Jane Doe 2 v. Patrick Shanahan

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 10, 2018 Decided March 8, 2019*

No. 18-5257

JANE DOE 2, ET AL.,

APPELLEES

v.

PATRICK M. SHANAHAN, IN HIS OFFICIAL CAPACITY AS ACTING

SECRETARY OF DEFENSE, ET AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-01597)

Brinton Lucas, Counsel to the Assistant Attorney General,

U.S. Department of Justice, argued the cause for appellants.

With him on the briefs were Hashim M. Mooppan, Deputy

Assistant Attorney General, Marleigh D. Dover, and Tara S.

Morrissey, Attorneys.

Jennifer Levi argued the cause for appellees. With her on

the brief were Paul R.Q. Wolfson, John T. Byrnes, Kevin M.

Lamb, Alan E. Schoenfeld, Shannon P. Minter, and

Christopher Stoll.

*

The Panel issued a judgment on January 4, 2019 (2019 WL

102309). Judges Wilkins and Williams now file separate opinions.

2

Maura Healey, Attorney General, Office of the Attorney

General for the Commonwealth of Massachusetts, Robert E.

Toone, Assistant Attorney General, Janet T. Mills, Attorney

General at the time the brief was filed, Office of the Attorney

General for the State of Maine, Brian E. Frosh, Attorney

General for the State of Maryland, Lori Swanson, Attorney

General at the time the brief was filed, Office of the Attorney

General for the State of Minnesota, Gurbir S. Grewal, Attorney

General, Office of the Attorney General for the State of New

Jersey, Hector Balderas, Attorney General, Office of the

Attorney General for the State of New Mexico, Barbara

Underwood, Attorney General at the time the brief was filed,

Office of the Attorney General for the State of New York,

Joshua H. Stein, Attorney General, Office of the Attorney

General for the State of North Carolina, Xavier Becerra,

Attorney General, Office of the Attorney General for the State

of California, George Jepsen, Attorney General at the time the

brief was filed, Office of the Attorney General for the State of

Connecticut, Matthew P. Denn, Attorney General at the time

the brief was filed, Office of the Attorney General for the State

of Delaware, Karl A. Racine, Attorney General, Office of the

Attorney General for the District of Columbia, Russell A.

Suzuki, Attorney General at the time the brief was filed, Office

of the Attorney General for the State of Hawaii, Lisa Madigan,

Attorney General at the time the brief was filed, Office of the

Attorney General for the State of Illinois, Tom Miller, Attorney

General, Office of the Attorney General for the State of Iowa,

Peter F. Kilmartin, Attorney General at the time the brief was

filed, Office of the Attorney General for the State of Rhode

Island, Thomas J. Donovan, Jr., Attorney General, Office of

the Attorney General for the State of Vermont, Mark R.

Herring, Attorney General, Office of the Attorney General for

the Commonwealth of Virginia, Ellen F. Rosenblum, Attorney

General, Office of the Attorney General for the State of

Oregon, and Josh Shapiro, Attorney General, Office of the

3

Attorney General for the Commonwealth of Pennsylvania,

were on the brief for amici curiae The States of Massachusetts,

et al. in support of appellees and affirmance of the District

Court decision.

Peter C. Renn, Diana K. Flynn, and Tara L. Borelli were

on the brief for amici curiae National Center for Transgender

Equality and Other Advocacy Organizations in support of

plaintiffs-appellees and affirmance.

Andrew J. Ehrlich, George W. Kroup, Eric A. Felleman,

and Craig A. Benson were on the brief for amici curiae

American Veterans Alliance, et al. in support of plaintiffs-

appellees and in support of affirmance.

Eamon P. Joyce, John T. Hebden, Christopher A.

Eiswerth, and Robert S. Chang were on the brief for amici

curiae Asian American Legal Defense and Education Fund, et

al. in support of plaintiffs-appellees.

Cynthia Cook Robertson and Suzanne B. Goldberg were

on the brief for amici curiae The National Organization for

Women Foundation, et al. in support of plaintiffs-appellees.

Douglas H. Hallward-Driemeier, Irina Finkel, and

Douglas E. Brayley were on the brief for amici curiae The

Organization of Historians and 47 Historians of the Military,

National Security, and Foreign Relations supporting plaintiffs-

appellees.

Elizabeth B. Wydra and Ashwin P. Phatak were on the

brief for amicus curiae Constitutional Accountability Center in

support of plaintiffs-appellees.

4

Steven G. Thompson Reed was on the brief for amici

curiae The Service Women=s Action Network and Other

Veterans Service Organizations and Veterans Advocacy

Groups in support of affirmance.

Harold Hongju Koh and Phillip Spector were on the brief

for amici curiae Retired Military Offices and Former National

Security Officials in support of plaintiffs-appellees.

Daniel S. Harawa, Sherrilyn A. Ifill, and Janai S. Nelson

were on the brief for amicus curiae NAACP Legal Defense &

Educational Fund, Inc. in support of appellees and affirmance.

Devi M. Rao was on the brief for amici curiae American

Medical Association and Seven Other HealthCare

Organizations in support of plaintiffs-appellees and

affirmance.

Stuart F. Delery was on the brief for amicus curiae The

Trevor Project in support of plaintiffs-appellees and

affirmance.

Susan Baker Manning and Stephanie Schuster were on the

brief for amici curiae Vice Admiral Donald C. Arthur, USN

(Ret.) et al. in support of plaintiffs-appellees and affirmance of

the District Court decision.

Before: GRIFFITH and WILKINS, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Concurring opinion filed by Circuit Judge WILKINS.

Opinion concurring in the result filed by Senior Circuit

Judge WILLIAMS.

WILKINS, Circuit Judge, concurring:

“[T]he passage of time frequently brings about changed

circumstances – changes in the nature of the underlying

problem, changes in governing law or its interpretation by the

courts, and new policy insights – that warrant reexamination of

the original judgment.” Horne v. Flores, 557 U.S. 443, 448

(2009). As we described in the Judgment, the District Court’s

finding of no changed circumstances and its denial of the

motion to dissolve the preliminary injunction was error. I write

separately to elaborate on why I believe that was the case.

First, we must review some history and background.

I.

At issue in this case is the regulation of military service by

transgender persons. As noted in the report of the Transgender

Military Service Commission chaired by former Surgeon

General Jocelyn Elders, a prevalent theme in this area is that

“regulatory terminology that references transgender identity is

inconsistent.” J.A. 753. Thus, to avoid confusion, it is

critically important to define terms and characterize military

regulations carefully and precisely.

Based on the record, transgender persons are “individuals

who identify with a gender different from the sex they were

assigned at birth.” J.A. 606; see also J.A. 263. Thus, while a

transgender woman may have been assigned the male sex at

birth, she nonetheless identifies with the female gender.

Similarly, a transgender man was assigned the female sex at

birth but identifies with the male gender.

As explained by amici American Medical Association and

seven other healthcare organizations, “[e]very person has a

gender identity, which cannot be altered voluntarily or

necessarily ascertained immediately after birth.” AMA

2

Amicus Br. 6. A person “communicates gender identity to

others through behavior, clothing, hairstyles, voice, or body

characteristics,” id., and the extent to which transgender

individuals express their gender identity varies from person to

person. As found by the RAND Corporation in a report for

Former Secretary of Defense Ash Carter, some transgender

persons express their gender identity though “transitioning,”

which is “the act of living and working as a gender different

from that assigned at birth.” J.A. 606 (emphasis added). But

according to the information that we have in the record, only

“[a] subset of transgender individuals may choose to transition

. . .” J.A. 606. As explained in the Transgender Military

Service Commission report:

Being transgender does not mean that one has

already transitioned to a different gender, or that

such a transition will occur in the future. It

means recognizing that the gender one has

always had does not match the physical gender

that was assigned at birth. The transgender

community includes people who have already

transitioned to the other gender, those who have

not yet transitioned but who plan to do so, those

who identify with the other gender but do not

wish to transition, and others.

J.A. 752.

Some, but not all, transgender persons develop gender

dysphoria, which manifests as stress and anxiety caused by the

incongruence between the sex assigned to the person at birth

and the person’s preferred gender identity. J.A. 622-23.

Gender dysphoria is recognized by the Diagnostic and

Statistical Manual of Mental Disorders (DSM-5), and is often

treated with “psychotherapy, hormone therapy, surgery, and

3

changes to gender expression and role (i.e., how people present

themselves to the world . . .).” J.A. 623. Thus, many

transgender persons with gender dysphoria require medical

treatment, including transitioning to their preferred gender;

however, “[n]ot all [transgender persons diagnosed with gender

dysphoria] will prefer or need all or any of those options.” Id.

Prior to 2015, the Department of Defense (DoD)

effectively banned all transgender persons from either joining

or remaining in the military. J.A. 275; J.A. 734; J.A. 784.

