative future harms are insufficient to establish standing. Moreover,

18 Plaintiffs Stockman and Reeves have both indicated that they have recently taken medical

19 steps to transition or plan to in the near future, ECF No. 1 ¶¶ 10, 12 and therefore would

20 not be eligible for accession even under former Secretary Carter’s policy were the Court to

21 reinstate it. See DTM 16-005 (requiring a prospective service member have completed all

22 medical treatment and have been stable in the preferred gender for 18 months). Finally,

23 individuals who are transgender or who have been diagnosed with gender dysphoria can

24 still apply for a medical waiver under the procedures detailed in DODI 6130.03, yet

25 Plaintiffs Stockman, Talbott, and Reeves have not alleged that they have even sought such

26 a waiver.

27

The lack of an injury-in-fact also defeats the organizational Plaintiff’s claims to

28 associational standing. To establish associational standing, each plaintiff organization must

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 14 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
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1 show: “(a) its members would otherwise have standing to sue in their own right; (b) the

2 interests it seeks to protect are germane to the organization's purpose; and (c) neither the

3 claim asserted nor the relief requested requires the participation of individual members in

4 the lawsuit.” Associated Gen. Contractors of Am., San Diego Chapter, Inc. v. Cal. Dep’t of Transp.,

5 713 F.3d 1187, 1194 (9th Cir. 2013). Because the Interim Guidance maintains the status quo,

6 the organizational Plaintiff has not identified even a single member who has suffered an

7 injury-in-fact. Equality California has failed to show that its claims do not require the

8 participation of individual members in the lawsuit. It consequently has not established

9 associational standing and should be dismissed from the case.

10

C. Plaintiffs’ Claims Are Not Ripe for Adjudication

11

Plaintiffs’ claims are also unripe. The ripeness doctrine is “drawn both from Article

12 III limitations on judicial power and from prudential reasons for refusing to exercise

13 jurisdiction.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003). The

14 prudential ripeness requirement is designed to prevent courts from “entangling themselves

15 in abstract disagreements over administrative policies” until “an administrative decision has

16 been formalized and its effects felt in a concrete way by the challenging parties.” Ohio Forestry

17 Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 732–33 (1998). To decide whether a claim is

18 prudentially ripe, a court must evaluate (1) “the fitness of the issues for judicial decision” and

19 (2) “the hardship[s] to the parties of withholding court consideration.” Abbott Labs v. Gardner,

20 387 U.S. 136, 149 (1967). Both considerations show that Plaintiffs’ challenge is premature.

21

First, the issues presented by Plaintiffs’ challenge are not fit for judicial decision. “A

22 claim is fit for decision if the issues raised are primarily legal, do not require further factual

23 development, and the challenged action is final.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1126

24 (9th Cir. 2009). In applying this standard, “[c]ourts have regularly declined on prudential

25 grounds to review challenges to recently promulgated laws or regulations in favor of awaiting

26 an actual application of the new rule.” Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676

27 F.3d 829, 837 (9th Cir. 2012). Here, the policy Plaintiffs assail is still being studied and

28 implemented, and judicial review at this stage would entangle the Court in an abstract

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 15 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
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1 disagreement over a rule that has not yet been finalized or had any concrete effect on

2 Plaintiffs. In addition, no Plaintiff has been discharged, refused health care, or denied

3 accession to the military, so there is no actual decision affecting a litigant, which should be

4 the focus of judicial review. Finally, concerns regarding whether issues are fit for judicial

5 decision apply with special force where, as here, Plaintiffs ask this Court to interfere in a

6 policy making process regarding an area that is constitutionally committed to the discretion

7 of the political branches.

8

Under these settled principles, the Court should defer to the policymaking process

9 presently underway concerning service by transgender persons. Plaintiffs cannot establish,

10 nor should this Court attempt to predict, the effect that future policies will have on overall

11 military needs when the military is exploring these issues. While Plaintiffs seek to rely at this

12 stage on the views of former military leaders regarding the policy on service by transgender

13 individuals, ECF No. 15 at 19-22, these citations only underscore that different views exist

14 as to a policy debate now underway—not that a possible future policy would be unlawful.

15

Second, due to the protections afforded by the Interim Guidance, Plaintiffs are not

16 being harmed and will not suffer hardships if the Court withholds consideration. As for

17 Plaintiffs’ allegations that they will be harmed in the future, it is unclear both how the policy

18 regarding military service by transgender individuals will be developed and implemented and

19 whether that policy will even have any effect on Plaintiffs. Plaintiffs’ speculation about future

20 events is insufficient to show that they will be harmed if this Court withholds its

21 consideration. After all, “[a] claim is not ripe for adjudication if it rests upon contingent

22 future events that may not occur as anticipated, or indeed may not occur at all.” Texas v.

23 United States, 523 U.S. 296, 300 (1998).

24

Further, the Ninth Circuit has traditionally required military service members to

25 exhaust intraservice corrective measures before a district court may review a military decision,

26 except where exhaustion would be futile. Meinhold v. US Dep’t of Def., 34 F.3d 1469, 1473-74

27 (9th Cir. 1994) (“[S]trict application of exhaustion requirements in military discharge cases

28 helps maintain the balance between military authority and federal court intervention[.]”); see

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 16 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
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1 also Watkins v. US Army, 875 F.2d 699, 705 (9th Cir. 1989) (en banc), cert. denied, 498 U.S. 957

2 (1990). Here, it is quite clear that not only have Plaintiffs not exhausted their military

3 remedies, in most cases they do not even know what those remedies will be or what adverse

4 personnel action, if any, they could be subject to in the future.

5

For example, all of the currently serving Plaintiffs claim to fear a future discharge. As

6 explained supra, the Interim Guidance currently prohibits discharge based solely on a

7 diagnosis of gender dysphoria or on a service members’ transgender status; but even if the

8 Court were to accept Plaintiffs’ assumption that they will one day be involuntarily separated

9 from the military, such separations whether administrative or medical, are heavily regulated

10 by detailed instructions both at the Defense Department and service level. See, e.g.,

11 Department of Defense Instruction 1332.14 (providing detailed procedures for the current

12 types of enlisted administrative separations);9 Department of Defense Manual 1332.18 Vol.

13 1–3 (providing detailed procedures for current medical separations).10 And each type of

14 military discharge has individually tailored procedures. For example, separation by

15 administrative board provides a service member the opportunity for a formal hearing before

16 the board with the opportunity to present evidence and cross-examine witnesses. See, e.g.,

17 Army Reg. 635-200 ¶ 3-7.11 Because the final policy is still being studied, it is premature to

18 know which specific regulatory process might apply.

19

For Plaintiffs seeking to access into the military the Department of Defense continues

20 to apply DODI 6130.03, but those procedures have not been utilized by Plaintiffs. Plaintiffs

21 Stockman, Talbott, and Reeves have not even passed the initial hurdle by showing that they 22 have applied for accession into the military and been denied solely based on their transgender

23

9Available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/133214p.pdf

24 last visited Oct. 23, 2017.

25

10 Available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/133218m_ vol1.pdf; http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/133218m_vol2.

26 pdfhttp://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/133218vol3.pdf last visited at Oct. 23, 2017.

27 11Available at http://www.apd.army.mil/epubs/DR_pubs/DR_a/pdf/web/AR635-200_Web_

FINAL_18JAN2017.pdf last visited at Oct. 23, 2017.

28

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 17 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
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1 status. Then, if such an action were to occur, Plaintiffs may utilize the procedures of DODI

2 6130.03 to seek a medical waiver for “current or history of gender dysphoria or gender

3 transition[.]” Interim Guidance, supra n.6. Only after Plaintiffs follow these procedures,

4 similarly applied to any other civilian seeking to join the military, will they have exhausted

5 their intraservice remedies.

6

The principles of constitutional avoidance further counsel for exhaustion of

7 administrative remedies. See Meinhold, 34 F.3d at 1474 (holding that it is error to rule on an

8 avoidable constitutional claim); Ar v. Hawaii, 314 F.3d 1091, 1098-99 (9th Cir. 2002) (Wallace,

9 J. concurring). Here, the service member Plaintiffs may never face an adverse personnel

10 action and so deciding whether or not a speculative action based on their gender dysphoria

11 or transgender status would be in compliance with the constitution could be wholly

12 unnecessary. Likewise, Plaintiffs who wish to join the military in the future may be denied

13 accession on grounds completely unrelated to gender dysphoria or transgender status or they

14 may have their medical waiver granted. The Court should therefore require Plaintiffs to

15 exhaust those remedies and decline to issue an advisory opinion on possible constitutional

16 theories, and dismiss Plaintiffs’ claims until they become ripe.

17 II. Plaintiffs’ Motion for a Preliminary Injunction Should Be Denied

18

Because Plaintiffs lack standing and their claims are not ripe, the Court should not

19 consider their preliminary injunction motion but instead dismiss the complaint. See Steel Co.

20 v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“Jurisdiction is power to declare the law,

21 and when it ceases to exist, the only function remaining to the court is that of announcing

22 the fact and dismissing the cause.”). But if the Court decides to reach Plaintiffs’ motion, it

23 should deny them the relief they seek.

24

A preliminary injunction “is an extraordinary and drastic remedy, one that should not

25 be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek

26 v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (emphasis in original). “A plaintiff seeking

27 a preliminary injunction must establish that he is likely to succeed on the merits, that he is

28 likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 18 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

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1 equities tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC,

2 555 U.S. 7, 20 (2008). A plaintiff cannot prevail without some showing on each of these four

3 factors. See id. at 23–24, 31–32 (holding that “proper consideration of” balance of equities

4 and public interest “alone requires denial of the requested injunctive relief” and thus finding

5 no need to address likelihood of success). And that showing must be especially strong to

6 obtain an injunction from an Article III court that runs to internal operations of the military.

7 Here, Plaintiffs have not met that burden.

8

A. Plaintiffs Have Not Shown that They Are Likely to Suffer an Irreparable

9

Harm Absent the Entry of a Preliminary Injunction

10

The Court’s review of this preliminary injunction motion should begin and end with

11 a consideration of whether Plaintiffs are likely to suffer irreparable injury. To show that a

12 preliminary injunction is warranted, Plaintiffs must demonstrate “that irreparable injury is

13 likely in the absence of an injunction,” regardless of the likelihood of success on the merits

14 of their claims. Id. at 22; see id. (“Issuing a preliminary injunction based only on a possibility

15 of irreparable harm is inconsistent with our characterization of injunctive relief as an

16 extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is

17 entitled to such relief.”); All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)

18 (“[P]laintiffs may not obtain a preliminary injunction unless they can show that irreparable

19 harm is likely to result in the absence of the injunction.”).

20

The standard for an irreparable injury is a demanding one: “Mere injuries, however

21 substantial, in terms of money, time and energy necessarily expended in the absence of a stay,

22 are not enough” to qualify as irreparable, and “[t]he possibility that adequate compensatory

23 or other corrective relief will be available at a later date, in the ordinary course of litigation,

24 weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974).

25 In the military context that standard is even higher. See Hartikka v. United States, 754 F.2d

26 1516, 1518 (9th Cir. 1985) (indicating that a moving party seeking injunctive relief against

27 the armed services must make a stronger showing of irreparable harm than is ordinarily

28 required).

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 19 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
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1

Plaintiffs have not shown a likelihood of irreparable harm in this case. First, for much

2 the same reasons they lack standing, Plaintiffs cannot show that they are likely to be injured

3 if the Court does not enter an injunction. See supra Part I. Second, even if Plaintiffs could

4 establish that they are likely to be injured, they cannot show that their injuries would be

5 beyond remediation. Separation from the military, for example, would not constitute an

6 irreparable harm because it is within the Court’s equitable powers to remedy such an injury.

7 See, e.g., Anderson v. United States, 612 F.2d 1112, 1115 (9th Cir. 1979) (finding no irreparable

8 harm where, if she succeeded on the merits of her claim, service member could be

9 “compensated in damages and back pay.”); Hartikka, 754 F.2d at 1518 (lost income, lost

10 retirement and relocation pay, and damage to a military service member’s reputation resulting

11 from the stigma of a less-than-honorable discharge did not constitute irreparable harm). And

12 Plaintiffs cannot overcome their lack of an actual, irreparable harm by relying entirely on

13 their allegations of constitutional violations. See, e.g., Vaqueria Tres Monjitas, Inc. v. Irizarry, 587

14 F.3d 464, 484–85 (1st Cir. 2009) (“[I]t cannot be said that violations of plaintiffs’ rights to

15 due process and equal protection automatically result in irreparable harm.”) (emphasis

16 omitted). As Plaintiffs have failed to show that they are likely to suffer an irreparable harm

17 if the Court does not intervene, the Court should deny Plaintiffs’ motion for a preliminary

18 injunction.

19

B. Plaintiffs Are Unlikely To Succeed on the Merits12

20

Plaintiffs also cannot establish that they are likely to succeed on the merits. To begin,

21 Plaintiffs’ failure to clear the standing and ripeness thresholds forecloses any conclusion that

22 they are likely to prevail on the merits of this lawsuit. See supra Part I; see also, e.g., Munaf v.

23 Geren, 553 U.S. 674, 690 (2008) (“A difficult question as to jurisdiction is, of course, no reason

24 to grant a preliminary injunction. It says nothing about the ‘likelihood of success on the

25 merits,’ other than making such success more unlikely due to potential impediments to even

26
27 12 For the same reasons that Plaintiffs cannot establish a likelihood of success on the merits, they also fail to state a claim as a matter of law. Accordingly, Plaintiffs’ Amended Complaint is also
28 subject to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 20 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

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1 reaching the merits.”). But even if Plaintiffs could somehow establish jurisdiction at this

2 stage, their challenge would founder for several reasons. First, the policy currently in place—

3 which maintains the status quo for transgender persons currently serving in the military

4 during an interim period while the need for possible changes is studied—has not been

5 challenged in this case and, in any event, is plainly lawful. Second, to the extent Plaintiffs

6 seek to attack the ongoing policy-making process, their claims similarly lack merit. The

7 President and Secretary Mattis’ decision that the complex issues presented by the policy on

8 military service by transgender individuals warrant additional study before changes are made

9 to longstanding policies passes muster under any standard. Third, even if the Court could

10 somehow review the military’s current maintenance of its longstanding accessions policy, the

11 policy would withstand constitutional challenge. Likewise, until the future policy concerning

12 transgender service is resolved and implemented, Plaintiffs cannot show they are likely to

13 succeed on their due process or First Amendment claims.

14

1. Plaintiffs Have Not Challenged Defendants’ Operative Policy for

Enlisted Transgender Service Members, and any such Challenge

15

Would Fail to State an Equal Protection Claim

16

Plaintiffs fail even to mention the policy on service by transgender individuals that is

17 currently in effect. For that reason alone, they cannot show a likelihood of success on the

18 merits. While Plaintiffs say much about the potential impact of the President’s August 25

19 Memorandum, ECF No. 15 at 6-7, 12, 16, 30-32, 34, they never address the operative Interim

20 Guidance issued on September 14, which bars any disparate treatment of currently serving

21 transgender individuals. Under the operative policy:

22

[N]o action may be taken to involuntarily separate or discharge

23

an otherwise qualified Service member solely on the basis of a gender dysphoria diagnosis or transgender status. Transgender

24

Service members are subject to the same standards as any other

Service member of the same gender; they may be separated or

25

discharged under existing bases and processes, but not on the

26

basis of gender dysphoria diagnosis or transgender status.

27

28

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 21 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

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1 Interim Guidance, supra n.6. The operative policy further provides that transgender service

2 members “who receive a gender dysphoria diagnosis from a military medical provider will be

3 provided treatment for the diagnosed medical condition.” Id. And it makes clear that “[a]n

4 otherwise qualified transgender Service member whose term of service expires while this

5 Interim Guidance remains in effect, may, at the Service member’s request, be re-enlisted in

6 service under existing procedures.” Id.13

7

Under this operative policy, Plaintiffs’ claims fail on their face. Plaintiffs ask this

8 Court to enter a preliminary injunction “prohibiting Defendants from implementing the ban

9 on military service by transgender individuals[.]” ECF No. 15 at 1. But the Interim Guidance

10 already explicitly states that “no action may be taken to involuntarily separate or discharge an

11 otherwise qualified Service member solely on the basis of a gender dysphoria diagnosis.”

