On Nov. 20, Judge Marvin Garbis of the U.S. District Court for the District of Maryland issued a memorandum opinion and preliminary injunction against the government in Stone, et al., v. Trump, et al., one of four active lawsuits across the country seeking to prevent implementation of a presidential memorandum banning transgender individuals from military service. The presidential memorandum extended a prohibition against transgender individuals entering the military (the accession directive), required the military to authorize, no later than Mar. 23, 2018, the discharge of transgender service members (the retention directive), and halted government funding for sex reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of the individual (the sex reassignment surgery directive).

Garbis’ opinion tracks closely with, and extensively cites, D.C. District Court Judge Colleen Kollar-Kotelly’s order last month in Jane Doe 1, et al., v. Donald J. Trump, et al., granting a preliminary injunction against the accession and retention directives on the grounds that they likely violate plaintiffs’ Fifth Amendment equal protection and due process rights. The primary difference is that Garbis’ preliminary injunction also covers the sex reassignment surgery directive, whereas Kollar-Kotelly dismissed that claim for lack of standing among the Jane Doe 1 plaintiffs.

Plaintiffs

Brock Stone has served in the Navy for 11 years and intends to remain in the service for at least 20 years, the threshold to qualify for retirement benefits. He has already undergone hormone therapy as part of his gender transition, and his treatment plan, which includes reassignment surgeries, is currently pending final approval by Navy Medical. Kate Cole has served in the Army for almost 10 years. She has undergone hormone therapy and was scheduled to receive medically-necessary surgery related to her gender transition in or around September 2017, but the surgery was denied Sept. 8. The cancellation was later remedied, but under the current guidance she will be unable to receive the additional surgeries called for in her treatment plan. John Doe has served for six years in the Air Force and began his gender transition in 2014, including undergoing certain surgeries for which he paid out-of-pocket. He has undergone hormone therapy and planned to receive an additional medically-necessary surgery in August 2017, but the medical command put the surgery on hold pursuant to the presidential memorandum. Seven Ero George enlisted in the Air National Guard in 2015 and is pursuing an officer commission in the Army, but has been unable to accede because the Defense Enrollment Eligibility Report System still lists him as female. He has undergone hormone therapy and a medically-necessary surgery, and no further surgeries are required under his medical treatment plan. Teagan Gilbert has served in the Navy for 13 years and is in the process of reenlisting for another six-year term. She has undergone hormone therapy and has a medical appointment scheduled for January 2018 to update her treatment plan to include medically-indicated surgical treatment. Tommie Parker served in the Marine Corps for four years and in the Air National Guard for 26 years, more than half of those 30 years on active duty. She is eligible for retirement in three-and-a-half years and intends to reenlist in order to stay through retirement. Parker is currently paying out-of-pocket for hormone therapy while waiting for her transition plan to be fully approved, and does not intend to have any transition-related surgeries.

Claims

The plaintiffs assert three causes of action, the first of which is shared with Jane Doe 1 and provided the basis for the preliminary injunction in that case: Count 1 is a claim that there has been a violation of the equal protection component of the Fifth Amendment’s due process clause; Count 2 is a claim of the violation of substantive due process; and Count 3 is a claim of the violation of 10 U.S.C. § 1074.

Discussion

The defendants filed a motion to dismiss, seeking dismissal of the plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(1) for lack of standing and under Rule 12(b)(6) for failure to state a claim, and denial of the request for a preliminary injunction.

Judge Garbis first determined the plaintiffs’ standing, evaluating whether they plausibly established in the complaint one or more injuries-in-fact that resulted from the policy changes and would be remedied by a preliminary injunction blocking implementation of the presidential memorandum. Causation and redressability were undisputed, Garbis said, and the plaintiffs met their burden to establish an injury-in-fact related to each of the accession, retention, and sex reassignment surgery directives. Garbis agreed with Kollar-Kotelly’s determination that “there is a substantial likelihood that transgender individuals will be indefinitely prevented from acceding to the military as of January 1, 2018, and that the military shall authorize the discharge of current service members who are transgender as of March 23, 2018.”

He found that the retention directive “effectively constitutes a revocation of rights that transgender people had been given ... [and that] [t]his revocation of equal protection is an injury.” Second, he decided that the plaintiffs have standing to challenge the accession directive because plaintiff George is eligible for a commission but is nevertheless “subject to a substantial risk that his attempt to accede into the military as a commissioned officer will be prohibited solely on the basis of his transgender status.” Third, Garbis determined that the plaintiffs may challenge the sex reassignment surgery directive on the grounds that “Plaintiff Cole has a final, approved medical plan that calls for two additional surgeries,” and “Plaintiff Stone has a near-final treatment plan that calls for two surgeries, needing only a final stamp of approval, which is not in doubt.” Finally, he found that the claims are ripe for review because the “President ordered an implementation plan and set definite implementation dates ... [and the] only uncertainties are how, not if, the policy will be implemented[.]” As a result, the plaintiffs face immediate and significant hardships, and “[w]aiting 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.”

Garbis next turned to the request for a preliminary injunction, finding that the plaintiffs met all required criteria by showing that 1) they will likely succeed at the merits stage; 2) they were likely to suffer irreparable harm absent preliminary relief; 3) the balance of equities tips in their favor; and 4) an injunction is in the public interest.

The plaintiffs are likely to succeed on the merits of their equal protection claim because “[t]he lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest.” Furthermore, because “irreparable harm is inseparably linked to the likelihood of success on the merits[,]” the previous determination counsels in favor of finding a preliminary injunction is necessary to prevent equal protection violations. Last, Garbis echoed Kollar-Kotelly’s opinion that “that Plaintiffs have shown that the public interest and the balance of hardships weigh in favor of granting injunctive relief.”

Moving on, Garbis briefly addressed the defense’s motion to dismiss under FRCP Rule 12(b)(6) for failure to state a claim. Referring back to the standing analysis, he found that the plaintiffs’ equal protection violation allegations “are adequate and present plausible claims.” He similarly found that the plaintiffs stated a plausible claim of a substantive due process violation, which arises “when the official action is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” In this case, Garbis wrote:

An unexpected announcement by the President and Commander in Chief of the United States via Twitter that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military” certainly can be considered shocking under the circumstances ... A capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes.

He did, however, dismiss without prejudice the plaintiff’s statutory claim that the Department of Defense’s actions in implementing the ban violated 10 U.S.C. § 1074(a)(1), which entitles members of the United States armed services to receive medical care in military treatment facilities. He found the plaintiffs’ current allegations conclusory, but suggested that they could perhaps amend the complaint to “assert an adequate and plausible statutory claim.”

Conclusion

Garbis granted the plaintiffs’ motion for a preliminary injunction to block enforcement of the accession, retention, and sex reassignment surgery directives, and accordingly denied the defendants’ motion to dismiss the equal protection and substantive due process claims. He dismissed the plaintiffs’ statutory claim without prejudice. In closing, he directed the plaintiffs to arrange a conference for Dec. 15, to discuss the scheduling of further proceedings.