These accession and retention restrictions were enforced

through medical standards that precluded applicants from

joining the military if they had “defects of the genitalia”

including but not limited to change of sex, and through mental

health standards that disqualified persons with any history of

certain psychosexual conditions, including “transsexualism”

and “transvestism.” J.A. 754. Thus, all transgender persons

were essentially banned from military service, even if they had

never undergone sex-reassignment surgery, even if they did not

have gender dysphoria, and even if they had not transitioned to

their preferred gender and were willing to serve pursuant to the

military standards applicable to the sex assigned to them at

birth.

Under the pre-2015 regime, the only thing that mattered to

exclude a person from military service was the person’s

transgender status: that the person did not identify with the

gender assigned to them at birth.

Things began to change in 2015. On July 28, 2015, then-

Secretary of Defense Ash Carter issued a memorandum to the

secretaries of the military departments directing that

“[e]ffective as of July 13, 2015, no Service member shall be

involuntarily separated or denied reenlistment or continuation

of active or reserve service on the basis of their gender identity,

4

without the personal approval of the Under Secretary of

Defense for Personnel and Readiness.” J.A. 709. The

memorandum further ordered a working group composed of

senior representatives from each of the Military Departments,

Joint Staff, and relevant components from the Office of the

Secretary of Defense to formulate policy options for the DoD

regarding the military service of transgender servicemembers.

The working group commissioned the RAND Corporation’s

National Defense Research Institute to conduct a study on the

impact of permitting transgender servicemembers to serve

openly.

The RAND Corporation subsequently issued the

aforementioned 91-page report (“RAND Report”) that found

no evidence that allowing transgender individuals to serve

would have any effect on “unit cohesion,” and concluded that

any related costs or impacts on readiness would be

“exceedingly small,” “marginal,” or “negligible.” J.A. 597-

708. Based on all of the information it collected, the working

group unanimously concluded that transgender people should

be allowed to serve openly in the military. The group not only

concluded that allowing transgender people to serve would not

significantly affect military readiness or costs but also found

that prohibiting transgender people from serving would

undermine military effectiveness and readiness. Specifically,

prohibiting transgender people from serving would exclude

qualified individuals on a basis that has no relevance to one’s

fitness to serve and create unexpected vacancies requiring

expensive and time-consuming recruitment and training of

replacements.

On June 30, 2016, Secretary Carter issued Directive-Type

Memorandum 16-005 (“Carter Policy”), which announced

“that service in the United States military should be open to all

who can meet the rigorous standards for military service and

5

readiness,” and set forth a policy permitting service by

qualified transgender individuals. J.A. 586. The Carter Policy

took immediate effect with respect to retention, allowing

current transgender servicemembers to serve under “the same

standards” as cisgender (non-transgender) servicemembers and

prohibiting the discharge of otherwise qualified

servicemembers “solely on the basis of their gender identity.”

J.A. 588. The Carter Policy also allowed transgender

servicemembers diagnosed with gender dysphoria to transition

to their preferred gender if they so desired. J.A. 275. Upon

joining the military, each servicemember is assigned a “gender

marker” in the Defense Enrollment Eligibility Reporting

System (DEERS), and the servicemember must follow all sex-

based military regulations pertinent to that gender marker. J.A.

1045. Thus, under the Carter Policy, transgender servicemembers

with a gender dysphoria diagnosis became eligible to change

their gender marker in DEERS, and with this transition, begin

following the sex-based military regulations for their preferred

gender rather than for their biological sex. The sex-based

standards and procedures that vary by gender include

(1) uniform, grooming, physical fitness, body fat, and drug

testing standards; (2) requirements for separate berthing,

bathroom and shower facilities; and (3) different policies

regulating military training and sports, such as boxing. J.A.

296-98; J.A. 1045.

The Carter Policy directed DoD to update its standards for

persons entering the military (a process formally referred to as

“accession”) by July 1, 2017. Secretary of Defense James

Mattis subsequently deferred the July 1, 2017 accession

deadline to January 1, 2018 so that the services could review

their accession plans and provide input on the impact to the

readiness and lethality of the armed forces. J.A. 426.

6

On July 26, 2017, President Donald J. Trump issued a

statement via Twitter announcing that “the United States

Government will not accept or allow transgender individuals to

serve in any capacity in the U.S. Military.” J.A. 124. A formal

Presidential Memorandum (“2017 Presidential

Memorandum”) followed on August 25, 2017. J.A. 406-07.

The 2017 Presidential Memorandum reversed the Carter

Policy. President Trump explained that “[s]hortly before

President Obama left office, . . . his Administration dismantled

the Departments’ established framework by permitting

transgender individuals to serve openly in the military,

authorizing the use of the Departments’ resources to fund sex-

reassignment surgical procedures, and permitting accession of

such individuals after July 1, 2017 [later extended to January

1, 2018].” J.A. 406. President Trump further declared:

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.

J.A. 406. Thus, President Trump directed Secretary Mattis “to

return to the longstanding policy and practice on military

service by transgender individuals that was in place prior to

June 2016 until such time as a sufficient basis exists upon

which to conclude that terminating that policy and practice

would not have the negative effects discussed above.” J.A.

406. President Trump ordered Secretary Mattis to submit a

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plan for implementing the policy directives of the 2017

Presidential Memorandum by February 2018. J.A. 406-07.

By ordering a return to pre-Carter policies, President

Trump effectively reinstated the prior blanket ban on accession

and retention in military service by all transgender persons.

The President specified that the ban on transgender

accession would go into effect immediately and remain in place

“until such time as the Secretary of Defense, after consulting

with the Secretary of Homeland Security, provides a

recommendation to the contrary that I find convincing.” J.A.

406. The President also ordered an immediate stop to the “use

of DoD or DHS resources to fund sex-reassignment surgical

procedures for military personnel, except to the extent

necessary to protect the health of an individual who has already

begun a course of treatment to reassign his or her sex.” J.A.

406. Other than the halt to sex-reassignment funding, the

President did not make the transgender ban immediately

effective with respect to retention standards, which would have

led to the immediate discharge of transgender servicemembers.

Instead, President Trump instructed Secretary Mattis to

“determine how to address transgender individuals currently

serving in the United States military” and ordered that “no

action may be taken against such individuals” until that study

was complete. J.A. 407.

On October 30, 2017, the District Court issued a

preliminary injunction enjoining the implementation of the

2017 Presidential Memorandum, the effect of which was to

reinstate the Carter Policy. As the District Court found, and as

we agreed in denying a motion to stay the preliminary

injunction, a number of factors “strongly suggest[ed]” that

Plaintiffs were likely to succeed on their Fifth Amendment due

process claim. Doe 1 v. Trump, 2017 WL 6553389, at *1 (D.C.

8

Cir. Dec. 22, 2017). Those factors included the breadth of the

exclusion (virtually a complete ban) ordered by the

Memorandum, the unusual and abrupt initial announcement of

the ban, the failure to provide any supporting facts for the ban,

and the recent professional judgment by the military, after a

thorough study, that the prior ban should be lifted. Id. Given

that intemperate contemporaneous statements by

policymakers, departures from normal procedures, and

adoption of policies unsupported or contrary to data can be

considered evidence that invidious discrimination was “a

motivating factor” in the decision, Village of Arlington Heights

v. Metro. Hou. Dev. Corp., 429 U.S. 252, 266-68 (1977), the

course of events leading up to the 2017 Presidential

Memorandum had more than a whiff of the stench of

arbitrariness and of a “bare . . . desire to harm a politically

unpopular group.” U.S. Dept. of Agric. v. Moreno, 413 U.S.

528, 534 (1973).

II.

But that is not the end of the story. In February 2018, as

ordered by the 2017 Presidential Memorandum, Secretary

Mattis presented a memorandum to the President that proposed

a policy regarding transgender military service (“the Mattis

Plan”). J.A. 263-65. The reasoning underlying the Mattis Plan

is spelled out in a 44-page report prepared by a panel of senior

military and civilian experts that was also submitted to the

President in February 2018 (“the Panel Report”). J.A. 268-312.

The Panel Report concludes that transgender persons with

gender dysphoria or who have undergone or will require gender

transition undermine the military. According to the Panel

Report, these servicemembers are fundamentally incompatible

with the military’s mental health standards, physical health

standards, and sex-based standards and are a detriment to

military readiness and unit cohesion. The Panel Report likens

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gender dysphoria to conditions such as “bipolar disorder,

personality disorder, obsessive-compulsive disorder, suicidal

behavior, and even body dysmorphic disorder.” J.A. 288. It

concludes that individuals with gender dysphoria are more

likely to have other mental health conditions and substance

abuse problems, and to commit suicide. J.A. 289. The Panel

Report also states that these individuals impose

“disproportionate costs” on the military, J.A. 309, and

repeatedly cites “uncertainty” in the medical field about these

individuals as a reason to urge that the military “proceed with

caution,” J.A. 274.