12 The Equal Protection component does not apply under these circumstances. “A denial of

13 equal protection entails, at a minimum, a classification that treats individuals unequally.”

14 Coal. for Econ. Equity v. Wilson, 122 F.3d 692, 707 (9th Cir. 1997). Here, the current operative

15 policy does not impermissibly classify service members based on transgender status, but

16 rather prohibits disparate treatment of existing service members based on transgender status.

17 A law that forbids disparate treatment cannot violate Equal Protection.

18

2. Plaintiffs’ Challenge to the Accession Policy is Unlikely to Succeed

19

To the extent Plaintiffs seek to challenge Defendants’ current policy for the accession

20 of transgender persons into the military, they also cannot establish a likelihood of success on

21 the merits and have failed to state a valid claim challenging that policy for several reasons.

22

First, neither the President’s Memorandum nor the operative Interim Guidance

23 establishes a new restriction that has been imposed on Plaintiffs with respect to accession to

24 military service. Even before the President took action, the policy on accession by

25 13 The policy also states that “no new sex reassignment surgical procedures for military personnel

26

will be permitted after March 22, 2018, except to the extent necessary to protect the health of the individual who has already begun a course of treatment to reassign his or her sex.” Id. (emphasis added). There are thus no

27 restrictions on sex-reassignment surgery at present. In addition, this provision confirms that medically necessary procedures will be accommodated in the future.

28

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1 transgender individuals announced in June 2016 had not gone into effect. Originally

2 scheduled to be implemented on July 1, 2017, Secretary Mattis had deferred implementation

3 of a revised accession policy until January 1, 2018, before the President issued his

4 memorandum. See Presidential Memorandum § 1(a). The President’s Memorandum

5 “extends the deadline to alter the currently effective accession policy beyond January 1, 2018,

6 while [the relevant Departments] continue to study the issue.” Id. The “currently effective”

7 accession policy is set forth in DODI 6130.03, and was most recently modified in September

8 2011. See DODI 6130.03. The Interim Guidance thus maintains the status quo by

9 continuing the longstanding procedures set forth in DODI 6130.03 to permit further review

10 by a panel of experts before any change in policy occurs. Thus, with respect to accession,

11 Plaintiffs cannot claim that the President imposed a new requirement; instead, he declined

12 to relax longstanding policy without further study. The President has preserved the status

13 quo “until such time as a sufficient basis exists upon which to conclude” that ending the

14 accessions policy would not result in harm to the military. Presidential Memorandum § 1(b).

15 The President has the authority to insist on further study before a significant change to

16 military personnel policy, and Plaintiffs cannot show otherwise, let alone obtain an injunction

17 to halt such a study. And certainly no Plaintiff can credibly sustain a claim for emergency

18 relief as to a policy whose current version has been in place without modification for over

19 six years.

20

Second, Plaintiffs cannot show a likelihood of success on the merits of any challenge

21 to the accession policy because it has not injured them. Plaintiffs Tate, John Doe 1, John

22 Doe 2, and Jane Doe 1 who are currently serving in the military, are not subject to the

23 accessions policy, but to the policy set forth in the Interim Guidance under which they may

24 reenlist and obtain promotions. Plaintiffs Stockman, Talbott, and Reeves do not allege that

25 their applications have been denied due to their transgender status. And because the Interim

26 Guidance expressly confirms that the accession policy, which “generally” bars the accession

27 of transgender individuals into the military, is “subject to the normal waiver process,” Interim

28 Guidance, supra n.6, those Plaintiffs could be injured only if they sought and were denied

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1 individualized waivers. Given that there is no way of knowing whether the military would

2 deny their waiver requests until they are actually sought, Plaintiffs Stockman, Talbott, and

3 Reeves cannot claim to have been injured by the accessions policy.

4

Finally, even if the accession policy did apply to Plaintiffs, the President has concluded

5 only that the analysis undertaken thus far does not provide “a sufficient basis to conclude

6 that terminating the Departments’ longstanding policy and practice would not hinder military

7 readiness and lethality, disrupt union cohesion, or tax military resources” and that “further

8 study is needed to ensure that continued implementation of last year’s policy change would

9 not have those negative effects.” Presidential Memorandum § 1(a). It is plainly reasonable

10 for the Defense Department to study conditions that could have an adverse effect on the

11 military, and Plaintiffs cannot state a valid claim, let alone support preliminary injunctive

12 relief, on the ground that it is unlawful to do so.

13

In these circumstances, the Court need not—and should not—address the

14 constitutionality of accession policy at this stage. “If there is one doctrine more deeply

15 rooted than any other in the process of constitutional adjudication, it is that we ought not to

16 pass on questions of constitutionality . . . unless such adjudication is unavoidable.” Spector

17 Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944). This avoidance principle is particularly

18 applicable here, where Plaintiffs’ claims seek to delve into the judgment of military

19 authorities. See infra Part II.B.3.

3. In any Event, an Equal Protection Challenge to Defendants’

20

Longstanding Accession Policy Would Not Succeed

21
Although there is no basis for this Court to address the issue, Plaintiffs’ equal

22
protection challenge to the accession policy regarding transgender individuals is unlikely to

23
succeed.

24

a. The military’s longstanding accessions policy is subject to a

25

highly deferential form of review

26

i. Courts have accorded substantial deference to Congress and the President on the

27 development and regulation of military personnel policy. That is not only because the

28 Constitution itself commits military decisions to “the political branches directly

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1 responsible—as the Judicial Branch is not—to the electoral process,” but because “it is

2 difficult to conceive of an area of governmental activity in which the courts have less

3 competence.” Gilligan, 413 U.S. at 10. Accordingly, there is “perhaps … no other area”

4 where the Supreme Court has shown the political branches “greater deference.” Rostker v.

5 Goldberg, 453 U.S. 57, 64–65 (1981).

6

None of this is to say that the Constitution may be disregarded when military affairs

7 are at stake, see id. at 78, but “the tests and limitations to be applied may differ because of the

8 military context,” id. at 67. For instance, judicial “review of regulations challenged on First

9 Amendment grounds is far more deferential than constitutional review of similar laws or

10 regulations destined for civilian society.” Goldman v. Weinberger, 475 U.S. 503, 507 (1986). In

11 the military context, the government may ban political speeches and the distribution of

12 leaflets, Greer v. Spock, 424 U.S. 828 (1976), or even impose prior restraints on circulating

13 petitions, Brown v. Glines, 444 U.S. 348, 355 (1980). And even during an era when the Court

14 applied a more rigorous standard for free-exercise claims, it still allowed the Air Force to

15 prohibit a Jewish officer from wearing a yarmulke while working as a clinical psychologist in

16 an Air Force base hospital. Weinberger, 475 U.S. 503.

17

The same principle applies to “‘[t]he complex, subtle, and professional decisions as

18 to the composition … of a military force.’” Rostker, 453 U.S. at 65 (citation omitted). These

19 “‘are essentially professional military judgments, subject always to the civilian control of the

20 Legislative and Executive Branches,’” and thus are particularly ill-suited to judicial second-

21 guessing. Id. at 65–66 (emphasis omitted). That is in part because choices about the

22 composition of the armed forces “are based on judgments concerning military operations

23 and needs, and the deference unquestionably due the latter judgments is necessarily required

24 in assessing the former as well.” Id. at 68 (internal citation omitted).

25

Courts consequently have upheld exclusionary policies in the military while at the

26 same time invalidating similar policies in the civilian sphere. Compare, e.g., Craig v. Boren, 429

27 U.S. 190 (1976), Reed v. Reed, 404 U.S. 71 (1971); and Massachusetts v. HHS, 682 F.3d 1, 9–10

28 (1st Cir. 2012), with Rostker, 453 U.S. 57, Schlesinger v. Ballard, 419 U.S. 498 (1975); and Cook

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1 v. Gates, 528 F.3d 42, 62 (1st Cir. 2008). Of course, there are limits: no amount of deference

2 could save the military’s decision to exclude a race or religion from being considered under

3 the strict scrutiny standard. See Rostker 453 U.S. at 78. But outside those extreme examples,

4 the military’s policies are entitled to a “healthy deference” their civilian counterparts do not

5 enjoy. Id. at 66.

6

ii. While the Supreme Court has yet to provide a precise explanation of how this

7 deference interacts with traditional tiers of scrutiny, see id. at 69–70, at least three features of

8 the highly deferential review applied to military decisions are significant. First, courts defer

9 to the judgments of the political branches even in the face of contrary evidence. In Weinberger,

10 for instance, the plaintiff provided “expert testimony that religious exceptions” to the Air

11 Force’s dress code “will increase morale by making the Air Force a more humane place,” and

12 noted “that the Air Force’s assertion” that such exceptions “would threaten discipline” was

13 “mere ipse dixit, with no support from actual experience or a scientific study in the record.”

14 475 U.S. at 509. The Court dismissed the “views of expert[s]” as “quite beside the point,”

15 because “military officials … are under no constitutional mandate to abandon their

16 considered professional judgment.” Id. Similarly, in Rostker, the Supreme Court rejected the

17 lower court’s conclusion that the available evidence showed that “‘military opinion, backed

18 by extensive study, is that the availability of women registrants would materially increase

19 flexibility, not hamper it.’” 453 U.S. at 63 (citation omitted). As the Court explained, judges

20 could not substitute their “own evaluation of evidence for a reasonable evaluation” by the

21 political branches. Id. at 68.

22

Second, the political branches enjoy a significant latitude to choose “among

23 alternatives” in developing military policy, including among alternatives supported by

24 different government officials and military experts. Id. at 72. In Rostker, for example,

25 President Carter recommended that Congress “permit the registration and conscription of

26 women as well as men,” id. at 60, and secured “testimony of members of the Executive

27 Branch and the military in support of that decision,” id. at 79. That side of the debate stressed

28 that women inducted into the army could “be used to fill noncombat positions, freeing men

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1 to go to the front.” Id. at 81. The Supreme Court rejected the lower court’s reliance on this

2 testimony, explaining that the policy question of participation of women in the selective

3 service was appropriately left to Congress and the military rather than the courts. See id.

4

Third, arguable inconsistencies that result from line-drawing have not rendered

5 military policies invalid. The Court in Weinberger, for instance, acknowledged that the Air

6 Force both had an “exception … for headgear worn during indoor religious ceremonies”

7 and allowed commanders “in their discretion” to allow “visible religious headgear … in

8 designated living quarters and nonvisible items generally.” 475 U.S. at 509. But the fact that

9 “Air Force has drawn the line essentially between religious apparel that is visible and that

10 which is not” did not trouble the Court, for the regulations challenged in that case

11 “reasonably and evenhandedly regulate dress in the interest of the military’s perceived need

12 for uniformity.” Id.

13

iii. Plaintiffs ignore all of this, treating their premature challenge as if it were a run-

14 of-the-mill civilian case. They first insist that the military’s accessions policy is subject to a

15 conventional strict-scrutiny analysis, but fail to identify a single court that has applied this

16 exacting standard to laws bearing on transgender individuals in any context. ECF No 15 at

17 12. This Court should not be the first to do so with respect to a military judgment. Indeed,

18 applying strict scrutiny here would mean that transgender status receives far greater

19 protection than core First Amendment freedoms, see Weinberger, 475 U.S. 503; Brown, 444 U.S.

20 348; Greer, 424 U.S. 828, sexual orientation, see Witt v. Dep’t of Air Force, 527 F.3d 806, 818

21 (9th Cir. 2008), and even gender itself, see Rostker, 453 U.S. 57.

22

In the alternative, Plaintiffs insist that the military’s policy warrants intermediate

23 scrutiny because it is a sex-based classification or sex stereotyping. ECF No. 15 at 14-15.

24 But the Ninth Circuit has never applied intermediate scrutiny to an equal protection claim of

25 transgender discrimination, and, to our knowledge, no court has ever applied heightened

26 scrutiny to a claim of transgender discrimination in the military. See, e.g., Doe v. Alexander,

27 510 F. Supp. at 902, 905 (D. Minn. 1981) (declining to review medical fitness determination

28 policy for service member who had undergone sex change procedure under heightened

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1 review). The Ninth Circuit cases Plaintiffs cite in support of their argument for intermediate

2 scrutiny did not involve constitutional equal protection claims and are distinguishable from

3 the facts of this case. See Witt, 527 F.3d at 821 (applying a heightened level of scrutiny to a

4 substantive due process claim challenging the military’s Don’t Ask, Don’t Tell policy and

5 upholding the dismissal of the plaintiffs’ equal protection claim under rational basis review);

6 Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (holding that the Gender Motivated

7 Violence Act prohibits discrimination on the basis of sex and gender). And insofar as Witt

8 suggests that an ordinary form of heightened scrutiny may be applied to a military personnel

9 policy, that approach is inconsistent with Supreme Court authority granting substantial

10 deference in this context. See, e.g., Witt v. Dep’t of Air Force, 548 F.3d 1264, 1272 (9th Cir.

11 2008) (O’Scannlain, J, dissenting from denial of rehearing en banc) (“Witt is in considerable

12 tension with this traditional deference [to the military], which obtains even when it comes to

13 constitutional rights.”); id. at 1276 (Kleinfeld, J, dissenting from denial of rehearing en banc)

14 (“few liberties prevail against” the “especially high level of deference we are required to

15 extend to Congress and the President regarding military affairs”).

16

In any event, every case Plaintiffs cite concerning distinctions on the basis of

17 transgender status addresses the civilian context—typically, employment—and thus are

18 distinguishable. See generally ECF No. 32 at 14-15. There is consequently no need for this

19 Court to weigh in on how to apply equal protection doctrine to transgender individuals when

20 it comes to civilian affairs. Compare, e.g., Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No.

21 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017), petition for cert. filed, -- U.S.L.W. ---- (U.S. Aug.

22 25, 2017) (No. 17-301), with Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007).

23

b. Plaintiffs are unlikely to succeed on their challenge to the

24

military’s longstanding accessions policy

25

In light of the considerable deference due to military personnel decisions, Plaintiffs

26 cannot show that they are likely to succeed on their challenge to the decades-long accessions

27 policy. As the President explained, there were significant concerns that abandoning this

28 policy could “hinder military effectiveness and lethality, disrupt unit cohesion, or tax military

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1 resources.” Presidential Memorandum § 1(a). Plaintiffs claim that each of these reasons

2 “inexplicable by anything but animus” ECF No. 15 at 12, but their argument does not

3 withstand closer examination.

4

First, the military’s longstanding accessions policy rests on the reasonable concern

5 that at least some transgender individuals suffer from medical conditions that could impede

6 the performance of their duties. See DODI 6130.03. The new accessions policy announced

7 in 2016 acknowledged the legitimacy of this concern by providing that a history of gender

8 dysphoria, medical treatment associated with gender transition, and sex reassignment surgery

9 were disqualifying unless an applicant could prove that he had avoided complications for an

10 18 month period. DTM 16-005. Whether those medical conditions and treatments are

11 sufficiently correlated with transgender status or gender dysphoria as to warrant a broader

12 disqualification is one of the questions that the Defense Department’s expert panel will study,

13 and in the interim it was not irrational for the President to maintain the status quo pending

14 that panel’s review. For example, the current edition of the World Health Organization’s

15 International Classification of Diseases likewise classifies “transsexualism” as a “disorder[] of adult

16 personality and behavior,” International Classification of Diseases F64.0 (2016) (ICD), and

17 there is no reason to think that this judgment or the judgments of the previous

18 administrations that maintained the military’s longstanding accessions policy were somehow

19 driven by animus.

20

Second, the accessions policy rests on the reasonable conclusion that these conditions

21 may limit the ability of transgender individuals to deploy as well as impose additional costs

22 on the armed forces. For decades, military professionals indicated that one basis for the

23 policy was that complications associated with hormone therapy and sex-change procedures

24 could impair soldiers from serving around the globe. See, e.g., DeGroat v. Townsend, 495 F.

