Transgender Servicemembers

Summary: D.C. District Court Rejects Government Motion for a Stay in Transgender Servicemember Litigation

By Matthew Kahn
Thursday, December 21, 2017, 8:13 AM

On Dec. 11, Judge Colleen Kollar-Kotelly of the U.S. District Court of the District of Columbia denied a government motion in Doe v. Trump that requested a partial stay of an Oct. 30 injunction that required the government to allow transgender servicepeople to enlist in the military starting Jan. 1 pending appeal (“the accession policy”).

Kollar-Kotelly began by citing the four factors that the D.C. Circuit uses to decide on motions to stay an injunction pending appeal:

  1. “[T]he moving party’s likelihood of success on the merits of its appeal,”
  2. “[W]hether the moving party will suffer irreparable injury,”
  3. “[W]hether the issuance of the stay would substantially harm the other parties in the proceeding,” and
  4. “[T]he public interest.”

Kollar-Kotelly decided that none of the factors supports a stay, explaining her rationale on each factor (albeit not in the order she notes above).

  1. Irreparable injury

The court spent the majority of the order addressing whether the moving party will suffer irreparable injury in the absence of a stay. To advance its case, the government cited a declaration by the acting deputy assistant secretary of military personnel policy, Lernes Herbert, who wrote that due to “extraordinary burdens” associated with implementing the accession policy under the court’s previous order, including “preparation, training, and communication,” the Pentagon “would not be adequately and properly prepared to begin processing transgender applicants for military service by January 1, 2018.”

Kollar-Kotelly was not convinced by the Herbert declaration, saying that although it listed administrative challenges to implementing the accession policy, Herbert’s claim overlooked the fact that the Pentagon had considerable time to prepare for meeting them—noting that Defense Secretary Ash Carter’s original directive was issued June 30, 2016. For over a year-and-a-half, with only a brief hiatus between the president’s proclamation and the D.C. district court’s injunction, the military should have anticipated and prepared for the accession policy. The plaintiffs also submitted an opposition brief citing Edwin Mabus, the former secretary of the Navy, saying that nearly a year ago, the military had already completed nearly all of the procedures needed to implement the accession policy. At the time that the court issued the injunction, the record showed that Peter Levine, the acting undersecretary of defense for personnel and readiness, had circulated guidelines on the day-to-day implementation of the accession policy for service members and commanders. The order cites other examples of completed readiness steps. Kollar-Kotelly says that “[i]nstead of acknowledging what has already been done, []Herbert’s declaration uses sweeping and conclusory statements to support his assertion that there is an unmanageable amount of work left to do.”

  1. Likelihood of Success on the Merits

Kollar-Kotelly cited her previous ruling that the plaintiff is unlikely to succeed on the merits, noting that the record before the court has not changed. Sarah Grant summarized the court’s reasoning in the original injunction order:

The judge arrives at that finding by first determining that the court should apply intermediate scrutiny, as transgender individuals appear to satisfy the criteria of at least a quasi-suspect classification and intermediate scrutiny is the standard to which forms of discrimination on the basis of gender are subject. Next, she applies intermediate scrutiny to the accession and retention directives and concludes that they likely do not succeed for a variety of reasons:

  1. “[T]he reasons given for the decision to exclude transgender service members appear to be hypothetical and extremely overbroad.”
  2. “The breadth of the Accession and Retention Directives is also discontinuous with the purported concern about costs…”
  3. “Defendants provide practically no explanation at all, let alone support, for their suggestion that the presence of transgender individuals may be harmful to ‘unit cohesion.’”
  4. “[A]ll of the reasons proffered by the President for excluding transgender individuals from the military in this case were not merely unsupported, but were actually contradicted by the studies, conclusions and judgment of the military itself.” (emphasis in original)
  5. “[T]he [prior] Secretary of Defense concluded that the needs of the military were best served by allowing transgender individuals to openly serve.”
  6. The abrupt announcement via Twitter and other surrounding “circumstances provide additional support for the Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficiency.”

Together, these factors “are highly suggestive of a constitutional violation.”

The court added that it did not find reason to believe that the scope of the preliminary injunction was improperly broad, citing Whole Woman’s Health v. Hellerstedt and Harmon v. Thornburgh as precedent in the Supreme Court and D.C. Circuit, respectively.

  1. Harm to Plaintiffs

Kollar-Kotelly found the government’s argument that “Plaintiffs will not be harmed by a stay” to be “cursory” and “unpersuasive.” It reiterated its previous finding that plaintiffs suffered injury each day that the president’s directive remains in force by assigning stigma and threatening their rights under the Fifth Amendment. The court also cited injury specific to particular plaintiffs in the case.

  1. Public Interest

Noting that the government’s argument on this factor is limited to one sentence of the brief and that it “effectively restates their argument regarding irreparable injury,” Kollar-Kotelly was not persuaded to stay the injunction based on public interest claims. She reasoned that the record before the court was unchanged and reiterated the position in the Oct. 30 order saying that there is no reason to believe that the accession policy would have a negative effect on the military.


Kollar-Kotelly denied the government’s motion. Barring further action, the June 30, 2016 directive will take effect on Jan. 1 of next year. Lawfare will continue to cover developments in the case.