The Mattis Plan has three key planks. First “[t]ransgender

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.” J.A. 265.

“Biological sex” is not defined, but it appears to mean that the

DEERS gender marker for the servicemember is the same as

the sex assigned to the person at birth based on a physical

examination of the genital organs. J.A. 299. “Serving” in

one’s biological sex is also not defined, but it appears to mean

that the transgender servicemember must follow all sex-based

military regulations pertinent to the person’s DEERS gender

marker. J.A. 273-74. (These critical points should be fleshed

out in further proceedings.) The Mattis Plan’s panel of experts

says that this particular recommendation is consistent with the

Carter Policy, which also required transgender persons without

gender dysphoria to serve in their biological sex, J.A. 300, and

that there are transgender persons who “have served, and are

serving, with distinction under the standards for their biological

sex,” J.A. 274.

Second, transgender persons who require or have

undergone gender transition are disqualified from service, so

they may not join, and may not be retained in, the military. J.A.

10

273. (However, the Mattis Plan includes a grandfather clause,

which exempts current servicemembers who were diagnosed

with gender dysphoria and began their transition pursuant to

the Carter Policy and prior to the effective date of the Mattis

Plan. J.A. 264; J.A. 273-74; J.A. 311.)

Third, transgender persons are disqualified from accession

or retention in military service if they have “a history or

diagnosis of gender dysphoria and require, or have already

undertaken, a course of treatment to change their gender.” J.A.

264; see also J.A. 300. (As above, the grandfather clause in the

Mattis Plan exempts current servicemembers who were

diagnosed with gender dysphoria and began their transition

pursuant to the Carter Policy and prior to the effective date of

the Mattis Plan. J.A. 264; J.A. 273-74; J.A. 311.) Thus, unless

grandfathered, a transgender person with a history or current

diagnosis of gender dysphoria can remain in the military only

if the person is willing and able to serve in his or her biological

sex. Similarly, a transgender person with a current diagnosis

of gender dysphoria cannot join the military, and a transgender

person with a history of gender dysphoria can join only if the

person can “demonstrate 36 consecutive months of stability

(i.e. absence of gender dysphoria),” has not transitioned, and is

willing and able to serve in his or her biological sex. J.A. 273.

On March 23, 2018, the President issued a 2018

Presidential Memorandum, which stated that he “revoke[s]” his

2017 Presidential Memorandum, “and any other directive [he]

may have made with respect to military service by transgender

individuals.” J.A. 261. The President ordered that “[t]he

Secretary of Defense, and the Secretary of Homeland Security,

with respect to the U.S. Coast Guard, may exercise their

authority to implement any appropriate policies concerning

military service by transgender individuals.” J.A. 261. That

same day, the government moved to dissolve the October 2017

11

injunction so that the military could implement the Mattis Plan.

On August 6, 2018, the District Court found that the Mattis

Plan had not “genuinely changed” the circumstances in the

case, J.A. 94, and thus denied the motion to dissolve its

injunction, J.A. 64-98.

III.

As stated earlier, consistency and clarity in terminology

and definitions are important, and that was a key problem

below.

The District Court ruled that by definition, transgender

persons “do not identify or live in accord with their biological

sex.” J.A. 69; J.A. 91. Plaintiffs urged this definition upon the

District Court, just as they urge it upon us, by arguing that all

transgender persons undergo a gender transition, Appellee Br.

19. The problem is that there is no record support for this

definition of the term. As noted earlier, everything in the

record, from the Elders Report, the RAND Study, the Carter

Policy and the Mattis Plan consistently defines a transgender

person as a person who does not “identify” with his or her

biological sex. Indeed, Plaintiffs’ own expert witness, J.A.

1056, and the American Medical Association, amici in support

of Plaintiffs, AMA Amicus Br. 3, define transgender in terms

of identifying with, rather than identifying with and living in

accord with, one’s preferred gender.

This subtle shift in definition by Plaintiffs is significant,

because it provides the lynchpin for their argument that the

Mattis Plan was no different than the policy of the 2017

Presidential Memorandum. Plaintiffs, and the District Court,

swept aside all distinctions in the various elements of the Mattis

Plan by characterizing it as a monolith. Under this construct,

the Mattis Plan is a total ban on service by transgender persons

12

because a transgender person cannot “liv[e] in accord with their

gender identity” while serving in the military according to their

biological sex. Appellee Br. 21; see also J.A. 69; J.A. 91. In

this paradigm, the Mattis Plan is a blanket transgender ban

because it does not permit each and every transgender person

to serve in his or her preferred gender; unless grandfathered,

the Mattis Plan requires that transgender persons serve in

accord with their biological sex.

Plaintiffs acknowledge that the term transgender is often

defined to include persons who identify with another gender

but who do not wish to live or work in accordance with that

preferred gender, but they blithely dismiss that definition with

the argument that any “broader meaning [of transgender] is

irrelevant to this case.” Appellee Br. 23. How so? Plaintiffs

want us to ignore the fact that they did not present evidence

showing that all transgender persons necessarily “live” or

“work” in their preferred gender rather than their biological

sex. There were no findings below describing what it means to

“serve in one’s biological sex,” let alone findings that all

transgender persons either currently serving or applying to join

the military must suppress who they are to “serve in their

biological sex” and are unwilling or unable to do so. Instead,

Plaintiffs want us to adopt the position that transgender persons

who desire to serve in their biological sex are not really

transgender, at least for the purpose of this lawsuit. But we

cannot simply substitute Plaintiffs’ ipse dixit for evidence.

In sum, the record – at least at this point – shows that the

Mattis Plan does not exclude all transgender persons serving in

the military (unless grandfathered), as Plaintiffs maintain and

as the District Court found. Rather, the record supports the

conclusion that the Mattis Plan excludes (unless grandfathered)

transgender persons who desire to express their gender identity

by transitioning – changing their gender marker in DEERS –

13

and thereby serving in accordance with all of the military

requirements for their preferred gender. To the extent that

there are transgender servicemembers who desire to serve

under the standards for their biological sex, under the Mattis

Plan, they may identify as they wish with their preferred gender

while complying with the service requirements applicable to

the DEERS gender marker for their biological sex.

None of this is to say that the Mattis Plan is not a hardship

for transgender servicemembers who wish to transition. Nor is

this dispositive of whether the Mattis Plan targets only

transgender persons or is instead facially neutral. But it does

mean that the Mattis Plan does not target all transgender

persons, at least on this record, and it was therefore error to

conclude that the Mattis Plan was not a substantive change

from the 2017 Presidential Memorandum.

IV.

As we observed in the Judgment, the separation of powers

principles upon which our Constitution is based requires that

courts defer to the reasoned, professional analysis of Congress

and the Executive on matters strictly within the realm of

military expertise. This is so because the Constitution vests

authority over the armed forces with Congress and the

Executive, because military policies devised by the political

branches are accountable to the electorate while those imposed

by judges are not, and because, generally speaking, judges do

not have competence in matters of military personnel and

training. See generally Rostker v. Goldberg, 453 U.S. 57, 77-

79 (1981); Goldman v. Weinberger, 475 U.S. 503, 507-10

(1986).

But that does not mean that Congress and the Executive

have a wholesale license to discriminate in matters of military

14

policy. Over forty years ago, the Supreme Court struck down

a statute that required married female servicemembers to prove

the financial dependency of their husbands in order to receive

increased housing and healthcare benefits, while married male

servicemembers automatically received the increased benefits,

even if their wives were not financially dependent upon them.

Frontiero v. Richardson, 411 U.S. 677, 678-79 (1973). The

statute, justified as promoting “administrative convenience,”

was a classification based on sex and therefore subject to

heightened scrutiny, the same as any non-military, sex-based

statute or policy. Id. at 688-89. To satisfy heightened scrutiny,

the Court demanded “concrete evidence” that the law promoted

the claimed justification of administrative convenience, and

finding none, held that the statute violated due process

protections. Id. at 689-91.

There was no deference in Frontiero to the expertise or

judgment of the Congress that enacted the law or of the military

officials who administered it. The facially discriminatory

military decree in Frontiero was simply struck down.

Plaintiffs argue that transgender persons are a suspect class

for due process and equal protection purposes, that the Mattis

Plan facially discriminates against transgender persons, and

citing Frontiero, that heightened scrutiny is appropriate.

Appellee Br. 29-33. The government responds that transgender

persons are not a suspect class, that the Mattis Plan does not

target transgender persons, and that even if it did, it should not

receive heightened scrutiny because policies strictly of a

military nature can never be subject to heightened scrutiny.

Appellant Br. 19-23; Reply Br. 9-15. The government, citing

our opinion in Goldman, argues that the only reason heightened

scrutiny was applied in Frontiero was because the statute

involved personnel benefits and was therefore not “purported

to be a congressional judgment on a uniquely military matter.”