25 Supp. 2d 845, 850–52 (S.D. Ohio 2007) (discussing testimony of military doctor); Doe, 510

26 F. Supp. at 905 (discussing affidavit of Brigadier General). Plaintiffs dispute this conclusion,

27 relying on the RAND Report and the declarations of former military officials. ECF No. 15

28 at 19-22. But the RAND Report acknowledges that medical complications would limit

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1 deployment capabilities, RAND Report 39–42; it simply concludes that this burden would

2 be “negligible,” id. at 46. But there is room for the military to think otherwise and in any

3 event, cases such as Weinberger and Rostker teach that it is not this Court’s role to resolve a

4 battle of the experts in reviewing military policy.

5

Similarly, no one disputes that abandoning the longstanding accessions policy would

6 impose costs on the military. Instead, Plaintiffs isolate one of those costs—transition-related

7 care to active-duty service member—and dismiss it as “budget dust.” ECF No. 15 at 21.

8 But that ignores other costs associated with their desired policy change, and in any event the

9 military’s freedom to choose “among alternatives,” Rostker, 453 U.S. at 72, includes the ability

10 to decide how best to spend its money. At a minimum, the military is entitled to make the

11 reasonable judgment that spending the millions of dollars necessary to accommodate

12 transgender individuals on other endeavors would more effectively accomplish its “primary

13 business”—i.e., “to fight or be ready to fight wars should the occasion arise.” Id. at 70

14 (citation omitted); see RAND Report 70 (estimating some costs).

15

Third, the President could reasonably conclude that the accessions policy furthers

16 “unit cohesion.” Presidential Memorandum § 1(a). Plaintiffs dismiss this rationale as well,

17 invoking their own declarations as well as the experience of foreign militaries. ECF No. 15

18 at 20-21. But the RAND study on which Plaintiffs heavily rely noted that “[a] key concern

19 in allowing transgender personnel to serve openly is how this may affect unit cohesion—a 20 critical input for unit readiness,” RAND Report 44, and specifically noted that it did “not 21 have direct survey evidence or other data to directly assess the impact on the U.S. 22 military.” Id. RAND also acknowledged that its assessment of experience in foreign 23 militaries was based on “fairly low numbers of openly serving transgender personnel.” Id. at 24 45. Additionally, although the RAND study found that transgender service members were 25 less deployable when seeking treatment, it did not appear to consider whether an impact in 26 deployability in itself would affect unit cohesion. See id. at 40, 44–45. Given the limited 27 information presently available, which the RAND study itself acknowledges, it is certainly 28 reasonable for the President to have concluded that maintaining the accessions policy could

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1 rationally further unit cohesion, and that the matter warranted further study. And in any

2 event it is not the role of the judiciary to second-guess a Commander in Chief’s judgment in

3 this regard. After all, “the Supreme Court has indicated” that “military decisions and

4 assessments of morale, discipline, and unit cohesion … are well beyond the competence of

5 judges.” Bryant v. Gates, 532 F.3d 888, 899 (D.C. Cir. 2008) (Kavanaugh, J., concurring).

6

Ultimately, Plaintiffs’ theory reduces to the accusation that any justification for the

7 accessions policy is a pretext for animus toward transgender individuals. But in the civilian

8 context, the political branches are ordinarily free to engage in “line-drawing,” even where,

9 unlike here, “some persons who have an almost equally strong claim to favored treatment”

10 are “placed on different sides of the line.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315–16

11 (1993). That freedom is even more important when it comes to deciding who may serve in

12 the Armed Forces. For instance, a variety of physical and mental conditions presumptively

13 bar entry into the military, including asthma, DODI 6130.03 at § 11(d); history of severe

14 migraines, id. § 27(c); discrepancies in leg-length resulting in a limp, id. § 19(a)(2); or any

15 curvature of the spine that would prevent one from wearing a uniform properly, id. § 17(c)(2).

16 Reasonable people could disagree over whether these individuals should be able to serve.

17 But that does not mean that the President or military leadership harbors animus towards

18 these individuals.

19

4. Plaintiffs Are Unlikely To Succeed on Their Due Process Claim

20

Nor are Plaintiffs likely to prevail on their due process claims, in either its substantive

21 or procedural form. Plaintiffs’ two substantive due process claims fail for essentially the

22 same reasons. First, as shown above, Defendants have not deprived Plaintiffs of a liberty or

23 property interest. Defendants have not interfered with Plaintiffs’ “ability to continue serving

24 in the military as openly transgender persons,” ECF No. 1 ¶ 61, or their “liberty to live

25 consistently with their gender identity,” id. at ¶69. Plaintiffs attempt to analogize this case

26 to the circumstances presented in Witt v. Department of the Air Force, but unlike the plaintiff

27 in Witt, Plaintiffs have not been discharged from the military. 527 F.3d at 110. For that

28

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1 reason alone, the Court should dismiss Plaintiffs’ substantive due process claims, Counts

2 Two and Three, for failure to state a claim upon which relief can be granted.

3

Moreover, Plaintiffs have failed to plausibly allege the violation a fundamental right

4 or interest. A fundamental constitutional right protected by the Due Process Clause is one

5 that is “objectively, deeply rooted in this Nation’s history and tradition” and “implicit in the

6 concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). The

7 Supreme Court has mandated extreme caution in elevating individual liberty interests to the

8 status of fundamental constitutional rights, because recognizing such rights, “to a great

9 extent, places the matter outside the arena of public debate and legislative action” and risks

10 transforming the Due Process Clause “into the policy preferences of the Members of the

11 Court.” Id. In determining whether a claimed right is fundamental, courts first require “a

12 careful description of the asserted fundamental liberty interest.” Id. at 721. “[V]ague

13 generalities . . . will not suffice.” Chavez v. Martinez, 538 U.S. 760, 776 (2003).

14

Neither of the rights or interests that Plaintiffs assert here is fundamental. Despite

15 Plaintiffs’ allegations in Count Two, individuals do not have a property right in continued

16 service in the military. See Christoffersen v. Wash. State Air Nat’l Guard, 855 F.2d 1437, 1443

17 (9th Cir. 1988). Plaintiffs cannot circumvent this limitation by recasting the right at issue as

18 a reliance interest. And Plaintiffs’ suggestion that the military is somehow estopped under

19 the Due Process Clause from changing its policies, ECF No. 15 at 25-27, is equally misplaced. 20 See, e.g., United States v. Owens, 54 F.3d 271, 275 (6th Cir. 1995) (“[T]he government should 21 not be unduly hindered from changing its position if that shift is the result of a change in 22 public policy.”), cited in New Hampshire v. Maine, 532 U.S. 742, 755 (2001); Emery Min. Corp. 23 v. Sec’y of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984) (estoppel cannot be justified against the 24 government where it would “interfere with underlying government policies or unduly 25 undermine the correct enforcement of a particular law or regulation.”). Notably, Plaintiffs 26 do not cite any case in which a court has held that a federal agency is estopped from changing 27 its generally applicable policies. Indeed, it is axiomatic that the government may alter its 28 policies for any number of reasons, in accordance with the applicable procedures. See generally

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1 Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1210 (2015). Here, the President issued a

2 directive setting forth his policy decision to further study the issue of military service by

3 transgender individuals, before the military departs from longstanding policies and practices.

4 The decision to issue this directive falls squarely within his discretion as Commander in Chief.

5

In Count Three, Plaintiffs assert “the right to self-identification and self-

6 determination as transgender individuals.” ECF No. 1 ¶ 67. But this description fails to

7 narrowly and accurately define the interest that Plaintiffs actually seek to vindicate, which is

8 an alleged right of some service members to have the military disregard their transgender

9 status, notwithstanding the Government’s determination that this information bears on

10 longstanding medical standards. Neither the Supreme Court nor the Ninth Circuit has

11 recognized the type of interest that Plaintiff asserts here as a fundamental constitutional right.

12 Indeed, as detailed supra, when the development and regulation of military personnel is at

13 issue, there is “perhaps . . . no other area” where the Supreme Court has shown the political

14 branches “greater deference.” Rostker, 453 U.S. at 64-65.

15

Moreover, the President has provided reasons for maintaining the status quo while

16 the military studies the policy on service by transgender individuals that pass constitutional

17 muster under any standard, especially in light of the significant deference courts accord to

18 military judgments regarding the composition of the fighting force. Plaintiffs have therefore

19 failed to show a likelihood of success on their substantive due process claim.14

20

To the extent Plaintiffs are raising procedural due process claims, they fail for

21 essentially the same reasons. It is entirely speculative that they will ever be deprived of a

22 liberty or property interest and it is unknown what process would be employed to effectuate

23 that hypothetical deprivation. “Procedural due process imposes constraints on governmental

24 decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of

25 the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424

26

14 Should the Court conclude that Witt’s application of heightened scrutiny for a substantive due

27 process challenge to a military personnel policy would require further examination, that is all the

more reason the Court should defer to the ongoing process now underway and review any impact

28 future policy may have on plaintiffs after the military has completed its review.

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U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
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1 U.S. 319, 332 (1976). Accordingly, “[t]he first inquiry in every due process challenge is

2 whether the plaintiff has been deprived of a protected interest in ‘property’ or ‘liberty.’ ” Am.

3 Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999). As Plaintiffs cannot show that they have

4 been deprived of a protected right or interest, they have failed to state a plausible procedural

5 due process claim.

6

5. Plaintiffs Are Unlikely to Succeed on Their First Amendment

Claim
7

8

Plaintiffs’ First Amendment claim is similarly unlikely to succeed. Plaintiffs contend

9 that the Government’s policy is an unconstitutional restriction on speech based on its

10 content. But Defendants’ policy is not a content-based regulation of speech at all. As a

11 threshold matter, the policy does not “prohibit[] transgender individuals … from disclosing

12 their gender identity or their transgender status.” ECF No. 15 at 29. To the contrary, for

13 current service members, the operative policy prohibits any disparate treatment based on

14 expression of one’s transgender status. Interim Guidance, supra n.6.

15

Nor does the military’s longstanding policy on accession of transgender individuals

16 constitute a content-based speech regulation. Plaintiffs strain to rely on case law addressing

17 the “Don’t Ask, Don’t Tell” Act, ECF No. 15 at 27, but that statute expressly required a

18 “servicemember’s discharge if he or she ‘has stated that he or she is a homosexual or bisexual,

19 or words to that effect.’” Log Cabin Republicans v. United States, 716 F. Supp. 2d 884, 926 (C.D.

20 Cal. 2010) (emphasis in original), vacated on other grounds by 658 F.3d 1162 (9th Cir. 2011). The

21 accession policy, by contrast, turns on whether a person’s current or history of gender

22 dysphoria or gender transition meets medical standards, not because of the message one’s

23 gender identity conveys. Of course, an applicant must disclose any relevant condition to the

24 military through words, but that alone cannot subject military medical standards to First

25 Amendment scrutiny, for then every denial of accession would trigger a constitutional case.

26 See Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 62 (2006) (“‘[I]t has never 27 been deemed an abridgment of freedom of speech or press to make a course of conduct 28 illegal merely because the conduct was in part initiated, evidenced, or carried out by means

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1 of language, either spoken, written, or printed.’” (quoting Giboney v. Empire Storage & Ice Co.,

2 336 U.S. 490, 502 (1949)). In any event, the accession policy does not “prohibit[] transgender

3 individuals from disclosing their gender identity or transgender status[,]” ECF No. 15 at 29,

4 but permits persons who have a disqualifying medical diagnosis or condition to seek a waiver

5 from any applicable health requirement when appropriate and serve in the military.

6

Even assuming arguendo that the First Amendment were implicated here, Plaintiffs

7 cannot show a likely success on the merits under the deferential standard of review that

8 applies to regulation of speech in the military context. See Weinberger, 475 U.S. at 507.

9 Plaintiffs attempt incorrectly to invoke the heightened First Amendment standard from the

10 civilian context, ECF No. 15 at 28, but a regulation of speech in the military survives review

11 if it “restrict[s] speech no more than is reasonably necessary to protect the substantial

12 government interest.” Brown, 444 U.S. at 355.15 Defendants’ current policy on service by

13 transgender persons meets this highly deferential standard. The operative Interim Guidance

14 maintains the status quo for enlisted transgender service members, and expressly protects

15 them from being discharged or denied medical care based on their transgender status. There

16 is no restriction on service by transgender persons currently serving in the military or on any

17 of their expression or associations. And insofar as the military’s longstanding accessions

18 policy, which “generally” bars accession for transgender individuals, “subject to the normal 19 waiver process,” Interim Guidance, supra n.6, is found to implicate the First Amendment,

20

21

22

15 None of the cases cited by Plaintiffs stand for their purported proposition that regulation of speech “in the military context, may be upheld only if the restriction is narrowly tailored to serve a

23 compelling state interest.” ECF No. 15 at 28. Weaver v. Nebo School District addressed the First Amendment claims of a public school teacher. 29 F. Supp. 2d 1279 (D. Utah 1998). And Cornelius

24 v. NAACP Legal Defense and Educational Fund, Inc., addressed whether legal defense and political

advocacy organizations were properly excluded from participation in a charity drive aimed at 25 federal employees. 473 U.S. 788 (1985). And, while the Court in Nieto v. Flatau acknowledged that

26

regulations restricting speech on military property may not discriminate based only on viewpoint (e.g., by suppressing only one side of a particular debate), the court made clear that “military

27 regulations are entitled to far greater deference than those designed for civilian society” and “[r]estrictions on speech that would run afoul of the First Amendment may, nevertheless, pass

28 constitutional muster if promulgated by the military.” 715 F. Supp. 2d 650, 655 (E.D. N.C. 2010).

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1 that policy easily survives the highly deferential form of review applicable here. See supra Part 2 II.B.3.

3

C. The Balance of Equities and the Public Interest Weigh Strongly Against

4

Entry of a Preliminary Injunction

5

Plaintiffs likewise cannot show the balance of equities tips in their favor. In weighing

6 the equities, a court “must balance the competing claims of injury and must consider the

7 effect on each party of the granting or withholding of the requested relief.” Amoco Prod. Co.

8 v. Vill. of Gambell, 480 U.S. 531, 542 (1987). Plaintiffs are not being harmed by the Interim

9 Guidance, which is the operative rule, and it is unclear whether they will ultimately be harmed

10 by the final policy once it has been studied, developed and implemented. Plaintiffs therefore

11 have not—and cannot—show that they will be harmed if the Court denies their motion for

12 extraordinary preliminary relief. The military, on the other hand, is in the process of

13 gathering a panel of experts who will “bring mature experience, most notably in combat and

14 deployed operations, and seasoned judgment” to the task of providing advice and

15 recommendations on the development and implementation of the policy on military service

16 by transgender individuals. Statement of Secretary Jim Mattis, Release No: NR-312-17.

17 Granting Plaintiffs their requested relief would directly interfere with the panel’s work and

18 the military’s ability to thoroughly study a complex and important issue regarding the

19 composition of the armed forces. The balance of equities thus tips strongly against issuing

20 a preliminary injunction in this case.

21

Nor can Plaintiffs show that a preliminary injunction here would be in the public

22 interest. The public has a strong interest in national defense, see Winter, 555 U.S. at 7, and

23 here both the President and Secretary of Defense have directed that the policy on military

24 service by transgender individuals be subject to further study. The public interest, therefore,

25 weighs strongly against judicial interference with the military’s study of its policy on

26 transgender military service.

27

28

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U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
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1 D. The Injunctive Relief Plaintiffs Seek Is Inappropriate

2

Finally, even if Plaintiffs had standing and had made the showing required for

3 extraordinary preliminary relief, the worldwide injunction they seek would still be

4 inappropriate. Plaintiffs’ request for a sweeping order enjoining Defendants from

5 “implementing the ban on military service by transgender individuals” ECF No. 15 at 1,

6 suffers from at least three major flaws.

7

First, Plaintiffs’ desired injunction would simply require Defendants to comply with

8 the Interim Guidance that the Secretary of Defense has already put in place. The Interim

9 Guidance directs that “no action may be taken to involuntarily separate or discharge an

10 otherwise qualified Service member solely on the basis of a gender dysphoria diagnosis or

11 transgender status.” Interim Guidance, supra n.6. It also provides that “Service members

12 who receive a gender dysphoria diagnosis from a military medical provider will be provided

13 treatment for the diagnosed medical condition.” Id. In addition to being unnecessary, the

14 “obey the law” injunction Plaintiffs seek is particularly inappropriate in a suit against the

15 government, where it could subject the government defendants to contempt proceedings for

16 every alleged legal failing, supplanting the civil remedies Congress has provided. Cobell v.

17 Norton, 392 F.3d 461, 475 (D.C. Cir. 2004).

18

Second, Plaintiffs seek an injunction that would in theory apply to service members

19 worldwide. Both constitutional and equitable principles, however, require that injunctive 20 relief be limited to redressing a plaintiff’s own cognizable injuries. Article III demands that 21 “a plaintiff must demonstrate standing … for each form of relief that is sought.” Town of 22 Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (citation omitted). “The remedy” 23 sought thus must “be limited to the inadequacy that produced the injury in fact that the 24 plaintiff has established.” Lewis v. Casey, 518 U.S. 343, 357 (1996). “The actual-injury 25 requirement would hardly serve [its] purpose … of preventing courts from undertaking tasks 26 assigned to the political branches[,] if once a plaintiff demonstrated harm from one particular 27 inadequacy in government administration, the court were authorized to remedy all 28 inadequacies in that administration.” Id. And equitable principles independently require that

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U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 an injunction “be no more burdensome to the defendant than necessary to provide complete

2 relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (citation

3 omitted); see also Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 163 (2010) (narrowing

4 injunction in part because the plaintiffs “do not represent a class, so they could not seek to

5 enjoin such an order on the ground that it might cause harm to other parties”).

6

These constitutional and equitable limits apply with special force to injunctions

7 concerning military policies. For example, in Meinhold v. United States Department of Defense,

8 808 F. Supp. 1455 (C.D. Cal. 1993), a district court enjoined the Defense Department, with

9 limited exceptions, “from discharging or denying enlistment to any person based on sexual

10 orientation” in a constitutional challenge brought by a single serviceman. Id. at 1458. The

11 Supreme Court stayed the injunction to the extent it conferred relief on anyone other than

12 the plaintiff, U.S. Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993), and the Ninth Circuit vacated

13 the injunction except to the extent it applied to him as well, Meinhold v. U.S. Dep’t of Def., 34

14 F.3d 1469, 1480 (9th Cir. 1994).

15

The entry of the worldwide injunction sought by Plaintiffs would be similarly

16 indefensible. To the extent that Plaintiffs have cognizable injuries, those injuries would be

17 fully addressed through an injunction concerning their ability either to accede into or

18 continue serving in the military or to access medical treatment. To the extent that other

19 service members or applicants believe they are injured by any of the policies at issue, they are

20 free to bring their own challenges—and a few have done so. See, e.g., Doe v. Trump, No. 1:17-

21 cv-01597 (D.D.C., Filed Aug. 9, 2017). In all events, any injunction here should be limited

22 to Plaintiffs and not extend to other members or applicants not before this Court.

23

Third, the military personnel decisions that Plaintiffs speculate they will one day

24 face—separation, denial of reenlistment, denial of promotion, and denial of medical

25 treatment,—are ordinarily reviewed by a district court in the APA context. See, e.g., Stewart

26 v. Stackley, No. CV 14-0479 (ABJ), 2017 WL 1653147, at *16 (D.D.C. May 1, 2017). That

27 review, of course, occurs after the military decision has been made and is subject to the APA’s

28 arbitrary and capricious standard. A plaintiff also has the opportunity to raise a constitutional

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 38 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 challenge through intra-military procedures such as the military corrections boards. See

2 Chappell v. Wallace, 462 U.S. 296, 303 (1983) (“[Appellant’s] claims based on [the]

3 Constitution, executive orders and Army regulations could readily have been made within

4 the framework of this intramilitary procedure”). Here, however, Plaintiffs ask for the

5 extraordinary remedy of a preliminary injunction to prevent certain adverse personnel actions

6 that have not been taken against them and may never occur. If those actions ever do occur,

7 the ordinary administrative framework will provide a more orderly avenue of relief than the

8 premature intrusion into military affairs they currently seek. See also supra p. 17-18.

9

CONCLUSION

10

For the foregoing reasons, the Court should grant the Defendants’ motion to dismiss

11 for lack of jurisdiction and for failure to state a claim upon with relief can be granted. The

12 Court should also deny Plaintiffs’ motion for a preliminary injunction.

13 Dated: October 23, 2017 14 15

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division

16

BRETT A. SHUMATE

Deputy Assistant Attorney General

17

JOHN R. GRIFFITHS

18

Branch Director

19

ANTHONY J. COPPOLINO

20

Deputy Director

21

/s/ Ryan Parker

RYAN B. PARKER

22

Senior Trial Counsel

23

ANDREW E. CARMICHAEL Trial Attorney

24

United States Department of Justice

Civil Division, Federal Programs Branch

25

Telephone: (202) 514-4336

Email: ryan.parker@usdoj.gov 26

27

Counsel for Defendants

28

DEFENDANTS’ MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION - 39 Stockman, et al. v. Trump, et al., No. 5:17-cv-1799 (JGB)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

 
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. EDCV 17-1799 JGB (KKx)
Title Aiden Stockman et al. v. Donald J. Trump et al.

Date December 22, 2017

Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ Deputy Clerk

Not Reported Court Reporter

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 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.

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I. BACKGROUND
A. 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.
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, 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.)

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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.) 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 welldeveloped 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

1 Neither party has included a copy of the Interim Guidance as an exhibit, but a copy may be found at https://defense.gov/Portals/1/Documents/PDFs/Military-Service-By-TransgenderIndividuals-Interim-Guidance.pdf (last visited December 8, 2017).

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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.)
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 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, and eventually allayed, in the context of ending “Don’t Ask Don’t Tell.” (See Declaration of Eric K.

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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 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 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.)

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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.)
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 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.)

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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. (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 transition-related 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 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.)

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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 includes 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 Kollar-Kotelly 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 unknown; and regardless, Plaintiffs are protected by

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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 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

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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 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-172459, 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 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

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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 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 challenged 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).

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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 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 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

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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, 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. (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,

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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.
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-in-fact. 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 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

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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:
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 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

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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 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. StoneManning, 766 F.3d 1184, 1188 (9th Cir. 2014) (citing Susan B. 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).

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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 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.
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

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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.
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 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

2 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.)

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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 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 sociallyconstructed 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 allowing 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

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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 government-sent 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 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 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.

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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
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.

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 Case 5:17-cv-01799-JGB-KK Document 81 Filed 03/23/18 Page 1 of 2 Page ID #:2353

1 CHAD A. READLER Acting Assistant Attorney General
2 Civil Division

3 BRETT A. SHUMATE Deputy Assistant Attorney General
4 JOHN R. GRIFFITHS
5 Branch Director

6 ANTHONY J. COPPOLINO Deputy Director
7 RYAN B. PARKER
8 ANDREW E. CARMICHAEL United States Department of Justice
9 Civil Division, Federal Programs Branch

10 Telephone: (202) 514-4336 Email: ryan.parker@usdoj.gov
11 Counsel for Defendants
12

13

UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15 AIDEN STOCKMAN; NICOLAS

16

TALBOTT; TAMASYN REEVES; JAQUICE TATE; JOHN DOES 1-2;

17

JANE DOE; and EQUALITY CALIFORNIA,

18

Plaintiffs,

19

v.

20 DONALD J. TRUMP, et al.

21

Defendants.

22

STATE OF CALIFORNIA,

23

Plaintiff-Intervenor,

24 v.

25 DONALD J. TRUMP, et al.

26

27

Defendants.

CASE NO. 5:17-CV-01799-JGB-KK DECLARATION OF RYAN B. PARKER

28

1

Case 5:17-cv-01799-JGB-KK Document 81 Filed 03/23/18 Page 2 of 2 Page ID #:2354

1

I, Ryan B. Parker, swear under penalty of perjury under the laws of the

2 United States to the following:
3

4

1. I am a Senior Trial Counsel at the United States Department of Justice

5 and counsel of record for Defendants in this action. I submit this declaration in in

6 conjunction with Defendants’ Notice.
7

8

2. Attached to this declaration as Exhibit 1 is a true and correct copy of a

9 Presidential Memorandum, dated March 23, 2018, regarding military service by

10 transgender individuals.
11

12

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the

13 foregoing is true and correct.
14 EXECUTED this 23rd day of March 2018.
15

16 /s/ Ryan B. Parker

17 RYAN B. PARKER

18

Senior Trial Counsel

United States Department of Justice

19

Civil Division, Federal Programs Branch

20

21

22

23

24

25

26

27

28

2

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 Case 5:17-cv-01799-JGB-KK Document 124 Filed 09/18/18 Page 1 of 14 Page ID #:6388

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. EDCV 17-01799 JGB (KKx)
Title Aiden Stockman, et al. v. Donald J. Trump, et al.

Date September18, 2018

Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ Deputy Clerk

Not Reported Court Reporter

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 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. BACKGROUND

A. 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;

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(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.)
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 Surgery 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-ByTransgender-Individuals-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.
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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 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 welldeveloped 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.)

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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.)
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 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 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

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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 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 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

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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.

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. C171297-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, 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

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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 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. DISCUSSION
A. 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.
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

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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 femaleowned 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 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

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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 it must decide whether the challenged conduct continues. (Motion at 8.) It clearly does.
B. Constitutional Review
1. 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 reflexively.” 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.) Following 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.

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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.
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. 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

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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, 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. Morales-Santana, 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 sociallyconstructed 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 scrutiny, 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.

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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 transgender 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 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,

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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 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 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.

1 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).

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

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. EDCV 17-1799 JGB (KKx)
Title Aiden Stockman, et al. v. Donald Trump, et al.

Date May 23, 2019

Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ Deputy Clerk

Not Reported Court Reporter

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

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

Proceedings:

Order (1) GRANTING Plaintiffs’ and Plaintiff-Intervenor’s Motions to Vacate the Current Case Schedule (Dkt. Nos. 150, 151); (2) VACATING the Current Case Schedule; and (3) VACATING the June 3, 2019 Hearing (IN CHAMBERS)

Before the Court are two motions to vacate the current case schedule, one filed by Plaintiffs Aiden Stockman, Nicolas Talbott, Tamasyn Reeves, Jaquice Tate, John Does 1-2, Jane Doe, and Equality California (“Plaintiffs”) (“Plaintiffs’ Motion” or “P. Mot.,” Dkt. No. 150), and the other filed by Plaintiff-Intervenor State of California (“California”) (“California’s Motion” or “CA Mot.,” Dkt. No. 151). The Court determines the Motions are appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the papers filed in support of and in opposition to the Motions, the Court GRANTS the Motions. The hearing set for June 3, 2019 is VACATED.

I. BACKGROUND

On September 5, 2017, Plaintiffs filed a complaint against Donald Trump, James Mattis, Joseph Dunford, Richard Spencer, Ryan McCarthy, Heather Wilson, and Elaine Duke (“Defendants”), each in his or her official capacity. (“Complaint,” Dkt. No. 1.) Plaintiffs seek a declaration that Defendants’ policy “to exclude transgender people from federal military service, ban the accession of transgender people into the U.S. military, and prohibit the funding of sex reassignment surgical procedures . . . is unconstitutional” and seek to enjoin Defendants from enforcing that policy. (Compl., Prayer for Relief, ¶¶ 1–2.) On November 8, 2017, California filed a motion to intervene (Dkt. No. 52), which the Court granted on November 16, 2017 (Dkt. No. 66).

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This action is one of four similar challenges brought in various federal district courts across the country. The three other cases are Doe v. Trump, No. 1:17-cv-1597 (D.D.C.); Stone v. Trump, No. 1:17-cv-02459 (D. Md.); and Karnoski v. Trump, No. 2:17-cv-01297 (W.D. Wash.). (Dkt. No. 96 ¶ 1.) In order to litigate the cases as efficiently as possible, the parties to each of the four cases stipulated to a Protective Order and Cross-Use Agreement. (“Agreement,” Dkt. No. 96.) The Agreement provides that any discovery material produced in any of the four actions will also be deemed produced in the other three actions. (Id. ¶ 7.) In response to discovery requests in Karnosky and Stone, Defendants invoked the presidential communications and deliberative process privileges; however, the district courts rejected Defendants’ privilege arguments and ordered them to produce the requested documents. See Karnoski Dkt. No. 204 (Mar. 14, 2018); Karnoski Dkt. No. 299 (Jul. 27, 2018); Stone Dkt. No. 227 (Nov. 30, 2018). On August 1, 2018, Defendants filed a petition for a writ of mandamus (“Mandamus Petition”) from the Ninth Circuit to vacate the Karnoski district court’s July 27, 2018 order and direct the district court to deny the plaintiffs’ motion to compel. See Karnoski Dkt. Nos. 302, 302-1; Trump v. Karnoski, No. 18-72159 (9th Cir.). The two Karnoski orders and the Stone order are stayed pending the Ninth Circuit’s decision on the Mandamus Petition. (P. Mot. at 3.) The Karnoski parties argued the Mandamus Petition before the Ninth Circuit on October 10, 2018. (Id.)
On July 30, 2018, the Court issued a scheduling order in this case setting the discovery cut-off for March 25, 2019. (“Scheduling Order,” Dkt. No. 116.) On February 13, 2019, the parties filed a stipulation to modify the case schedule. (“Stipulation,” Dkt. No. 143.) On February 15, 2019, the Court granted the Stipulation. (Dkt. No. 144.) On February 28, 2019, the Court issued an amended order on the Stipulation, setting the deadline to initiate discovery for June 21, 2019; the deadline for initial designation of expert witnesses for May 24, 2019; and the discovery cut-off for August 5, 2019. (“Amended Scheduling Order,” Dkt. No. 145.) On May 6, 2019, Plaintiffs and California filed their Motions. Defendants filed an opposition on May 13, 2019. (“Opposition,” Dkt. No. 152.) On May 20, 2019, Plaintiffs and California filed replies. (“Plaintiffs’ Reply” or “P. Rep.,” Dkt. No. 155; “California’s Reply” or “CA Rep.,” Dkt. No. 156.)
II. LEGAL STANDARD
Districts courts must enter scheduling orders in actions to “limit the time to join other parties, amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(3). In addition, scheduling orders may “modify the timing of disclosures” and “modify the extent of discovery.” Id. A scheduling order “controls the course of the action unless the court modifies it.” Fed. R. Civ. P. 16(d). Once a scheduling order has been issued pursuant to Rule 16, the “schedule may be modified only for good cause and with the Court’s consent.” Fed. R. Civ. P. 16(b)(4). “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking” to modify the scheduling order. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). If the moving party fails to demonstrate diligence, “the inquiry should end.” Id. Good cause may be found where the moving party shows it assisted the Court with creating a workable scheduling order, that it is unable to comply with the scheduling order’s deadlines due to matters not reasonably foreseeable at the time the scheduling order issued, and that it was diligent in seeking a modification once it became apparent it could not comply with the

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scheduling order. Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) (citations omitted).
III. DISCUSSION
The Court finds good cause exists to modify the scheduling order to allow the parties time to pursue full discovery with the benefit of the Ninth Circuit’s decision on the Mandamus Petition in Karnoski. As Plaintiffs point out, because the parties cannot know when the Ninth Circuit will issue its ruling, “adhering to the current case calendar could foreclose Plaintiffs from obtaining relevant, discoverable evidence currently withheld by Defendants, deposing defense witnesses about that evidence, providing that evidence to Plaintiffs’ experts, or even retaining new and unanticipated experts as needed to analyze that evidence.” (P. Mot. at 7.) Moreover, it makes little sense for the parties to coordinate discovery across the actions through the Agreement only to proceed with discovery in this case as if key discovery disputes relevant to all four cases were not pending before the Ninth Circuit.
Defendants argue the Motions should be denied because little has changed since Plaintiffs agreed to the current schedule three months ago and Plaintiffs have not diligently pursued discovery in that time. (Opp. at 1.) The Court disagrees. At the time the parties stipulated to the current case schedule, some four months had passed since the Ninth Circuit held oral argument on the Mandamus Petition, and Plaintiffs reasonably believed the Ninth Circuit would soon issue a decision. Moreover, the Court finds convincing Plaintiffs’ explanation that they “refrained from propounding additional discovery requests until they had reviewed the responses and documents produced in the other pending action.” (P. Rep. at 3.) It would be unreasonable to penalize Plaintiffs for their adherence to the purposes of the Agreement. Finally, the Court is not convinced that vacating the scheduling order will prejudice Defendants. As Plaintiffs point out, Defendants may challenge any discovery requests they believe are overly burdensome or in violation of the Agreement.1 (Id. at 5.)
IV. CONCLUSION
For the foregoing reasons, the Motions are GRANTED. The Amended Scheduling Order is VACATED and the remaining deadlines set forth therein are SUSPENDED. It is FURTHER ORDERED that the parties are to meet and confer and file a proposed amended schedule to reset these deadlines within 21 calendar days after the Ninth Circuit issues its decision on the Mandamus Petition in Trump v. Karnoski, No. 18-72159 (9th Cir.) (argued Oct. 10, 2018).
IT IS SO ORDERED.