15

Goldman v. Sec’y of Defense, 734 F.2d 1531, 1537 (D.C. Cir.

1984).

The government thus has a point, but we also observed in

Goldman that not every infringement of a constitutional right

can be judged equally, distinguishing between the “freedom to

believe” in one’s religion, which is “absolute,” and the

“freedom to act” in accordance with one’s religion, which is

“regulable for a permissible reason, provided that the

regulation is not unduly restrictive.” Id. at 1540-41. It would

follow that a military policy prohibiting a servicemember from

stating his adherence to Jewish beliefs would receive more

scrutiny than a military policy restricting the wearing of a

yarmulke in observance of that faith. Similarly, we have stated

that even in the military context, “[c]lassifications based on

race or religion, of course, would trigger strict scrutiny,”

Steffan v. Perry, 41 F.3d 677, 689 n.9 (D.C. Cir. 1994) (en

banc), so we presumably would give more scrutiny to a military

policy that permits the wearing of any religious headgear

except yarmulkes than we would give to a neutral policy that

restricts all religious headgear.

Since Frontiero, facially discriminatory military policies

have been upheld only when there was a showing that the two

classes of individuals were not truly “similarly situated” or

when the discrimination was not against members of a suspect

class. See Schlesinger v. Ballard, 419 U.S. 498, 508-09 (1975)

(distinguishing Frontiero and upholding tenure statute that

differentiated between male and female naval officers because

it applied only in those circumstances where men and women

were not similarly situated); Rostker, 453 U.S. at 77-79

(upholding sex-based draft-registration statute aimed at

developing the pool of potential combat troops, where there

was no challenge to the then-existing exclusion of women from

combat, and thus the policy was “not invidious, but rather

16

realistically reflect[ed] the fact that the sexes [were] not

similarly situated”); Steffan, 41 F.3d at 684 n.3 (no heightened

scrutiny of Naval Academy policy prohibiting attendance of

homosexuals because homosexuals were not a suspect class

under the unchallenged, then-existing military regulations

criminalizing homosexual conduct – reasoning that is

untenable after Lawrence v. Texas, 539 U.S. 558, 578-79

(2003), which struck down a state statute criminalizing

consensual homosexual sodomy). But cf. Trump v. Hawaii,

138 S. Ct. 2392, 2419 (2018) (noting that in Fiallo v. Bell, 430

U.S. 787 (1977), the Court upheld an immigration statute that

included a “‘categorical’ entry classification that discriminated

on the basis of sex and legitimacy”).

Furthermore, most constitutional challenges to military

laws and regulations have involved policies that were facially

neutral. See, e.g., Greer v. Spock, 424 U.S. 828, 839-40 (1976)

(regulations restricting partisan political speeches,

demonstrations, and literature distribution were “politically

neutral,” and there was no claim that the military had acted

“irrationally, invidiously, or arbitrarily”); Goldman, 475 U.S.

at 513 (Stevens, J., concurring) (uniform regulation was “based

on a neutral, completely objective standard – visibility”); In re

Navy Chaplaincy, 738 F.3d 425, 430 (D.C. Cir. 2013)

(personnel policies for promoting chaplains were “facially

neutral” and there was “no showing of intent to discriminate”

based upon religion). At a minimum, the observation that the

military policy was facially neutral in each of those cases

demonstrates that the presence or absence of neutrality must

have some relevance to the analysis. Cf. Hawaii, 138 S. Ct. at

2417-18 (in resolving constitutional challenge to a Presidential

Proclamation in the analogous context of national security, the

Court’s first step was to determine that the Proclamation was

facially neutral). Even when dealing with facially neutral

policies, Congress and the Executive receive deference only

17

where military policies are based upon the “considered

professional judgment” of “appropriate military officials” and

only after finding that the policies “reasonably and

evenhandedly regulate” the matter at issue, Goldman, 475 U.S.

at 509-10; see also Rostker, 453 U.S. at 68 (court will not

substitute its “own evaluation of evidence for a reasonable

evaluation by the Legislative Branch”).

The point here is that determining the correct standard of

review for military policies, and then properly applying it, is a

complex venture. In Rostker, the Court declined the

Government’s invitation to declare that rational basis scrutiny,

rather than heightened scrutiny, necessarily applies to all

military policies, even when the policy includes a facially

discriminatory classification:

We do not think that the substantive guarantee

of due process or certainty in the law will be

advanced by any further “refinement” in the

applicable tests as suggested by the

Government. Announced degrees of

“deference” to legislative judgments, just as

levels of “scrutiny” which this Court announces

that it applies to particular classifications made

by a legislative body, may all too readily

become facile abstractions used to justify a

result. In this case the courts are called upon to

decide whether Congress, acting under an

explicit constitutional grant of authority, has by

that action transgressed an explicit guarantee of

individual rights which limits the authority so

conferred. Simply labeling the legislative

decision “military” on the one hand or “gender-

based” on the other does not automatically

guide a court to the correct constitutional result.

18

Rostker, 453 U.S. at 69-70. The fact that a military policy is

involved certainly counsels greater deference to Congress and

the Executive, but Rostker, Goldman, and the other precedent

cited above teach that the standard of review cannot be easily

quantified using a specific degree of deference or level of

scrutiny. Rather, our review involves the careful assessment of

a number of factors, including whether the policy is facially

neutral, whether it targets a suspect class, whether the class is

similarly situated to others affected, whether the policy was

motivated by animus, whether it infringes upon a fundamental

right (and, if so, how), what military purposes are furthered by

the policy, whether those purposes are legitimate, and whether

Congress or the Executive used considered professional

judgment and accommodated the servicemembers’ rights in a

reasonable and evenhanded manner, given the rights at issue.

At this juncture, I express no views on these various

factors, including whether the Mattis Plan was a product of

comparable “considered professional judgment” as the policy

in Goldman, other than to concur with the Judgment that the

Plan and its accompanying Panel Report constituted changed

circumstances that warrant vacating the preliminary injunction

and assessing the Mattis Plan anew. This is especially true

since the preliminary injunction relied heavily on the curious

circumstances surrounding the President’s tweet and

subsequent Memorandum, which reversed a policy supported

by lengthy and careful study and replaced it with a policy

lacking the apparent support of any contradictory study.

Reassessment is also necessary to clarify whether requiring

service in one’s biological sex impacts all servicemembers who

identify as transgender in the same manner, because that

impacts whether the Mattis Plan should be construed as one

monolithic policy rather than analyzed separately into its

constituent elements. Once those matters are understood, the

District Court can properly review the policy or policies

19

challenged by Plaintiffs. I express no views on the merits or

the outcome of that reassessment. I write only to provide some

guidance to the parties and the District Court so that this matter

can proceed in an efficient manner. At this stage, and on this

record, I believe it is premature to opine, let alone rule, on

anything further.

My concurring colleague would go much further and not

only reach the merits of the constitutional issues but also take

the drastic step of precluding any discovery and dismissing the

lawsuit. Slip op. at 1-2, 20, 58-60 (Williams, J., concurring).

For several reasons, I disagree. To begin with, having found

adequate non-constitutional reasons to vacate the preliminary

injunction, it is inappropriate to seek out constitutional

questions to decide in order to reach the same result. The

concurrence strains to find a case on point, but all are

inapposite; none holds that we are required to reach the merits

of the claims in order to dissolve a preliminary injunction.

Further, even if we have the discretion to reach the merits, that

doesn’t mean we should, particularly when they are

constitutional claims. “A fundamental and longstanding

principle of judicial restraint requires that courts avoid reaching

constitutional questions in advance of the necessity of deciding

them.” Lyng v. Northwest Indian Cemetery Protective Ass’n,

485 U.S. 439, 445 (1988); see also Stillman v. C.I.A., 319 F.3d

546, 548 (D.C. Cir. 2003); United States v. Rostenkowski, 59

F.3d 1291, 1302-03 (D.C. Cir. 1995).

I grant that the Court reached out to decide the

constitutional issues in Munaf v. Geren, 553 U.S. 674 (2008),

but that was not only an extraordinary circumstance but also

one where “[a]djudication of the merits . . . rest[ed] on a

question of law . . .” id. at 691. Here, the constitutional claims

are not purely legal in nature, and the District Court has found

that some factual issues are in dispute. The concurrence frets

20

about “intrusions into executive decision making” and of the

“President’s mental processes,” slip op. at 60 (Williams, J.,

concurring), but that does not justify shutting off all discovery.