1 Defendants urge the Court, if it “is inclined to defer discovery pending a ruling by the Ninth Circuit[,]” to stay the case until the Ninth Circuit issues its ruling. (Opp. at 5.) The Court declines to stay the case without having before it a properly noticed motion requesting that relief.

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 Case 5:17-cv-01799-JGB-KK Document 165 Filed 08/26/19 Page 1 of 2 Page ID #:7017

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

AIDEN STOCKMAN; et al.,

No. 18-56539

FILED
AUG 26 2019
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Plaintiffs-Appellees, STATE OF CALIFORNIA,

D.C. No. 5:17-cv-01799-JGB-KK Central District of California, Riverside

Intervenor-PlaintiffAppellee,

ORDER

v.

DONALD J. TRUMP, in his official capacity as President of the United States; et al.,

Defendants-Appellants.

Before: TASHIMA, M. SMITH, and BENNETT, Circuit Judges. The December 19, 2018 order holding this case in abeyance is discharged. The joint motion to remand (Docket Entry No. 40) is granted. The district court’s September 18, 2018 order denying defendants’ motion to
dissolve the December 22, 2017 preliminary injunction is vacated. The preliminary injunction is stayed pending the district court’s reconsideration of defendants’ motion to dissolve the injunction and pending any appeal therefrom. This case is remanded to the district court for further proceedings consistent with this court’s decision in Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019).

Case 5:17-cv-01799-JGB-KK Document 165 Filed 08/26/19 Page 2 of 2 Page ID #:7018
All other pending motions are denied as moot. The parties shall bear their own costs on appeal. VACATED and REMANDED.

2

18-56539

 
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1 LATHAM & WATKINS LLP

Marvin S. Putnam (SBN 212839)

2

marvin.putnam@lw.com

Amy C. Quartarolo (SBN 222144)

3

amy.quartarolo@lw.com

Harrison J. White (SBN 307790)

4

harrison.white@lw.com

355 South Grand Avenue, Suite 100

5 Los Angeles, California 90071-1560

Telephone: +1.213.485.1234

6 Facsimile: +1.213.891.8763

7 Attorneys for Plaintiffs Aiden Stockman, Nicolas

8

Talbott, Tamasyn Reeves, Jaquice Tate, John Does 1-2, Jane Doe, and Equality California

9 Counsel continued on Next Page

10

UNITED STATES DISTRICT COURT

11

CENTRAL DISTRICT OF CALIFORNIA

12 AIDEN STOCKMAN, NICOLAS
13 TALBOTT; TAMASYN REEVES; JAQUICE TATE; JOHN DOES 1-2;
14 JANE DOE; and EQUALITY CALIFORNIA,
15 Plaintiffs,
16 v.
17 MARK T. ESPER, in his official
18 capacity as Secretary of Defense; MARK A. MILLEY, in his official
19 capacity as Chairman of the Joint Chiefs of Staff; RICHARD V. SPENCER, in
20 his official capacity as Secretary of the Navy; RYAN D. MCCARTHY, in his
21 official capacity as Secretary of the Army; MATTHEW P. DONOVAN, in
22 his official capacity as Acting Secretary of the Air Force; and KEVIN
23 MCALEENAN, in his official capacity as Acting Secretary of Homeland
24 Security,

CASE NO. 5:17-CV-01799-JGB-KK PLAINTIFFS’ AMENDED COMPLAINT

25

Defendants.

26 STATE OF CALIFORNIA,

27 v.

Plaintiff-Intervenor,

28 MARK T. ESPER, in his official

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1 capacity as Secretary of Defense; MARK A. MILLEY, in his official
2 capacity as Chairman of the Joint Chiefs of Staff; RICHARD V. SPENCER, in
3 his official capacity as Secretary of the Navy; RYAN D. MCCARTHY, in his
4 official capacity as Secretary of the Army; MATTHEW P. DONOVAN, in
5 his official capacity as Acting Secretary of the Air Force; and KEVIN
6 MCALEENAN, in his official capacity as Acting Secretary of Homeland
7 Security,

8

Defendants.

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1 National Center for Lesbian Rights Shannon P. Minter (SBN 168907)
2 sminter@nclrights.org Amy Whelan (SBN 2155675)
3 awhelan@nclrights.org 870 Market Street, Suite 360
4 San Francisco, CA 94102 Telephone: +1.415.392.6257
5 Facsimile: +1.415.392.8442

6

GLBTQ Legal Advocates & Defenders Jennifer Levi (pro hac vice)

7

jlevi@glad.org Mary L. Bonauto (pro hac vice)

8

mbonauto@glad.org 30 Winter Street, Suite 800

9

Boston, MA 02108 Telephone: +1.617.426.1350

10 Facsimile: +1.617.426.3594

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1 I. NATURE OF THE ACTION

2

1. This action, brought on behalf of transgender individuals, seeks to

3 ensure that all qualified Americans have an equal opportunity to serve in the United

4 States military, that transgender individuals who seek to enlist or who serve in the

5 military are free from arbitrary and invidious discrimination, and that the

6 constitutional rights of transgender service members and recruits to autonomy,

7 privacy, and freedom of expression are respected and protected.

8

2. In June 2016, following an exhaustive review supported by reams of

9 data, interviews, and analysis, the Department of Defense (“DOD”) announced that

10 it would reverse its prior unconstitutional policy barring openly transgender people

11 from serving in the military, and would implement a policy allowing transgender

12 people to serve openly in the United States armed forces (“June 2016 Policy”).

13 Since that announcement, and in reliance thereon, numerous American service

14 members followed protocol and informed their chain of command that they are

15 transgender. In addition, as a consequence of the DOD’s announced policy, after

16 years of unlawful exclusion, transgender persons relied on the new policy and

17 sought to enlist and serve their country in the Armed Forces.

18

3. On July 26, 2017, President Donald J. Trump abruptly announced via

19 a series of Twitter statements that the United States military would return to

20 discriminating unlawfully against transgender people solely because of their

21 transgender status. By proclaiming that “the United States Government will not

22 accept or allow Transgender individuals to serve in any capacity in the U.S.

23 Military,” President Trump announced that transgender troops would be barred

24 from serving in our Armed Forces.

25

4. On August 25, 2017, President Trump formalized the government’s

26 policy, directing leaders of the DOD and Department of Homeland Security

27 (“DHS,” and together with the DOD, the “Departments”) to reinstate the ban “on

28 military service by transgender individuals that was in place prior to June 2016.”

ATTORNEYS AT LAW LOS ANGELES

PLAINTIFFS’ AMENDED COMPLAINT

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1 See Memorandum Regarding Military Service by Transgender Individuals, 82 Fed.

2 Reg. 41319 (entered Aug. 30, 2017) (the “August 25 Directive”). Specifically,

3 President Trump directed the Departments (i) to ban the “accession of transgender

4 individuals into military service,” (ii) to “halt all use of DOD or DHS resources to

5 fund sex reassignment surgical procedures for military personnel” except in limited

6 instances, and (iii) to implement a plan to return to the prohibition on military

7 service for transgender people. President Trump ordered then Secretary James N.

8 Mattis to develop a “plan for implementing” his directives by February 21, 2018

9 and further ordered that they “take effect on March 23, 2018.” President Trump’s

10 August 25 Directive did not reference any evidence, facts, or analysis to support

11 the imposition of this categorical ban.

12

5. On February 22, 2018, Secretary Mattis submitted a plan to implement

13 a ban on transgender people serving in the military, as ordered by President Trump

14 in the August 25 Directive. See Mattis Memorandum to the President, February

15 22, 2018 (together with an accompanying report described below, the “Transgender

16 Military Ban”). The plan set forth a series of restrictions exclusively targeting

17 “Transgender persons.” In particular, the plan instructed:

18

a. “Transgender persons1 with a history or diagnosis of gender

19

dysphoria are disqualified from military service, except under . . .

20

limited circumstances,” including “(1) if they have been stable for 36

21

consecutive months in their biological sex prior to accession”; “(2)

22

Service members diagnosed with gender dysphoria after entering into

23

service may be retained if they do not require a change of gender . . .

24

”; and (3) if they are “currently service” and “have been diagnosed

25

with gender dysphoria since the previous administration’s policy took

26

effect and prior to the effective date of this new policy.”

27

28 1
ATTORNEYS AT LAW LOS ANGELES

Emphases throughout this Amended Complaint are added.

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1

b. “Transgender persons who require or have undergone gender

2

transition are disqualified from military service.”

3

c. “Transgender persons without history or diagnosis of gender

4

dysphoria,” and who may thus evade one or both of the above

5

restrictions, may serve only “in their biological sex.”

6

6. Taken together, these instructions implement the President’s August

7 25 Directive to ban transgender persons from serving in conformity with their

8 gender identity—the defining quality of what makes them transgender.

9 Collectively, President Trump’s tweets, the August 25 Directive, and the

10 Transgender Military Ban brand transgender men and women as inherently unfit to

11 serve and place current transgender service members into a separate and unequal

12 class of persons who serve under unequal terms and conditions for retention in

13 service, simply because they are transgender.2

14

7. In a March 23, 2018 memorandum, President Trump acknowledged

15 receipt of the plan submitted to him by Secretary Mattis—which was confirmed to

16 have been developed “[p]ursuant to [the President’s] memorandum of August 25,

17 2017”—and authorized the Secretary of Defense to carry out the instructions

18 included in the plan, effectively banning all future military service by transgender

19 individuals.

20

8. On March 12, 2019, the Office of the Deputy Secretary of Defense

21 issued formal instructions for effectuating the Transgender Military Ban.

22

9. The implementation of the Transgender Military Ban was enjoined

23 until April 2019, at which point it went fully into effect. Since then, no transgender

24 individuals have been permitted to enlist in the military. In addition, any currently

25 serving transgender individuals are subject to discharge if they reveal their

26 transgender status, are diagnosed with gender dysphoria, or seek to transition.

27 28
ATTORNEYS AT LAW LOS ANGELES

2 The plan proposed by Secretary Mattis and adopted as military policy allows for those “diagnosed with gender dysphoria since the previous administration’s policy took effect” to continue in service.

PLAINTIFFS’ AMENDED COMPLAINT

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1 Current service members who already openly identify as transgender serve only on

2 sufferance, on unequal terms with non-transgender troops, and under the pall of

3 stigma cast by the ban.

4

10. Plaintiffs here are (i) Aiden Stockman, Nicolas Talbott, and Tamasyn

5 Reeves, transgender individuals who have taken steps to enlist in the military,

6 (ii) Jaquice Tate and several other openly transgender active service members,

7 proceeding as anonymous plaintiffs, who are affected by the Transgender Military

8 Ban, and (iii) Equality California, the nation’s largest statewide lesbian, gay,

9 bisexual, transgender, and queer (“LGBTQ”) civil rights organization.

10

11. The Transgender Military Ban inflicts serious injuries upon Plaintiffs

11 and Plaintiff EQCA’s members. First, the Transgender Military Ban expressly

12 prevents transgender people from acceding into military service. Second, the

13 Transgender Military Ban causes immediate and concrete injury to the current

14 service member Plaintiffs, each of whom came out as transgender to their chain of

15 command in reliance on the June 2016 Policy lifting the prior ban. These Plaintiffs

16 serve under differential terms that are not applied to non-transgender service

17 members, in addition to being singled out and stigmatized by a policy that deems

18 them unfit. They are also harmed because they serve as an exception to policy.

19 Their peers and command predictably treat them differently in ways that impact

20 their advancement and opportunities. Third, the Transgender Military Ban harms

21 current service members who have not yet publicly identified themselves as

22 transgender by subjecting them to discharge if they do so and by denying them

23 equal access to medical care. Whereas all other service members can obtain the

24 medical care they need, transgender service members are denied that care and are

25 subject to discharge instead. Fourth, the Transgender Military Ban chills the speech

26 and expression of each of the Plaintiffs and Plaintiff EQCA’s members.

27

12. The Transgender Military Ban denies Plaintiffs and their members the

28 equal protection of the laws, their right to freedom of expression, and their right to

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1 liberty and privacy, in violation of the First and Fifth Amendments to the United

2 States Constitution. Accordingly, Plaintiffs seek a declaration that the Transgender

3 Military Ban is unconstitutional, and an injunction preventing Defendants from

4 enforcing it.

5

JURISDICTION AND VENUE

6

13. This court has jurisdiction over the claims pursuant to 28 U.S.C.

7 Sections 1331 and 1343. This Court has further remedial authority under the

8 Declaratory Judgment Act, 28 U.S.C. Sections 2201 and 2202 et seq.

9

14. Venue is proper in the Central District of California under 28 U.S.C.

10 Section 1391(e) because Plaintiffs reside in this judicial district and a substantial

11 part of the events giving rise to this action occurred in this District.

12

PARTIES

13

15. Plaintiff Aiden Stockman is a transgender man who wants to serve his

14 country through military service, and has taken steps to do so. Mr. Stockman was

15 raised and currently resides in California. Mr. Stockman has long been interested

16 in serving his country and intended to join the Air Force. As a young man, Mr.

17 Stockman spoke with friends and neighbors who were stationed at nearby Twenty-

18 Nine Palms Air Force Base to discuss what it is like to serve in the Air Force. Mr.

19 Stockman came out to his family as transgender in the eighth grade. At or about

20 that time, he began seeking medical advice related to gender transition. In June

21 2014, when he was in the eleventh grade, Mr. Stockman began hormone

22 replacement therapy (“HRT”). Later that year, Mr. Stockman took the Armed

23 Services Vocational Aptitude Battery (“ASVAB”) test consistent with his intention

24 of acceding into the military. He hoped to join the Air Force following his

25 graduation from high school, but wanted to complete a double-mastectomy (i.e.,

26 “top surgery”) first. After finding a doctor, Mr. Stockman ultimately made plans

27 to undergo top surgery, planning to enlist thereafter. The June 2016 Policy

28 permitting open service by transgender people gave Mr. Stockman comfort that he

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1 would be able to pursue a career of military service. However, upon learning of

2 the Transgender Military Ban, Mr. Stockman felt crushed knowing that he will no

3 longer be able to pursue his dream of serving his country in the Air Force.

4

16. Plaintiff Nicolas Talbott is a transgender man currently residing in

5 Ohio. After graduating from college with a degree in sociology and criminology,

6 he planned to enlist in the military in pursuit of a career in counter-terrorism. Prior

7 to issuance of the June 2016 Policy, Mr. Talbott contacted military recruiters on

8 several occasions to express his interest in serving his country, but each time he

9 was informed that regulations prohibited his service because he is transgender.