For instance, as explained in our Judgment and above, there is

considerable confusion in this case about how the Mattis Plan

impacts transgender servicemembers who must comply with

the service requirements for their biological sex. * Compelling

military or executive officials to explain the operation and

purpose of this requirement would not improperly intrude upon

such mental processes. “It is the decision-making process that

requires shielding from public scrutiny, not the decision itself

once it has been acted on.” 3 WEINSTEIN’S FEDERAL EVIDENCE

§ 509.23 (2019); see also In re Sealed Case, 121 F.3d 729, 737

(D.C. Cir. 1997) (“The deliberative process privilege does not

shield documents that simply state or explain a decision the

government has already made . . . .”); EDWARD J.

IMWINKELREID, THE NEW WIGMORE: A TREATISE ON

EVIDENCE § 7.7.2 (3d ed. 2019) (“Nor is there a privilege for a

post-decision explanation of the decision.”); 26A CHARLES

ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE:

EVIDENCE § 5680 (2018) (“The [deliberative process] privilege

does not apply . . . to explanations of existing regulations or of

a past decision.”). Now that the Mattis Plan has been adopted,

there is nothing unduly intrusive about asking officials to

testify about how the policy operates and what military

*

My concurring colleague questions the relevance of this fact since

Plaintiffs seek a reversion to the Carter Plan, and it, like the Mattis

Plan, required transgender servicemembers to serve in accordance

with the requirements for their biological sex, slip op. at 59

(Williams, J., concurring). Fair enough, but Plaintiffs’ complaint

also seeks to enjoin “the categorical exclusion of transgender people

from military service,” J.A. 209, and Plaintiffs clearly argue that the

requirement of serving in one’s biological sex has the effect of a

categorical exclusion. Ultimately, this is a matter best sorted out by

the District Court in the first instance.

21

purposes it serves, and we have required similar discovery in

the past where military policies were at issue. See Waldie v.

Schlesinger, 509 F.2d 508, 510 & n.1 (D.C. Cir. 1974)

(denying summary judgment where affidavits of government

witnesses were “ambiguous” and “conclusory” in explaining

military policies). Indeed, this very type of discovery occurred

in Goldman and Rostker without any apparent damage to the

republic. See, e.g., Brief for Respondents, Goldman v.

Weinberger, 1985 WL 669077, at *4-5 (“At trial, Air Force

witnesses explained why the extraordinarily detailed regulation

of the official uniform worn by its personnel is deemed

essential to the accomplishment of the Air Force’s

mission.”); Brief for Appellant, Rostker v. Goldberg, 1981

WL 390367, at *30 (“[H]igh level military personnel who

testified in this case were of the view . . . that developing

methods of warfare employed by the United States and its allies

would require more combat intensive forces than those that had

been required during past military conflicts.” (citing deposition

testimony)).

My concurring colleague points out that Rostker and

Goldman reversed the trial court rulings on the merits, slip op.

at 60 (Williams, J., concurring), but in doing so, the Court did

not criticize discovery about how military policies operated or

what interests they served. Rather, the Court noted that it was

improper for lower courts to consider plaintiff expert testimony

that contradicted the military experts about whether the policies

at issue were justified under the circumstances. Rostker, 453

U.S. at 80-81; Goldman, 475 U.S. at 509-10. The concurrence

cites no case that has adopted the astounding rule that the

government is immune from all discovery explaining the

operation and purpose of its military policies. Even in a facial

challenge, discovery may be necessary where the impact of the

regulation is unclear and disputed. Turner Broad. Sys., Inc. v.

F.C.C., 512 U.S. 622, 667-68 (1994) (reversing summary

22

judgment for the government in facial challenge because of

factual disputes about the “actual effects” of the regulation). It

is one thing to defer to the government’s justification for

military policy; it is quite another not to require the government

to explain fully, under oath, that justification. The former

custom of deference is reasonable, but the latter is imprudent.

Cf. United States v. Nixon, 418 U.S. 683, 710 n.18 (1974)

(“Because of the key role of the testimony of witnesses in the

judicial process, courts have historically been cautious about

privileges.”). The concurrence cites no reason why the current

commander-in-chief is entitled to more deference or authorized

to provide less explanation than any of his predecessors, and I

am certainly not aware of any. It is for this reason that the panel

judgment opted for regular order.

WILLIAMS, Senior Circuit Judge, concurring in the result:

The district court issued a nationwide injunction strictly

limiting the authority of the current President and secretary of

defense to alter or amend their predecessors’ military directives

and policy judgments about the composition of the armed

forces. In our January 4 judgment, we reversed the court’s

refusal to dissolve the injunction; we also held that it abused its

discretion to the extent it granted plaintiffs additional relief.

See Doe 2 v. Shanahan, No. 18-5257, 2019 WL 102309, at *1

& n.1 (D.C. Cir. Jan. 4, 2019) (“Panel Judgment”), rev’g Doe

2 v. Trump, 315 F. Supp. 3d 474 (D.D.C. 2018), cert. before

judgment denied, No. 18-677, 2019 WL 272026 (U.S. Jan. 22,

2019). I joined the panel in dissolving the injunction—and

explained that a separate opinion would follow. This is that

opinion.

I write separately because I believe the record and the law

require dismissal of plaintiffs’ claims. A correct resolution at

this stage is important because the decisions of the district court

reflect what in my view are wholly mistaken assumptions about

the nature of constitutional review of military personnel

policy—at least on the facts of this case. To be specific, the

court contemplates a highly intrusive examination of the mental

processes of the civilian and military leadership of a coordinate

branch of government. See, e.g., Doe 2 v. Mattis, 322 F. Supp.

3d 92, 101 (D.D.C. 2018) (declaring that plaintiffs “are entitled

to complete discovery” regarding the executive’s “alleged

deliberations”); Doe 2 v. Trump, 319 F. Supp. 3d 539, 543

(D.D.C. 2018) (emphasizing that plaintiffs will “be able” to

“seek discovery from” the President). These interrogations are

to be aimed, the district court has said, at uncovering infirmities

in a policy that the secretary of defense, in his “professional

judgment,” has determined is essential to putting our armed

forces “in the strongest position to protect the American

people.” Memorandum from Secretary Mattis to President

2

Trump 3 (Feb. 22, 2018) (“Mattis Memo”), J.A. 265. Under

prevailing constitutional doctrine, however, this case can (and

should) be resolved on the existing record.

I should start by clarifying what this case is actually about.

It is not about a “transgender ban.” See, e.g., Appellees’ Br. 2.

The challenged policy expressly provides that “[t]ransgender

persons . . . may serve, like all other Service members.” Mattis

Memo 3, J.A. 265 (emphasis added). It is instead about whether

the Constitution requires the current administration to reinstate

a policy created by the previous administration allowing certain

transgender individuals to serve in their preferred gender rather

than their biological sex, as all service members have for

decades. Id. For those transgender persons for whom the value

of serving otherwise than in their biological sex exceeds the

value of being in the military, of course, the policy thwarts their

wish to serve. The Constitution does not compel the military

to yield to their preference.

Once we abstract away from the politically charged

subject-matter—as we must—this is a straightforward legal

case. Our “Constitution vests [t]he complex, subtle, and

professional decisions as to the composition, training,

equipping, and control of a military force exclusively in the

legislative and executive branches.” Panel Judgment *2

(alteration in original) (quoting Kreis v. Sec’y of Air Force, 866

F.2d 1508, 1511 (D.C. Cir. 1989)) (internal quotation marks

omitted); see U.S. Const. art. I, § 8, cls. 12–16; art. II, § 2, cl.

1. So, although the policy argument in favor of accommodating

plaintiffs’ claimed entitlement to transition into their preferred

gender may be compelling, the legal argument for requiring

such accommodation is not.

The current administration’s policy—which is far more

accommodating to transgender service than that of any

administration from 1789 until 2016—easily passes

3

constitutional muster. Given their biological differences, males

and females have long been assigned to separate berthing,

bathroom, and shower facilities, and subject to different sets of

physical fitness, body fat, uniform, and grooming standards.

This is unquestionably lawful; it is required (in part) by

Congress, see, e.g., 10 U.S.C. § 7419, and has been approved

(repeatedly) by the Supreme Court, see, e.g., United States v.

Virginia, 518 U.S. 515, 550 n.19 (1996); Rostker v. Goldberg,

453 U.S. 57, 81 (1981). To put it simply, there is no

constitutional right for, say, biological males who identify as

female to live, sleep, shower, and train with biological females.

Whether allowing such flexibility in military service is a good

idea or not is of no concern to the courts; that is a question for

the people acting through their elected representatives.

I

With the general issue in mind, I discuss the relevant

terminology and the successive policies that lie at the root of

the case, together with a timeline of the litigation; I then turn to

the legal issues.