10 After the June 2016 Policy was announced, Mr. Talbott found a recruiter for the

11 Air Force National Guard who advised that he would help him enlist. Mr. Talbott

12 met with the recruiter in December 2016 and filled out paperwork confirming his

13 interest in acceding into the military. The recruiter asked Mr. Talbott to obtain a

14 letter from his doctor confirming that being transgender did not have any adverse

15 effects on his life or his ability to perform military-related duties. The recruiter

16 advised that the next step in the process would be to meet with the regional Military

17 Entrance Processing Station (“MEPS”) for a physical exam and to take the ASVAB

18 test, but he later advised that MEPS would not begin processing for transgender

19 enlistees until mid-2017. Mr. Talbott scheduled his appointment with his doctor,

20 began studying practice ASVAB exams, and was training regularly for the physical

21 exam, all in anticipation of enlisting in 2017. After reviewing Mr. Talbott’s

22 military medical questionnaire, MEPS denied his enlistment for reasons relating to

23 his transgender status and for other reasons as well. Because he still wished to

24 pursue a military career, Mr. Talbott enrolled at Kent State University to participate

25 in a Reserve Officer Training Corps (“ROTC”) program. Mr. Talbott borrowed

26 additional educational loans for that purpose, relying on the expectation of his

27 future eligibility for the military’s loan forgiveness program. He participated in

28 ROTC until May 5, 2019. Because of the military ban, he could not continue

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1 further in ROTC, is not currently eligible for the military’s loan forgiveness

2 program, and cannot access the healthcare benefits that he would have ultimately

3 received after being commissioned to the United States Army. Mr. Talbott intends

4 to re-enroll in an ROTC program or pursue other enlistment options once the ban

5 is lifted.

6

17. Plaintiff Tamasyn Reeves is a transgender woman currently residing

7 in California. Ms. Reeves has wanted to join the Navy since she was 17. Her

8 family has a tradition of service in the military: her grandfather served in the Navy

9 during the Korean War, two of her uncles served in the Air Force, and two of her

10 cousins served in the Navy. Ms. Reeves first spoke to a recruiter at age 21. The

11 recruiter told Ms. Reeves that she was not eligible to enlist because of the

12 military’s then-policy banning LGBTQ individuals from military service.

13 Following issuance of the June 2016 Policy, Ms. Reeves decided to enlist as soon

14 as the final procedures for accession of transgender individuals were solidified and

15 she completed her education. Because the Transgender Military Ban prevents her

16 accession into the military, despite her longstanding desire to do so, Ms. Reeves is

17 currently seeking non-military employment. She recently earned her associates

18 degree in hopes of improving her employment opportunities. However, Ms.

19 Reeves intends to enlist when the Transgender Military Ban is lifted.

20

18. Plaintiff Jaquice Tate is a transgender man currently serving in the

21 Army. He enlisted in 2008 because he wanted a career in which he could take

22 pride. He hopes to serve a twenty-year term. Mr. Tate has served domestically

23 and internationally, including a deployment to Iraq. Currently, he is a Military

24 Police Officer and he has served on drug suppression teams. Each of his command

25 leaders awarded him a Colonel Coin of Excellence and he has received numerous

26 Army Achievement Medals. The Army has approved his application to become a

27 Drill Sergeant. In reliance on the June 2016 Policy, Mr. Tate informed his chain

28 of command of his true gender. His chain of command has supported him

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1 throughout his process of medical transition. However, though selected twice for

2 Drill Sergeant training, he was unable to participate in that training because he

3 would have been required to participate as a female, something that, as a

4 transgender man, he could not do.

5

19. Plaintiff John Doe 1-2 and Jane Doe are active or formerly active duty

6 service members who serve openly as transgender persons. They proceed under

7 pseudonyms for fear of retribution.

8

20. Plaintiff John Doe 1 is a transgender man who has served in the United

9 States Air Force since 2012. John Doe 1 comes from a military family; his father

10 served in the military for 30 years. John Doe 1 had plans to make a career out of

11 military service as well. John Doe 1 was previously stationed in California. John

12 Doe 1 was awarded Academic Achievement and Distinguished Graduate

13 distinctions from the Airmen Leadership School, and received a “Must Promote”

14 performance report. In reliance on the June 2016 Policy permitting open service

15 by transgender service members, John Doe 1 came out to his chain of command in

16 April, 2017. After experiencing firsthand the disparate treatment of transgender

17 airmen now perceived as “second class,” John Doe 1 made the difficult decision to

18 leave the military. John Doe 1 wanted to join the National Guard or the Reserves

19 after his service. A Reserves recruiter reached out to him several times for possible

20 enrollment, and he also spoke to an on-base recruiter for the National Guard. Upon

21 learning he was transgender, however, both recruiters told John Doe 1 that he was

22 ineligible to join.

23

21. Plaintiff John Doe 2 is a transgender man currently serving in the

24 Army. John Doe 2 voluntarily enlisted with the Army to serve his country, to

25 achieve financial security, and to honor his family’s tradition of service. His

26 technical expertise pertains to the operations, diagnostics, and maintenance of the

27 multichannel communications systems necessary for the Army to make real-time

28 strategic and tactical decisions. His position requires Secret-level Security

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1 Clearance. John Doe 2 earned an early promotion waiver to become an Army

2 Specialist and was awarded two Colonel Coins of Excellence. John Doe 2 is on

3 track to receive an Army Commendation Medal award. In reliance on the June

4 2016 Policy, he came out as transgender to his unit, his chain of command, and his

5 medical providers. John Doe 2 has begun medical transition; he plans to renew his

6 contract and remain in the Army.

7

22. Plaintiff Jane Doe is a transgender woman currently serving in the Air

8 Force. In the seven years since she enlisted, Jane Doe has been deployed twice.

9 She is currently stationed abroad as a Staff Sergeant. Jane Doe joined the military

10 in hopes of serving her country, achieving financial stability and garnering personal

11 skills such as discipline, self-respect and service of others. After the ban on

12 transgender service was lifted by the June 2016 Policy, Jane Doe came out to her

13 chain of command. She found her military colleagues to be supportive. Jane Doe

14 carefully reviewed the guidance and policies issued by the DOD, and after meeting

15 with her doctors, she began her medical transition in fall 2017. Jane Doe has

16 received local quarterly awards, early promotions, two achievement medals and

17 one commendation medal. In Spring 2018, she was promoted to Technical

18 Sergeant, and she is on track for consideration to be promoted to Master Sergeant.

19 Despite continuing to serve with distinction, Jane Doe is concerned that the

20 Transgender Military Ban will compromise her ability to achieve future

21 promotions, jeopardize her medical benefits, and ultimately foreclose her ability to

22 continue her career in the military.

23

23. Plaintiff Equality California (“EQCA”) is an I.R.S. 501(c)(4)

24 organization dedicated to LGBTQ civil rights. Specifically, EQCA is dedicated to

25 combatting discrimination and injustice on the basis of sexual orientation and

26 gender identity, and to protecting the fundamental rights of those within the

27 LGBTQ community and the vulnerable communities of which they are a part. Its

28 more than 500,000 members include transgender individuals in active military

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1 service, transgender military veterans, and transgender individuals who have taken

2 steps to serve and ultimately intend to pursue long-term careers in the United States

3 Armed Forces. EQCA’s membership also includes family members and

4 dependents of openly transgender individuals, each of whom share an interest in

5 ensuring that all qualified individuals wishing to serve their country through

6 military service are permitted to do so regardless of their gender identity.

7

24. Defendant Mark T. Esper is the United States Secretary Defense.

8 Secretary Esper directs the Department of Defense, which has been charged with

9 execution and implementation of the President’s unlawful transgender military ban.

10

25. Defendant Mark A. Milley is a United States Marine Corps General

11 and serves as the current Chairman of the Joint Chiefs of Staff. In conjunction with

12 co-defendants, General Milley has been charged with execution and

13 implementation of the unlawful Transgender Military Ban.

14

26. Defendant Richard V. Spencer is the United States Secretary of the

15 Navy. Secretary Spencer directs the Department of the Navy and the United States

16 Marine Corps, which have been charged with execution and implementation of the

17 unlawful Transgender Military Ban.

18

27. Defendant Ryan D. McCarthy is the United States Secretary of the

19 Army. Secretary McCarthy directs the Department of the Army, which has

20 been charged with execution and implementation of the unlawful Transgender

21 Military Ban.

22

28. Defendant Matthew P. Donovan is the Acting United States Secretary

23 of the Air Force. He directs the Department of the Air Force, which has been

24 charged with execution and implementation of the unlawful Transgender Military

25 Ban.

26

29. Defendant Kevin McAleenan is the Acting United States Secretary of

27 Homeland Security. He directs the DHS, which is responsible for the

28 administration and operation of the United States Coast Guard, and which has been

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1 charged with execution and implementation of the unlawful Transgender Military

2 Ban.3

3

FACTUAL BACKGROUND

4 A. 5

Following an Exhaustive Review in 2015-2016, the DOD Concluded that Open Service by Transgender People Best Served the Interests of U.S. Armed Forces

6

30. In May 2014, then-Secretary of Defense Chuck Hagel directed the

7 DOD to review whether transgender people should be permitted to serve openly in

8 the U.S. armed forces.

9

31. In August 2014, the DOD amended its physical disability policy to

10 remove references to mandatory exclusion based on “sexual gender and identity

11 disorders,” and issued a new regulation instructing each branch of the armed forces

12 to assess whether there was any justification to maintain a ban on service by openly

13 transgender persons.

14

32. In issuing this regulation, Secretary Hagel stated that “every qualified

15 American who wants to serve our country should have an opportunity to do so if

16 they fit the qualifications and can do it.”

17

33. Secretary Hagel was succeeded as Secretary of Defense by Secretary

18 Ashton B. Carter. In July 2015, Secretary Carter announced that the military would

19 comprehensively analyze whether there was any justification to maintain the ban

20 on service by openly transgender persons. Accordingly, Secretary Carter created a

21 working group to address this issue including the Armed Services, the Joint Chiefs

22 of Staff, the service secretaries, and personnel, training, readiness, and medical

23 specialists from across the DOD. The lengthy and comprehensive review process

24 that followed included an examination of all available data, including but not

25 limited to existing studies and research and input from transgender service

26

27 28
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3 Several of the officials named in the Complaint, filed September 5, 2017, are no longer serving in the same roles. The currently serving officials are automatically substituted under Federal Rule of Civil Procedure 25(d).

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1 members, commanding officers who supervised transgender service members,

2 military readiness and personnel experts, outside expert groups, and medical

3 professionals. The review process also included a careful analysis of the eighteen

4 other countries that permit military service by openly transgender people. Doctors,

5 employers, and insurance companies were consulted regarding the provision of

6 medical care to transgender people.

7

34. The DOD also commissioned the RAND Corporation—a defense

8 consultancy formed after World War II to connect military planning with research

9 and development decisions, and which now operates as an independent think tank

10 financed by the U.S. government—to determine the impact of permitting

11 transgender service members to serve openly. The study titled Assessing the

12 Implications of Allowing Transgender Personnel to Serve Openly (the “RAND

13 Study”) ultimately concluded that allowing transgender people to serve openly

14 would cost little and have no significant impact on unit readiness. As for the

15 potential impact on healthcare costs, the RAND Study concluded that health care

16 costs for transgender service members, including costs related to gender transition-

17 related treatment, would “have little impact on and represents an exceedingly small

18 proportion of [DOD’s] overall health care expenditures.”

19

35. Based on the results of this comprehensive review process, on June

20 30, 2016, the DOD announced its conclusion that open transgender service would

21 best serve the military’s interests in recruiting and retaining the most highly

22 qualified personnel. In issuing the June 2016 Policy, Secretary Carter explained

23 that this conclusion was based on a number of considerations, including inter alia:

24 (a) the fact that thousands of transgender people already serve, and that the military

25 has already invested hundreds of millions of dollars to train them collectively;

26 (b) that the military benefits by retaining individuals who are already trained and

27 who have already proven themselves; (c) the need to provide both transgender

28 service members and their commanders with clear guidance on questions such as

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1 deployment and medical treatment; and (d) the principle that “Americans who want

2 to serve and can meet our standards should be afforded the opportunity to compete

3 to do so.”

4

36. Secretary Carter announced that “[e]ffective immediately, transgender

5 Americans may serve openly. They can no longer be discharged or otherwise

6 separated from the military just for being transgender.” This unequivocal statement

7 was accompanied by the formal issuance of Directive-Type Memorandum 16-005,

8 Military Service of Transgender Service Members, which lifted the ban on military

9 service and accession by openly transgender people. Directive-Type Memorandum

10 16-005 sets forth the DOD’s conclusion, based on thorough review and analysis,

11 that: 12 13 14 15 16 17 18 19 20

The defense of the Nation requires a well-trained, allvolunteer force comprised of Active and Reserve Component Service members ready to deploy worldwide on combat and operational missions. The policy of the Department of Defense is that service in the United States military should be open to all who can meet the rigorous standards for military service and readiness. Consistent with the policies and procedures set forth in this memorandum, transgender individuals shall be allowed to serve in the military. These policies and procedures are premised on my conclusion that open service by transgender Service members while being subject to the same standards and procedures as other members with regard to their medical fitness for duty, physical fitness, uniform and grooming, deployability, and retention, is consistent with military readiness and with strength through diversity.

21 In accordance with Directive-Type Memorandum 16-005, transgender people

22 were to be permitted to enlist in the U.S. military and openly serve beginning on

23 July 1, 2017.

24

37. In furtherance of its conclusions and in an effort to consistently and

25 effectively implement this change in policy, the DOD took the following actions:

26

 In September 2016, the DOD issued an implementation handbook

27

entitled Transgender Service in the United States Military setting forth

28

guidance and instructions to both military service members and

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1

commanders regarding how to understand and implement the new

2

policies enabling open service of transgender service members.

3

 On October 1, 2016, the Office of the Undersecretary of Defense for

4

Personnel and Readiness issued DOD Instruction 1300.28 entitled In-

5

Service Transition for Transgender Service Members. The instruction set

6

forth further guidance to ensure open service by transgender service

7

members, including details regarding revisions to medical treatment

8

provisions.

9

 The Acting Assistant Secretary of Defense for Health Affairs issued a

10

memorandum entitled Guidance for Treatment of Gender Dysphoria for

11

Active and Reserve Component Service Members.

12

 On November 29, 2016, the DOD revised Directive 1020.02E, Diversity

13

Management and Equal Opportunity in the DOD, expressly to prohibit

14

discrimination and harassment on the basis of gender identity.

15

38. In line with the guidance issued by the DOD, the United States Coast

16 Guard adopted similar policies and procedures for service by transgender service

17 members.

18 B. Defendants Institute an Arbitrary Ban on Transgender Service

19

Members

20

39. In a series of statements released via Twitter on July 26, 2017,

21 Defendant President Donald J. Trump abruptly announced that the United States

22 military would return to banning military service by transgender people.

23

40. He tweeted: “After consultation with my Generals and military

24 experts, please be advised that the United States Government will not accept or

25 allow Transgender individuals to serve in any capacity in the U.S. Military. Our

26 military must be focused on decisive and overwhelming victory and cannot be

27 burdened with the tremendous medical costs and disruption that transgender in the

28 military would entail. Thank you.”

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1

41. This July 26, 2017 announcement was rendered without any

2 significant study or analysis and lacks a rational basis.

3

42. Shortly after the Twitter announcement, members of both major

4 political parties criticized this abrupt change in policy, and fifty six former generals

5 and admirals issued a public statement denouncing the new policy.

6

43. Less than one month following his initial Twitter statement,

7 Defendant President Trump issued the August 25 Directive formalizing the

8 administration’s policy. The August 25 Directive orders co-Defendants (i) to ban

9 the “accession of transgender individuals into military service,” (ii) to “halt all use

10 of DOD or DHS resources to fund sex reassignment surgical procedures for

11 military personnel” except in limited instances, and (iii) to implement a plan to

12 return to the prohibition on military service for transgender people, including those

13 current service members who, in reliance on the June 2016 Policy, came out to their

14 command.

15

44. Similar to the July 26, 2017 Twitter announcement, the August 25

16 Directive was rendered without any significant study or analysis and lacks a

17 rational basis.

18

45. The stated bases offered in support of Defendants’ August 25

19 Directive are pretextual, arbitrary, capricious, and unsupported by facts, evidence,

20 or analysis. Indeed, the DOD previously concluded in Directive Type

21 Memorandum 16-005, after more than a year of exhaustive analysis, that “open

22 service by transgender Service members . . . is consistent with military readiness,”

23 as well as the “defense of the Nation” generally. Since issuance of Directive Type

24 Memorandum 16-005, transgender people have been serving openly without

25 incident or any negative impact upon military readiness, lethality, unit cohesion, or

26 the national defense generally.