A

Transgender individuals, according to plaintiffs’ expert

witness, have a “gender identity”—an “internalized, felt sense

of who they are as male or female”—that does not align with

“their assigned sex at birth.” Decl. of George Richard Brown

in Support of Plaintiffs ¶¶ 13–14 (Aug. 30, 2017) (“Brown

2017 Decl.”), J.A. 1056; accord, e.g., Amici Curiae Am.

Medical Ass’n et al. Br. (“AMA Br.”) 3. In this way,

“[t]rangsender people differ from non-transgender individuals,

whose gender identity aligns with the sex assigned at birth.” Id.

at 4. In virtually all cases, the latter concept, “sex assigned at

birth,” lines up with an individual’s “biological sex,” as

determined by “chromosomes, gonads, hormones, and

4

genitals,” Department of Defense Report and

Recommendations on Military Service by Transgender Persons

7 n.10 (Feb. 2018) (“DoD Report”), J.A. 275 (emphasis added);

see, e.g., Agnes Gereben Schaefer et al., Assessing the

Implications of Allowing Transgender Personnel To Serve

Openly 5 (2016) (“RAND Report”), J.A. 621 (explaining that

“birth sex . . . typically correlates with primary sex

characteristics (e.g., genitalia)”). To be sure, some transgender

individuals undergo sex reassignment surgery. But the rates for

complete sex reassignment surgery “are exceedingly low—2%

of transgender men and 10% of transgender women.” DoD

Report 31, J.A. 299.

Gender dysphoria, again according to plaintiffs’ experts,

is a mental health condition from which only “a subset of

transgender people” suffer. Decl. of George Richard Brown in

Support of Opp’n to Defs.’ Mot. to Dismiss ¶ 9 (May 11, 2018),

J.A. 839; accord, e.g., Decl. of Brad R. Carson in Support of

Pls.’ Mot. for Preliminary Injunction ¶ 23 (Aug. 28, 2017), J.A.

995. It is a serious mental health condition that is recognized

by the American Psychiatric Association’s Diagnostic and

Statistical Manual of Mental Disorders (or “DSM”). Brown

2017 Decl. ¶¶ 16–18, J.A. 1057; accord, e.g., DoD Report 13,

J.A. 281; AMA Br. 7. The condition is “associated with

clinically significant distress or impairment in social,

occupational, or other important areas of functioning.” DoD

Report 13, J.A. 281 (quoting Am. Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Disorders 453

(5th ed. 2013)); accord, e.g., Brown 2017 Decl. ¶ 17, J.A. 1057;

AMA Br. 7. “[U]ntreated,” it “can cause debilitating distress,

depression, impairment of function, self-mutilation to alter

one’s genitals or secondary sex characteristics, other self-

injurious behaviors, and suicide.” Id. at 9.

“The recommended treatment for gender dysphoria

includes assessment, counseling, and, as appropriate,” gender

5

transition. AMA Br. at 11. Gender transition includes “social

transition, hormone therapy, and surgical interventions to bring

the body into alignment with one’s gender identity.” Id.;

accord, e.g., Brown 2017 Decl. ¶ 23, J.A. 1059. Social

transition, the sole choice of many, consists simply of “living

one’s life fully in accordance with one’s gender identity.”

AMA Br. 11. “This typically includes publicly identifying

oneself as that gender through all of the ways that people signal

their gender to others such as through their name, pronoun

usage, dress, manner and appearance, and social interactions.”

Id.

Transition became relevant to military personnel

administration for the first time in 2016, under the orders of

then-Secretary of Defense Ashton Carter. The so-called Carter

policy, which we’ll discuss in detail below, defined a transition

as being “complete” when a service member had “completed

the medical care identified or approved by a military medical

provider in a documented medical treatment plan as necessary

to treat” gender dysphoria. U.S. Dep’t of Defense,

Transgender Service in the U.S. Military: An Implementation

Handbook 11 (Sept. 30, 2016) (“Carter Memo Implementation

Handbook”), J.A. 518; see also Memorandum from Secretary

Carter to Secretaries of Military Departments, attachment at 1

(June 30, 2017) (“Carter Memo”), J.A. 588 (explaining that a

“history of medical treatment associated with gender transition

is disqualifying” unless a service member “has completed all

medical treatment associated” with the transition).

B

We deal here with three successive policies on military

service by transgender persons: (1) Pre-2016; (2) the Carter

policy (so named after Secretary Carter); and (3) the Mattis

policy (so named after James Mattis, Carter’s immediate

successor as secretary of defense).

6

1. Pre-2016.

(A) Being transgender. The parties appear to agree that

transgender persons with or without gender dysphoria (or the

equivalent of this condition in earlier terminology) were barred

from military service. See, e.g., Appellants’ Br. 12; Appellees’

Br. 3. I return to this below.

(B) Gender dysphoria was clearly a bar to military service

(at least as clearly as one can say, given changes in

nomenclature). Given the “unique mental and emotional

stresses of military service,” DoD Report 10, J.A. 278, the

executive branch long presumptively disqualified from service

individuals with “[m]ost mental health conditions,” id. at 20,

J.A. 288. The military leadership has traditionally aligned

these disqualifying conditions with the conditions listed in the

DSM. Id. at 34, J.A. 302.

For decades, then, the military’s “accession” standards—

the standards governing induction into the armed forces—

disqualified individuals with “psychosexual conditions,”

including “transsexualism.” M. Joycelyn Elders et al., Medical

Aspects of Transgender Military Service 3 (2014), J.A. 784.

(“Transsexualism” first appeared in the DSM in 1980. DoD

Report 10, J.A. 278.) Likewise, the military’s “retention”

standards—the standards governing separation from the armed

forces—traditionally permitted discharge of individuals with

“sexual gender and identity disorders.” Elders et al., supra, at

3, J.A. 784.

The parties seem generally to regard the historic accession

and retention practices as effectively barring all “[t]ransgender

individuals” from “enlist[ing] or serv[ing] in the US armed

forces.” Id. Even transgender individuals who did not “take

hormones, have surgery, or undergo any other aspect of gender

transition” were, under these “psychological” standards,

7

ineligible to serve. Id. (emphasis added); see also Doe 1 v.

Trump (Doe I), 275 F. Supp. 3d 167, 178 (D.D.C. 2017)

(explaining that “transgender individuals” could not “obtain

medical waivers for entrance into the military”).

I frankly have some doubt whether this characterization of

the pre-2016 world is fully accurate. Because many

transgender persons live in their “biological sex,” without

apparent gender dysphoria, it seems improbable that the

policies in fact excluded all transgender persons. As nothing

before the court appears to turn on this, however, I will assume

the correctness of the parties’ shared assumptions.

2. Carter Policy.

As the administration of President Barack Obama wound

down, the military embarked on a reconsideration of its

longstanding policy on “transsexualism.” By that time, the

DSM no longer included that term; it had been replaced with

“gender dysphoria,” detailed above. For this and other reasons,

then-Secretary of Defense Ashton Carter adopted a new policy

to govern the “accession” and “retention” of “transgender

personnel.” Carter Memo 1, J.A. 585.

(A) Transgender individuals not suffering from gender

dysphoria or undergoing gender transition were eligible for

service—only in their biological sex.1

1

Under the Carter policy, a service member “must meet all military

standards associated with the with member’s gender marker in

DEERS [the Defense Enrollment Eligibility Reporting System] and

use military berthing, bathroom, and shower facilities in accordance

with the DEERS gender marker.” Carter Memo Implementation

Handbook 11, J.A. 518. That gender marker is only changed from a

member’s biological sex to his or her preferred gender after “gender

transition is complete.” Id. at 12, J.A. 519. Because “gender

8

(B) For transgender individuals with gender dysphoria or

who embarked on transition to their preferred gender, the story

was more complicated.

(1) A “history of gender dysphoria” was “disqualifying”

for accession purposes unless an individual had “been stable

without clinically significant distress or impairment in social,

occupational, or other important areas of functioning for 18

months.” Carter Memo, attachment at 1, J.A. 588. Individuals

diagnosed with gender dysphoria while serving could continue

to serve provided that they met deployability standards, see id.,

and were able to serve in their biological sex (unless and until

they completed a gender transition, as discussed below), see

Carter Memo Implementation Handbook 11–12, J.A. 518–19;

supra p. 7 n.1.

(2) A history of treatment for “gender transition” was

likewise “disqualifying” for accession purposes unless an

individual had “completed all medical treatment associated

with the . . . gender transition” and had “been stable in the

transition” is a “medical treatment” for gender dysphoria, see id. at

11, J.A. 518; Carter Memo, attachment at 1, J.A. 588, only

individuals who have had gender dysphoria and have transitioned as

a treatment for that condition are eligible to serve in their preferred

gender. All others must serve in their biological sex. DoD Report 8,

J.A. 276 (“The Carter policy, however, still requires transgender

Service members who have not changed their gender marker in

DEERS, including persons who identify as other than male or female,

to meet the standards associated with their biological sex.”); see, e.g.,

U.S. Navy, Transgender and Gender Transition: Commanding

Officer’s Toolkit 9, J.A. 468 (“Prior to the DEERS gender marker

change, the Sailor will be assigned to the corresponding berthing of

their birth gender.”).