27

46. The government-commissioned RAND Report concluded that the

28 “costs of gender transition related healthcare treatment are relatively low,” and

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1 amount to possible increases of only between “$2.4 million and $8.4 million

2 annually, representing a 0.04% to 0.13% increase in active-component healthcare

3 expenditures.”

4

47. In contrast, separating and replacing currently serving transgender

5 service members would be costly and cause disruption, and also would undermine

6 unit cohesion, respect for military authority, and morale. Research from the Naval

7 Postgraduate School published by the Palm Center in August 2017 (the “Palm

8 Center Report”) concludes that the “financial cost of fully implementing President

9 Trump’s ban on transgender service members would be $960 million,” assuming

10 the military acted to expel the estimated 12,800 transgender service members and

11 needed to replace them. Even assuming the military acted to expel and replace

12 only 1,320 transgender service members, which was the RAND Report’s lowest

13 estimate of the total number of active transgender service members, the Palm

14 Center Report indicates the financial cost of fully implementing President Trump’s

15 ban would still be at least $99 million.

16

48. The August 25 Directive instructed Secretary Mattis to submit to the

17 President by February 21, 2018 a “plan for implementing both the general policy .

18 . . and specific directives” that the August 25 Directive contained. It further

19 instructed Secretary Mattis to determine “how to address transgender individuals

20 currently serving.”

21

49. Just days after the August 25 Directive was issued, Secretary Mattis

22 issued a statement on “Military Service by Transgender Individuals,” in which he

23 stated that he had “received the Presidential Memorandum” and would “carry out

24 the president’s policy direction.”

25 C. Secretary Mattis Delivers the President’s Requested Implementation

26

Plan to Effectuate the August 25 Directive

27

50. After Secretary Mattis issued his statement on “Military Service by

28 Transgender Individuals,” he then issued two additional memoranda, one providing

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1 “Interim Guidance” and the other directing the development of an Implementation

2 Plan. He stated in the “Interim Guidance” that he intended to “comply with the

3 Presidential Memorandum” and “present the president with a plan to implement

4 the [August 25 Directive] on the required timeline.” In the second memorandum,

5 a “Terms of Reference,” Secretary Mattis stated that he would empanel “experts”

6 to “develop[] an Implementation Plan on military service by transgender

7 individuals, to effect the [August 25 Directive].”

8

51. On or around February 22, 2018, Secretary Mattis delivered to the

9 President the requested Implementation Plan in accordance with the President’s

10 timeline as set forth in the August 25 Directive. It consists of a memorandum from

11 Secretary Mattis to the President entitled “Military Service by Transgender

12 Individuals,” and a document entitled “Department of Defense Report and

13 Recommendations on Military Service by Transgender Persons,” totaling 44 pages

14 combined.

15

52. The Transgender Military Ban is facially discriminatory and prohibits

16 transgender military service, as required by the President’s August 25 Directive.

17

53. First, it generally bans from service anyone with a history of gender

18 dysphoria, a condition associated almost exclusively with transgender persons.

19 Second, it bans anyone who undergoes or requires gender transition. Third, to the

20 extent that there are any individuals who identify as transgender but do not fall

21 under the first two categories, the Transgender Military Ban allows them to serve

22 only in their “biological sex.” Thus, they may not serve unless they suppress the

23 precise characteristic that defines them as transgender.

24

54. The Transgender Military Ban effectuates the President’s intended

25 policy as articulated in his July 2017 tweets and the August 25 Directive—that

26 openly transgender persons are generally barred from serving in conformity with

27 their gender identity and from receiving medically necessary transition-related

28 care.

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1

55. The Transgender Military Ban contains a limited exception for service

2 members who came out in reliance on the June 2016 Policy. The August 25

3 Directive explicitly contemplated this exception when it ordered that Secretary

4 Mattis “determine how to address transgender individuals currently serving in the

5 United States military.” This limited exemption, which grandfathers in the small

6 group of transgender service members who came out in reliance on the open service

7 policy, “is and should be deemed severable from” the remainder of the policy

8 “should [DOD’s] decision to exempt these Service members be used by a court as

9 a basis for invalidating the entire policy.” Those who came out as transgender in

10 reliance on the June 2016 Policy are thus forced to serve under an exception that

11 requires them to serve only on sufferance, under a general policy that stigmatizes

12 them by branding them as inferior, unfit, and a danger to their colleagues, and under

13 differential terms of service than their non-transgender peers.

14

56. In a March 23, 2018 memorandum entitled “Military Service by

15 Transgender Individuals,” President Trump acknowledged receipt of and approved

16 the Transgender Military Ban, which had been developed “[p]ursuant to [the

17 President’s] memorandum of August 25, 2017,” and authorized the Secretary of

18 Defense to carry out the Implementation Plan.

19

57. On March 12, 2019, the military issued instructions as to how each

20 branch of service is to carry out the Transgender Military Ban.

21

58. The Transgender Military Ban went into effect on April 12, 2019.

22

FIRST CLAIM FOR RELIEF

23

Fifth Amendment – Equal Protection

24

(against all Defendants)

25

59. Plaintiffs re-allege and incorporate by reference the preceding

26 allegations in this Complaint as if fully set forth herein.

27

60. The Due Process Clause of the Fifth Amendment prohibits the federal

28 government from denying persons the equal protection of the laws.

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1

61. Defendants’ military policy excluding transgender persons from

2 eligible military service discriminates against Plaintiffs and Plaintiff’s members

3 based on their sex and transgender status, without lawful justification, in violation

4 of the Equal Protection component of the Due Process Clause of the Fifth

5 Amendment.

6

62. Defendants’ exclusion of transgender persons from military service

7 lacks a rational basis, is arbitrary, and cannot be justified by any government

8 interest.

9

63. Defendants’ military policy denying equal health benefits to

10 transgender persons also discriminates against Plaintiffs and Plaintiff’s members

11 based on their sex and transgender status, without lawful justification, in violation

12 of the Equal Protection component of the Due Process Clause of the Fifth

13 Amendment.

14

64. Defendants’ action to deny transgender persons equal health benefits

15 lacks a rational basis, is arbitrary, and cannot be justified by any government

16 interest.

17

65. Defendants’ above-described discrimination against transgender

18 persons—a discrete and insular group that lacks the power to protect its rights

19 through the legislative process, and one that has suffered a history of targeted

20 discrimination and exclusion—is not narrowly tailored to advance any important

21 or compelling government interest.

22

66. As a result of Defendants’ commencement and enforcement of the

23 Transgender Military Ban, Plaintiffs and Plaintiff’s members have suffered injuries

24 and will suffer further irreparable harm to their constitutional rights under the Fifth

25 Amendment if the directive is not declared unconstitutional and enjoined.

26

67. Plaintiffs have no adequate remedy at law.

27

28

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1

SECOND CLAIM FOR RELIEF

2

Fifth Amendment – Due Process

3

(against all Defendants)

4

68. Plaintiffs re-allege and incorporate by reference the preceding

5 allegations in this Complaint as if fully set forth herein.

6

69. The Due Process Clause of the Fifth Amendment prohibits the federal

7 government from depriving individuals of their property or other interests without

8 due process of law.

9

70. The Due Process Clause of the Fifth Amendment requires, at a

10 minimum, that government action have some rational basis before depriving any

11 person of his or her property or liberty interests.

12

71. The June 2016 Policy permitting transgender persons to serve openly

13 in the military, together with reliance by Plaintiffs and Plaintiff’s members on that

14 policy, created a protected interest in their ability to continue serving in the military

15 as openly transgender persons.

16

72. Defendants’ current policy deprives Plaintiffs and Plaintiff’s members

17 of their protected interests in continued military service as openly transgender

18 persons.

19

73. Defendants’ deprivation of Plaintiffs’ and Plaintiff’s members’

20 protected interests in continued military service as openly transgender persons is

21 arbitrary and without any rational basis.

22

74. As a result of Defendants’ implementation and enforcement of the

23 Transgender Military Ban, Plaintiffs and Plaintiff’s members have suffered injuries

24 and will suffer further irreparable harm to their constitutional rights under the Fifth

25 Amendment if it is not declared unconstitutional and enjoined.

26

75. Plaintiffs have no adequate remedy at law.

27

28

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1

THIRD CLAIM FOR RELIEF

2

Fifth Amendment – Right to Privacy

3

(against all Defendants)

4

76. Plaintiffs re-allege and incorporate by reference the preceding

5 allegations in this Complaint as if fully set forth herein.

6

77. The Due Process Clause of the Fifth Amendment grants Plaintiffs and

7 Plaintiff’s members constitutional liberties and a fundamental right to privacy that

8 encompasses and protects Plaintiffs’ and Plaintiff’s members’ right to self-

9 identification and self-determination as transgender individuals who live, form

10 intimate relationships, work, and pursue happiness and meaning as the gender, with

11 which they identify.

12

78. The Due Process Clause of the Fifth Amendment requires, at a

13 minimum, that government action have some rational basis before depriving any

14 person of their liberty interests.

15

79. Defendants’ Transgender Military Ban impermissibly burdens

16 Plaintiffs’ and Plaintiff’s members’ fundamental liberty to live consistently with

17 their gender identity, and unlawfully impinge upon Plaintiffs’ privacy by

18 penalizing and stigmatizing them for expressing a fundamental aspect of their

19 personal identity.

20

80. Defendants’ policy that excludes transgender persons from service in

21 and accession into the military is arbitrary and lacks any rational basis.

22

81. As a result of Defendants’ policy, Plaintiffs and Plaintiff EQCA’s

23 members have suffered injuries and will suffer further irreparable harm to their

24 constitutional rights under the Fifth Amendment if the directive is not declared

25 unconstitutional and enjoined.

26

82. Plaintiffs have no adequate remedy at law.

27

28

ATTORNEYS AT LAW LOS ANGELES

PLAINTIFFS’ AMENDED COMPLAINT

21

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1

FOURTH CLAIM FOR RELIEF

2

First Amendment – Retaliation for Free Speech & Expression

3

(against all Defendants)

4

83. Plaintiffs re-allege and incorporate by reference the preceding

5 allegations in this Complaint as if fully set forth herein.

6

84. The First Amendment grants Plaintiffs the constitutional right to

7 freedom of speech and expression.

8

85. By banning military service by transgender people, Defendants’

9 Transgender Military Ban violates Plaintiffs’ and Plaintiff’s members’ rights of

10 free speech and expression under the First Amendment by impermissibly

11 restricting, punishing, and chilling speech and communicative conduct that would

12 tend to identify Plaintiffs and Plaintiff’s members as transgender people. The

13 Transgender Military Ban impermissibly burdens such speech on the basis of the

14 content and viewpoint of such speech.

15

86. As a result of Defendants’ implementation and enforcement of the

16 Transgender Military Ban, Plaintiffs and Plaintiff’s members have suffered injuries

17 and will suffer further irreparable harm to their constitutional rights under the First

18 Amendment if they are not declared unconstitutional and enjoined.

19

87. Plaintiffs have no adequate remedy at law.

20

PRAYER FOR RELIEF

21

WHEREFORE Plaintiffs pray for judgment on their Complaint as follows:

22

1. That this Court find and declare that Defendants’ policy that excludes

23

transgender people from federal military service and bans the

24

accession of transgender people into the U.S. military is

25

unconstitutional;

26

2. That Defendants, and their officers, agents, servants, employees, and

27

attorneys, and those persons in active concert or participation with

28

them, preliminarily and permanently be enjoined from enforcing a

ATTORNEYS AT LAW LOS ANGELES

PLAINTIFFS’ AMENDED COMPLAINT

22

CASE NO. 5:17-CV-01799 – JGB – KK

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1

policy that excludes transgender people from serving or enlisting in

2

the military;

3

3. That Plaintiffs be awarded their costs and reasonable attorneys’ fees;

4

and

5

4. For such other relief as the Court may deem just and proper.

6

7 Dated: October 11, 2019

Respectfully submitted,

8

LATHAM & WATKINS LLP

9

10

By /s/ Amy C. Quartarolo

11

Marvin S. Putnam

Amy C. Quartarolo

12

Harrison J. White

Attorneys for Plaintiffs

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ATTORNEYS AT LAW LOS ANGELES

PLAINTIFFS’ AMENDED COMPLAINT

23

CASE NO. 5:17-CV-01799 – JGB – KK

 
 Case 5:17-cv-01799-JGB-KK Document 171 Filed 10/11/19 Page 1 of 14 Page ID #:7137

1 XAVIER BECERRA Attorney General of California
2 MARK R. BECKINGTON Supervising Deputy Attorney General
3 AMIE L. MEDLEY Deputy Attorney General
4 LARA HADDAD Deputy Attorney General
5 State Bar No. 319630 300 South Spring Street, Suite 1702
6 Los Angeles, CA 90013 Telephone: (213) 269-6250
7 Fax: (916) 731-2124 E-mail: Lara.Haddad@doj.ca.gov
8 Attorneys for State of California

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE CENTRAL DISTRICT OF CALIFORNIA

11

RIVERSIDE DIVISION

12

13

AIDEN STOCKMAN; NICOLAS

Case No. 5:17-CV-01799-JGB-KK

14 TALBOTT; TAMASYN REEVES;

JAQUICE TATE; JOHN DOES 1-2; PLAINTIFF-INTERVENOR

15 JANE DOE; and EQUALITY

STATE OF CALIFORNIA’S FIRST

CALIFORNIA,

AMENDED COMPLAINT

16

Plaintiffs, Judge:

The Honorable Jesus G.

17

Bernal

v.

Trial Date: 11/17/2020

18

Action Filed: 9/5/2017

19 MARK T. ESPER, in his official capacity as Secretary of Defense;
20 MARK A. MILLEY, in his official capacity as Chairman of the Joints
21 Chiefs of Staff; RICHARD V. SPENCER, in his official capacity as
22 Secretary of the Navy; RYAN D. MCCARTHY, in his official capacity
23 as Secretary of the Army; MATTHEW P. DONOVAN, in his
24 official capacity as Acting Secretary of the Air Force; and KEVIN K.
25 MCALEEN, in his official capacity as Acting Secretary of Homeland
26 Security,

27

Defendants.

28

1

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1 STATE OF CALIFORNIA,
2 Plaintiff-Intervenor,
3 v.
4

5 MARK T. ESPER, in his official capacity as Secretary of Defense;
6 MARK A. MILLEY, in his official capacity as Chairman of the Joints
7 Chiefs of Staff; RICHARD V. SPENCER, in his official capacity as
8 Secretary of the Navy; RYAN D. MCCARTHY, in his official capacity
9 as Secretary of the Army; MATTHEW P. DONOVAN, in his
10 official capacity as Acting Secretary of the Air Force; and KEVIN K.
11 MCALEEN, in his official capacity as Acting Secretary of Homeland
12 Security,

13

Defendants.

14

15

INTRODUCTION

16

1. The State of California brings this First Amended Complaint-in-

17 Intervention to protect itself and its residents from a facially discriminatory policy

18 that targets transgender individuals who wish to serve their country and their state.

19

2. California brings this action to ensure that the health, well-being, and

20 economic interests of the State and its residents are not unconstitutionally infringed

21 by the federal government’s implementation of a ban on military service by

22 transgender individuals and a policy that denies federal funding for transgender

23 service members to access certain medical procedures on the basis of their sex,

24 gender identity, or gender expression.

25

JURISDICTION AND VENUE

26

3. This court has jurisdiction over the claims under 28 U.S.C. sections

27 1331 and 1343. This court has further remedial authority under the Declaratory

28 Judgment Act, 28 U.S.C sections 2201 and 2202, et seq.

2

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1

4. Venue is proper in the Central District of California under 28 U.S.C.

2 section 1391, subdivision (e) because, on information and belief, plaintiffs in this

3 action reside in this judicial district and a substantial part of the events giving rise

4 to this action occurred in this district.