9

preferred gender for 18 months.” Carter Memo, attachment at

1, J.A. 588.

Transgender persons who had completed “gender

transition” as a treatment for “gender dysphoria” could access

and serve in their “preferred gender” rather than their biological

sex. Id.; see also Appellees’ Br. 19, 41, 42 (referring to

transition as “treatment”). Because “gender transition” under

the Carter policy included (as in general medical parlance)

social transition, i.e., simply “living in the preferred gender,”

Carter Memo Implementation Handbook 31, J.A. 538, an

individual could (for example) remain biologically male in

every respect (at least from an external point of view) and,

nonetheless, demand to be treated as in all respects female,

including for “medical fitness, physical fitness, uniform and

grooming, deployability and retention standards,” as well as for

assignment to “berthing, bathroom, and shower facilities,” id.

at 43–44, J.A. 550–51.

For retention purposes, individuals who embarked on

gender transition while serving could continue to serve

provided that they met the standards associated with their

biological sex until their transition was “complete” (at which

point, they could serve in their preferred gender). See Carter

Memo Implementation Handbook 11–12, J.A. 518–19; supra p.

7 n.1.2

2

Of course, as the Carter policy acknowledges, gender transition

“while serving in the military presents unique challenges associated

with addressing the needs of the Service member in a manner

consistent with military mission and readiness needs.” Carter Memo,

attachment at 2, J.A. 589. For example, individuals “undergoing

cross-sex hormone therapy may experience changes to their body

shape and physical strength, which may have a notable effect on their

ability to maintain standards.” Carter Memo Implementation

Handbook 29, J.A. 536. Accordingly, gender transition may “have

10

3. Mattis Policy.

(A) Like the Carter policy before it, the Mattis policy

allowed transgender persons without a history or diagnosis of

gender dysphoria to serve in their biological sex. Mattis Memo

3, J.A. 265.

(B) Also like the Carter policy, the Mattis policy applied

more complex rules for those with a history or diagnosis of

gender dysphoria or involved in gender transition.

(1) The policy presumptively disqualified for accession

purposes individuals with a “history” of “gender dysphoria”

unless they were stable, without clinically significant

symptoms, for some period of time—36 months under Mattis,

id. 2, J.A. 264 (as compared with 18 months under Carter). For

retention purposes, individuals “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.” Id.

(2) The Mattis policy diverged strongly from the Carter

policy in its handling of gender transition. It reinstated the prior

military practice of requiring that “all” individuals serve in their

“biological sex”; those who had undergone “gender transition”

were thus presumptively disqualified. Mattis Memo 2–3, J.A.

264–65. In recognition that some individuals had acted in

reliance on the Carter policy, however, Secretary Mattis created

an impact on . . . deployability, assignment considerations, medical

classification, and aspects of individual readiness (e.g., physical

fitness, body composition assessment, and professional military

education attendance).” Id. at 21, J.A. 528; see also id. at 49, J.A.

556 (suggesting that some transitioning individuals request to

“reschedule[] training events” or enter “extended leave/absence until

gender transition process is complete”).

11

a reliance exception: individuals who were “diagnosed with

gender dysphoria” under the Carter policy could “continue to

serve in their preferred gender” (rather than their biological

sex). Id. at 2, J.A. 264.

The following chart summarizes the three policies for

accession and retention of transgender personnel:

LONGSTAN’G 2016 CARTER POLICY 2018 MATTIS POLICY

POLICY

Gender Dysphoria?; Gender Eligible for Eligible for Eligible for

Transition?; Desired Service

Standards? Accn Retn Accn Retn Accn Retn

No GD No Trans’n; Bio. Sex No No Yes Yes Yes Yes

If Stable If Meet If Stable If Meet

No Trans’n; Bio. Sex No No 18 Deployab’y 36 Deployab’y

12

Months Stand’ds Months Stand’ds

Trans’n in Progress; If Stable If Meet Yes, Under

No No 18 Deployab’y No Reliance

Gender Bio. Sex

Dysph. Months Stand’ds Exception

Trans’n in Progress; No No No No No No

Pref’d Gender

Trans’n Complete; If Stable If Meet Yes, Under

No No 18 Deployab’y No Reliance

Pref’d Gender

Months Stand’ds Exception

13

C

Plaintiffs launch a comprehensive broadside against the

Mattis policy and demand a judicial mandate ordering the

executive branch to “revert to” the Carter policy. See Second

Am. Compl. 20, J.A. 209. Plaintiffs claim support in the

supposedly “unusual” circumstances surrounding the

announcement of the new policy. In doing so, they resolutely

focus on a presidential “tweet” from July 2017, an event that,

they say, forever tainted the Mattis policy. But they pay little

or no attention to Secretary Mattis’s prior order of June 30,

2017, deferring the start of accessions under the Carter policy.

And while the sequence may have little real consequence under

a proper legal analysis, plaintiffs’ persistent highlighting of the

tweet suggests the need for a precise timeline:

July 28, 2015: Secretary Carter convenes a working group

to study the “policy options” for allowing service by

“transgender Service members.” He instructs the group to

“start with [a] presumption”—namely, “that transgender

persons can serve openly without adverse impact.”

Memorandum from Secretary Carter to Secretaries of Military

Departments (July 28, 2015), J.A. 709.

2016: The Carter working group enlists the RAND

National Defense Research Institute to study the impacts of

allowing “transgender service members” to serve openly.

RAND finds (at, e.g., J.A. 646–48, 655–59) that the proposed

policy change would have an adverse impact on health care

utilization costs and readiness, but concludes (at, e.g., J.A. 685,

686) that the impact would be “negligible” or “marginal”

because of the “small” number of transgender service members

relative to the size of the military as a whole. See RAND

Report, J.A. 597–708. RAND does not explain why overall

military costs are a relevant comparator, as opposed, for

example, to the benefits to be derived (by the military and the

14

individuals in question) from increased transgender service.

RAND further concludes, based on “limited publicly available

data,” that open transgender service would not have a

“significant effect” on unit cohesion. Id. at 44, J.A. 660. But

RAND does “not have direct survey evidence or other data to

directly assess the impact on the U.S. military,” id., and

identifies “reports of resistance” in the ranks to a similar policy

change in the United Kingdom, id. at 45, J.A. 661.

June 30, 2016: Following this review, Secretary Carter

adopts a new policy on “Military Service of Transgender

Service Members.” The Carter policy “[e]stablishes policy . . .

for the standards for retention, accession, separation, in-service

transition, and medical coverage for transgender personnel

serving in the Military Services.” See Carter Memo 1, J.A.

585.

September 30, 2016: The military issues a 71-page

handbook to address “some of the issues” related to

“transgender Americans serving openly in the military.” See

Carter Memo Implementation Handbook 8, 10, J.A. 515, 517.

June 30, 2017: On the day before the Carter policy’s

accession directives were scheduled to go into effect, Secretary

Mattis “defer[s] the start of accessions [under the Carter policy]

for six months.” He explains that his “intent is to ensure that

[he] personally ha[s] the benefit of the views of the military

leadership and of the senior civilian officials who are now

arriving in the Department.” The military will “use this

additional time to evaluate more carefully the impact of such

accessions on readiness and lethality.” Memorandum from

Secretary Mattis to Secretaries of Military Departments (June

30, 2017), J.A. 425.

15

July 26, 2017: The President, who appears not to have

addressed the issue until now, expresses agreement with

Secretary Mattis. He tweets:

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[.]

July 27, 2017: The Chairman of the Joint Chiefs of Staff

announces that “no modifications” to policy will be made in

response to the tweet. See Memorandum from Chairman

Dunford to Chiefs of Military Services (July 27, 2017), J.A.

408.

August 9, 2017: Without mentioning Secretary Mattis’s

June 30, 2017 deferral order or Chairman Danford’s above

announcement, plaintiffs file suit, claiming that the President’s

tweet “reverse[d] the current policy”—referring to the Carter

policy, even though Secretary Mattis had already put that on

hold. Compl. ¶ 1 (Aug. 9, 2017), ECF No. 1.3

August 25, 2017: The President issues a formal

memorandum announcing that he, like Secretary Mattis, wants

“further study” before any implementation of Secretary

Carter’s “policy change.” In the President’s “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

3

Citations to ECF Numbers are to the district court docket in Doe

2 v. Trump, No. 17-cv-01597-CKK (D.D.C. filed Aug. 9, 2017).

16

lethality, disrupt unit cohesion, or tax military resources.”

Memorandum of August 25, 2017, 82 Fed. Reg. 41,319, 41,319

(Aug. 30, 2017) (“2017 Presidential Memorandum”).

Accordingly, exercising the power entrusted to him as

“Commander in Chief of the Army and Navy,” U.S. Const. art.