5

PARTIES

6 I. PLAINTIFF-INTERVENOR STATE OF CALIFORNIA

7

5. The State of California, represented by and through its Attorney

8 General, is a sovereign State of the United States of America.

9

6. Governor Gavin Newsom is the chief executive officer of the State.

10 The Governor is responsible for overseeing the operations of the State and ensuring

11 that its laws are faithfully executed. As the leader of the executive branch, the

12 Governor is the chief of California’s executive branch agencies, including the

13 Military Department. CAL. CONST. art. V, § 13; Cal. Mil. & Vet. Code § 50. The

14 Governor is also the commander-in-chief of the California National Guard and calls

15 upon it to aid in times of emergency. Cal. Mil. & Vet. Code §§ 140, 146, subd. (a).

16

7. California has a quasi-sovereign interest in protecting the health,

17 safety, and well-being of its residents, including protecting its residents from

18 unlawful discrimination and the harms that result. California’s interest in

19 preventing and remedying injuries to the public’s health, safety, and well-being

20 extends to all of the state’s residents, including individuals who are transgender,

21 individuals who suffer indirect injuries, and members of the public.

22

8. California also has a quasi-sovereign interest in ensuring that its

23 residents are not excluded from the benefits that flow from participation in the

24 federal system, including the rights and privileges provided by the United States

25 Constitution.

26

9. California has a proprietary interest in protecting its economic health

27 from the loss of military service and advancement opportunities for Californians

28 who are transgender, and the attendant loss to California of employment, property,

3

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1 and sales-tax revenues that are contributed by transgender service members and

2 their families.

3

10. California also has a proprietary interest in the funds received by its

4 public universities in the form of tuition from students who participate in Reserve

5 Officer Training Corps (ROTC) programs on state campuses, including by means

6 of ROTC scholarships from the United States Armed Services, which are

7 diminished by the exclusion of transgender students who are denied participation in

8 ROTC programs on state campuses.

9

11. California has a sovereign interest in protecting its territory and lands,

10 including from harm caused by natural disasters such as wildfires, landslides,

11 flooding, and earthquakes. Excluding transgender Californians from the California

12 National Guard results in diminished numbers of service members who can provide

13 emergency response and disaster mitigation.

14

12. California also has a sovereign interest in enforcing its anti-

15 discrimination laws, including the Unruh Civil Rights Act, which prohibits

16 discrimination on the basis of sex, gender identity, or gender expression. Cal. Civ.

17 Code § 51.

18

13. The members of the California National Guard are dedicated to

19 safeguarding the lives, property, and economy of the State of California. The

20 California National Guard currently includes approximately 18,000 service

21 members. California is home to 31 major military installations, including four used

22 by its National Guard.

23

14. The National Guard provides vital emergency services to California

24 and its citizens. In 2017 and 2018, this included responding to the massive

25 wildfires throughout Northern and Southern California, and preparing to respond to

26 the possible collapse of the Oroville Dam.

27

28

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1

15. Service members and recruits in the California National Guard are

2 subject to the Department of Defense’s personnel and accession policies for

3 military service, including the transgender military service ban challenged here.

4 II. DEFENDANTS

5

16. Defendant Mark T. Esper is the Secretary of the Department of

6 Defense, and he directs the Department of Defense. His predecessor was then-

7 Secretary James N. Mattis.

8

17. Defendant Mark A. Milley is a United States Army General and serves

9 as the current Chairman of the Joint Chiefs of Staff. His predecessor was then-

10 Chairman Joseph Francis Dunford, Jr. In conjunction with co-defendants, General

11 Milley has been charged with execution and implementation of the President’s

12 unlawful prohibition on military service by transgender individuals.

13

18. Defendant Richard V. Spencer is the United States Secretary of the

14 Navy. Secretary Spencer directs the Department of the Navy and the United States

15 Marine Corps, which have been charged with execution and implementation of the

16 President’s unlawful prohibition on military service by transgender individuals.

17

19. Defendant Ryan D. McCarthy is the United States Secretary of the

18 Army. Secretary McCarthy directs the Department of the Army, which has been

19 charged with execution and implementation of the President’s unlawful prohibition

20 on military service by transgender individuals.

21

20. Defendant Matthew P. Donovan is the Acting United States Secretary

22 of the Air Force, and he directs the Department of the Air Force. His predecessor

23 was then-Secretary Heather A. Wilson. The Department of the Air Force has been

24 charged with execution and implementation of the President’s unlawful prohibition

25 on military service by transgender individuals.

26

21. Defendant Kevin K. McAleenan is the Acting United States Secretary

27 of Homeland Security, and he directs the Department of Homeland Security. He

28 was preceded by then Secretary Kirstjen M. Neilsen and Acting Secretary Elaine C.

5

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1 Duke. The Department of Homeland Security is responsible for the administration

2 and operation of the United States Coast Guard, and which has been charged with

3 execution and implementation of the President’s unlawful prohibition on military

4 service by transgender individuals.

5

ALLEGATIONS

6

22. The United States military has a history of excluding transgender

7 individuals from serving in the military.

8

23. In 2014, the military issued its first report analyzing the military’s ban

9 on service by openly transgender individuals. The report found that there was no

10 compelling reason for banning transgender individuals from military service.

11

24. In July 2015, then-Secretary of Defense Ashton Carter created a work

12 group composed of senior representatives from each of the military departments,

13 Joint Staff, and relevant members of the Office of the Secretary of Defense to

14 formulate policy options regarding military service by transgender individuals.

15 On or about July 13, 2015, Secretary Carter also terminated the practice of

16 involuntarily separating or denying enlistment or continuation of active or reserve

17 service on the basis of gender identity, unless it went through an approval process

18 chaired by the Under Secretary of Defense for Personnel and Readiness.

19

25. On June 30, 2016, after a year-long, research-based assessment, which

20 included the leadership of the armed services, military medical and personnel

21 experts, transgender service members, outside medical experts, advocacy groups,

22 and the RAND Corporation, the Department of Defense lifted its categorical ban on

23 military service by transgender individuals. This was announced in Secretary

24 Carter’s memorandum to military officials, Directive-type Memorandum 16-005,

25 “Military Service of Transgender Service Members.”

26

26. After lifting the categorical ban, the Department of Defense issued

27 guidance regarding the implementation of a policy that would allow openly

28 transgender individuals accession into military service. The policy was to be

6

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1 implemented in stages over 12 months. The process included training for the entire

2 force, and set July 1, 2017, as the date that the military would allow accession by

3 transgender recruits.

4

27. After the ban was lifted, scores of transgender individuals currently

5 serving in the armed forces identified themselves as transgender to their command

6 in reliance upon the new policy.

7

28. On or around June 30, 2017, then-Secretary Mattis delayed the date

8 that the military would allow accession by openly transgender individuals to

9 January 1, 2018.

10

29. On July 26, 2017, President Donald J. Trump, announced via Twitter

11 that transgender people would no longer be permitted to serve “in any capacity in

12 the U.S. military.” The announcement was rendered without any significant

13 analysis and lacks a rational basis.

14

30. On August 25, 2017, President Trump delivered an official executive

15 directive to the Departments of Defense and Homeland Security concerning

16 “Military Service by Transgender Individuals” (August 25 Directive). The August

17 25 Directive formalized the new policy by directing the Secretaries of Defense and

18 Homeland Security to: (1) implement a plan to return to the military’s pre-2016

19 policy of prohibiting military service for transgender individuals; (2) ban the

20 “accession of transgender individuals into military service”; and (3) “halt all use of

21 DOD or DHS resources to fund sex reassignment surgical procedures for military

22 personnel” except in limited circumstances. The August 25 Directive unlawfully

23 bans transgender persons from enlisting or serving openly in the military and

24 prohibits the military from paying for certain forms of healthcare related to gender

25 transition.

26

31. Like the July 26 Twitter announcement, the August 25 Directive was

27 rendered without any significant study or analysis and lacks a rational basis.

28

7

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1

32. According to the August 25 Directive, President Trump relied on his

2 own judgment to reverse the military’s multi-year strategic research and planning

3 regarding implementation policies that would allow openly transgender individuals

4 to serve in the military. August 25 Directive, § 1(a). President Trump justified the

5 actions by stating:

6 7 8 9 10 11 12 Id.

In my judgment, the previous Administration failed to identify a sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year’s policy change would not have those negative effects.

13

33. On February 22, 2018, then-Secretary of Defense Mattis submitted to

14 President Trump a plan for implementing the August 25 Directive, as ordered by

15 President Trump (the Implementation Plan) (together with the August 25 Directive,

16 the Transgender Military Service Ban). The Implementation Plan consisted of two

17 documents: 1) one document entitled “Military Service by Transgender

18 Individuals;” and 2) one document entitled “Department of Defense Report and

19 Recommendations on Military Service by Transgender Persons.”

20

34. On March 23, 2018, President Trump issued a Memorandum entitled,

21 “Military Service by Transgender Individuals,” in which he formally accepted the

22 Implementation Plan submitted to him by then-Secretary Mattis on February 22,

23 2018. The Memorandum specifically states that the Implementation Plan was

24 developed pursuant to the President’s August 25 Directive, and authorized the

25 Secretary of Defense to carry out the Implementation Plan.

26

35. The Implementation Plan, implementing the Transgender Military

27 Service Ban, went into effect on April 12, 2019. The Transgender Military Service

28

8

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1 Ban effectively prohibits all future military service by transgender individuals

2 (including from those currently serving without a waiver) unless they are willing to

3 serve in the gender they were assigned at birth. The policy also bans accessions by

4 transgender individuals into any branch of the United States military.

5

36. The bases offered in support of the Transgender Military Service Ban

6 are pretextual, arbitrary, capricious, and unsupported by facts, evidence, or analysis.

7 They are, furthermore, contrary to the previous conclusions of the Department of

8 Defense following exhaustive research and fact-based analysis.

9

37. In fact, separating and replacing currently serving transgender service

10 members would be costly, cause disruption, and undermine unit cohesion, respect

11 for military authority, and morale.

12

38. Furthermore, the Transgender Military Service Ban denies transgender

13 individuals and service members equal protection of the laws in violation of the

14 Fifth Amendment and violates their rights to free speech and association in

15 violation of the First Amendment, because it is based on their gender identity or

16 gender expression, and restricts their speech.

17

FIRST CLAIM FOR RELIEF

18

Fifth Amendment – Equal Protection

19

(Against all Defendants)

20

39. California re-alleges and incorporates by reference the allegations set

21 forth in each of the preceding paragraphs of this First Amended Complaint-in-

22 Intervention.

23

40. The Due Process Clause of the Fifth Amendment prohibits the federal

24 government from denying persons the equal protection of the laws.

25

41. The terms of the Transgender Military Service Ban discriminate

26 against transgender individuals, including citizens of the State of California,

27 members of the California National Guard, and participants in ROTC programs at

28

9

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1 California’s public universities, based on their sex and transgender status, in

2 violation of the equal protection guarantee of the Fifth Amendment.

3

42. The terms of the Transgender Military Service Ban lack rational bases,

4 are arbitrary, and cannot be justified by any government interest.

5

43. Defendants’ violations cause ongoing, irreparable harm to the State of

6 California and its residents.

7

44. California and its residents have no adequate remedy at law.

8

SECOND CLAIM FOR RELIEF

9

Fifth Amendment – Due Process

10

(Against all Defendants)

11

45. California re-alleges and incorporates by reference the allegations set

12 forth in each of the preceding paragraphs of this First Amended Complaint-in-

13 Intervention.

14

46. The Due Process Clause of the Fifth Amendment prohibits the federal

15 government from depriving individuals of their liberty, property, or other interests

16 without due process of law.

17

47. The terms of the Transgender Military Service Ban impermissibly

18 burden the fundamental interests of transgender individuals, including citizens of

19 the State of California, members of the California National Guard, and participants

20 in ROTC programs at California’s public universities, in violation of the due-

21 process protections of the Fifth Amendment.

22

48. The terms of the Transgender Military Service Ban lack rational bases,

23 are arbitrary, and cannot be justified by any government interest.

24

49. Defendants’ violations cause ongoing, irreparable harm to the State of

25 California and its residents.

26

50. California and its residents have no adequate remedy at law.

27

28

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1

THIRD CLAIM FOR RELIEF

2

Fifth Amendment – Right to Privacy

3

(Against All Defendants)

4

51. California re-alleges and incorporates by reference the allegations set

5 forth in each of the preceding paragraphs of this First Amended Complaint-in-

6 Intervention.

7

52. The Due Process Clause of the Fifth Amendment grants individuals

8 constitutional liberties and a fundamental right to privacy that encompasses and

9 protects transgender individuals’ rights to self-identification and self-determination

10 to live, form intimate relationships, work, and pursue happiness and meaning as the

11 gender, or non-gender, with which they identify.

12

53. The terms of the Transgender Military Service Ban impermissibly

13 burden the fundamental interests of transgender individuals, including citizens of

14 the State of California, members of the California National Guard, and participants

15 in ROTC programs at California’s public universities, to live consistently with their

16 gender identity and unlawfully infringe on their privacy by penalizing and

17 stigmatizing them for expressing a fundamental aspect of their personal identity.

18

54. The terms of the Transgender Military Service Ban lack rational bases,

19 are arbitrary, and cannot be justified by any government interest.

20

55. Defendants’ violations cause ongoing, irreparable harm to the State of

21 California and its residents.

22

56. California and its residents have no adequate remedy at law.

23

FOURTH CLAIM FOR RELIEF

24

First Amendment – Free Speech and Expression

25

(Against all Defendants)

26

57. California re-alleges and incorporates by reference the allegations set

27 forth in each of the preceding paragraphs of this First Amended Complaint-in-

28 Intervention.

11

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1

58. The First Amendment grants individuals the constitutional right to

2 freedom of speech and expression.

3

59. The terms of the Transgender Military Service Ban violate the right of

4 free speech and expression of transgender individuals, including citizens of the

5 State of California, members of the California National Guard, and participants in

6 ROTC programs at California’s public universities, by impermissibly restricting,

7 punishing, and chilling all public and private speech that would tend to identify

8 them as transgender individuals.

9

60. The terms of the Transgender Military Service Ban lack rational bases,

10 are arbitrary, and cannot be justified by any government interest.

11

61. Defendants’ violations cause ongoing, irreparable harm to the State of

12 California and its residents.

13

62. California and its residents have no adequate remedy at law.

14

PRAYER FOR RELIEF

15

WHEREFORE, Plaintiff-Intervenor State of California respectfully requests

16 that this Court enter judgment in its favor and grant the following relief:

17

1. That this Court find and declare that Defendants’ Transgender Military

18 Service Ban to exclude transgender people from federal military service, ban the

19 accession of transgender people into the military, and prohibit the funding of sex

20 reassignment surgical procedures as part of health care for transgender service

21 members is unconstitutional;

22

2. That Defendants, and their officers, agents, servants, employees, and

23 attorneys, and those persons in active concert or participation with them, be

24 preliminarily and permanently enjoined from enforcing the Transgender Military

25 Service Ban to exclude transgender service members from serving or enlisting in

26 the military or to preclude transgender service members from access to full medical

27 care, including gender reassignment treatment;

28 ///

12

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1

3. For such other relief as the Court may deem just and proper.

2 Dated: October 11, 2019
3 4 5 6 7

Respectfully submitted, XAVIER BECERRA Attorney General of California MARK R. BECKINGTON Supervising Deputy Attorney General AMIE L. MEDLEY Deputy Attorney General

8

/s/ Lara Haddad___

9

LARA HADDAD

Deputy Attorney General

10

Attorneys for the State of California

11

12

13

14

15

16

17

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19

20

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25

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28

13

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CERTIFICATE OF SERVICE

Case Name: Stockman, Aiden, et al. v. Donald J. Trump, et al.

No. 5:17-CV-01799-JGB-KKx

I hereby certify that on October 11, 2019, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system:
PLAINTIFF-INTERVENOR STATE OF CALIFORNIA’S FIRST AMENDED COMPLAINT
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on October 11, 2019, at Los Angeles, California.

Beth L. Gratz Declarant
53812371.docx

/s/ Beth L. Gratz Signature