II, § 2, cl. 1, the President directs the Secretary of Defense “to

return to the longstanding policy and practice on military

service by transgender individuals that was in place prior to

[former-Secretary Carter’s change]”—at least “until such time

as a sufficient basis exists upon which to conclude that

terminating that policy and practice would not have [] negative

effects,” 2017 Presidential Memorandum, 82 Fed. Reg. at

41,319. But the President provides that “no action may be

taken” against “currently serving” transgender individuals until

the Secretary “determine[s] how to address” the issue. Id. at

41,320. The President also makes clear that Secretary Mattis

could “advise [him] at any time, in writing, that a change to this

[longstanding] policy is warranted.” Id. at 41,319.

September 14, 2017: Secretary Mattis convenes a panel of

experts. He orders them to implement “a comprehensive,

holistic, and objective approach to study military service by

transgender individuals, focusing on military readiness,

lethality, and unit cohesion, with due regard for budgetary

constraints and consistent with applicable law.” Memorandum

from Secretary Mattis to Secretaries of Military Departments 2

(Sept. 14, 2017), J.A. 404.

October 30, 2017: At plaintiffs’ request, the district court

preliminarily enjoins all branches of the military from

enforcing two provisions of the 2017 Presidential

Memorandum. See Doe I, 275 F. Supp. 3d 167.

Specifically, the court “enjoins Defendants from enforcing

the following directives of the [2017] Presidential

Memorandum”: (1) “‘return to the longstanding policy and

17

practice on military service by transgender individuals that was

in place prior to [the Carter policy]’”; and (2) “‘maintain the

[longstanding, pre-Carter] policy regarding accession of

transgender individuals into military service.’” Order 1–2 (Oct.

30, 2017), ECF No. 60, J.A. 188–89 (quoting 2017 Presidential

Memorandum, 82 Fed. Reg. at 41,319).

The court characterizes the President’s directives as

discriminating on the basis of “transgender identity,” and as

therefore subject to “intermediate scrutiny.” 275 F. Supp. 3d at

209. Applying such scrutiny, the court holds that the

President’s directives likely fail because of several supposedly

“unusual” factors associated with the President’s

announcement—namely, that it was “contradicted” by the

conclusions of a previous administration, lacked supporting

“studies,” and was issued “via Twitter,” without “formality.”

Id. at 212–13 (emphasis removed).

November 21, 2017: The government files an interlocutory

appeal of the preliminary injunction. See Defs.’ Notice of

Appeal (Nov. 21, 2017), ECF No. 66.

November 27, 2017: The district court issues a

“clarification.” Although the October 2017 order enjoined

implementation of only two specific provisions of the

Presidential Memorandum, the court “clarif[ies]” that “[a]ny

action by any of the Defendants that changes [the] status quo

[i.e., the Carter policy] is preliminarily enjoined.” Order 2

(Nov. 27, 2017) (emphasis in original), ECF No. 70, J.A. 110.

The court, however, continues to view the original October

2017 injunction as the operative injunction. See, e.g., Doe 2 v.

Trump (Doe II), 315 F. Supp. 3d 474, 498 (D.D.C. 2018) (“To

avoid any possible need for clarification, the Court states

expressly: enforcing the Mattis Implementation Plan would

violate the Court’s October 30, 2017 preliminary injunction.”).

18

January 4, 2018: In anticipation of the announcement of

the Mattis policy (see February 22), the government voluntarily

dismisses its appeal. See Doe 1 v. Trump, No. 17-52-67, 2018

WL 411236 (D.C. Cir. Jan. 4, 2018).

February 2018: The Department of Defense releases a 44-

page report based on the recommendations of the panel of

experts convened by Secretary Mattis. “The Panel made

recommendations based on each Panel member’s independent

military judgment.” DoD Report 4, J.A. 272.

February 22, 2018: In “light of the Panel’s professional

military judgment” and his own “professional judgment,”

Secretary Mattis recommends a new policy to the President.

Noting that the President had “made clear” that the Secretary

could “at any time, in writing,” advise that a change in policy

was “warranted,” Secretary Mattis recommends that the

President “revoke” his 2017 Presidential Memorandum, “thus

allowing” the military to adopt the new policy. Mattis Memo

1, 3, J.A. 263, 265.

March 23, 2018: The President (again) agrees with

Secretary Mattis, revoking all prior directives so that Secretary

Mattis could “implement any appropriate policies.” See

Memorandum of March 23, 2018, 83 Fed. Reg. 13,367, 13,367

(Mar. 28, 2018) (revoking the 2017 Presidential Memorandum

“and any other directive [the President] may have made with

respect to military service by transgender individuals”).

On the same day, the government, in accord with its prior

dismissal of its appeal, seeks from the district court protection

from a possible contempt citation. Though framing its motion

as a request to the court to dissolve the injunction, the

government “maintain[s] that the Court’s preliminary

injunction, which addressed only certain provisions of the

President’s 2017 Memorandum [see account of November 27,

19

2017 injunction], does not extend to the Department’s new

policy.” “But in an abundance of caution,” the government

urges the court “to dissolve the preliminary injunction in order

to permit the military to implement the policy it believes will

best ensure our Nation’s defense.” Defs.’ Mot. to Dissolve the

Preliminary Injunction 2 (Mar. 23, 2018), ECF No. 96.

April 6, 2018: Following an inquiry by the district court as

to whether plaintiffs will be “amending the complaint” in light

of the announcement of the new Mattis policy, see Tr. 5:16–17

(Mar. 28, 2018), ECF No. 102, plaintiffs amend their

complaint, see Second Am. Compl. (Apr. 6, 2018), ECF No.

106, J.A. 190.

April 20, 2018: The government again asks the district

court, “in an abundance of caution,” to dissolve the preliminary

injunction (again asserting that the original injunction did not

apply to Secretary Mattis’s actual policy choice). Defs.’ Mot.

to Dissolve the Preliminary Injunction 2 (Apr. 20, 2018), ECF

No. 116.

August 6, 2018: The district court refuses to dissolve the

injunction, holding that the October 2017 injunction still

applies because the Mattis policy “merely implements the basic

policy directives in the President’s 2017 tweet and

memorandum.” Doe II, 315 F. Supp. 3d at 488 n.6. The court

undertakes no detailed comparison between the Mattis policy

and the military’s longstanding prior policy, or between the

Mattis policy and the Carter policy, or between the Mattis

policy and the outstanding preliminary injunction.

August 24, 2018: The district court denies the

government’s motion for summary judgment, holding that

plaintiffs are “entitled to complete discovery” regarding the

executive branch’s “alleged deliberation” [sic] over the Mattis

policy. 322 F. Supp. 3d at 101.

20

November 30, 2018: The district court denies the

government’s motion for a stay pending appeal. See Doe 2 v.

Mattis, 344 F. Supp. 3d 16 (D.D.C. 2018).

II

On January 4, 2019, we reversed, and I join my colleagues

in dissolving the injunction. But this is where I must part ways.

A

The panel assumes that we are “reviewing” not a new or

modified injunction, but a “motion to dissolve” a pre-existing

one. Panel Judgment *1. This matters, the panel says, because

our review of a motion to dissolve is particularly narrow: The

only issue is whether the government has shown a “significant

change” in circumstances such that continued enforcement of

the original injunction may no longer be appropriate. Id. “The

merits of the preliminary injunction,” the panel concludes, “are

not properly before us.” Id. But on a sound view of the case,

the merits are before us.

1. The merits are properly before us because we confront

a necessarily new or modified injunction.

First, although the government styled its request for relief

as a motion to dissolve the earlier preliminary injunction, it

made clear its view that the actions of Secretary Mattis were so

different from anything enjoined that the earlier injunction did

not apply. See, e.g., Defs.’ Mot. to Dissolve the Preliminary

Injunction 2 (Apr. 20, 2018), ECF No. 116; see also

Appellants’ Br. 2, 3, 15, 16, 43, 47 (arguing that the district

court extended the earlier, October 2017 injunction). When a

district court uses a preliminary injunction addressed to certain

conduct as a vehicle for barring completely different conduct,

it has either “necessarily modified” the prior injunction or

issued a “completely new” one. Int’l Ass’n of Machinists &

21

Aerospace Workers v. Eastern Air Lines, Inc., 849 F.2d 1481,

1486 (D.C. Cir. 1988). Either way, our review is standard and

far from narrow: The precedents require us to assess “the

district court’s legal conclusions as to each of the four”

preliminary injunction factors—including plaintiffs’ likelihood

of “success on the merits”—“de novo, and its weighing of them

for abuse of discretion.” Archdiocese of Wash. v. Wash. Metro.

Area Transit Auth., 897 F.3d 314, 321 (D.C. Cir. 2018)

(quoting League of Women Voters v. Newby, 838 F.3d 1, 6–7

(D.C. Cir. 2016)). Here, the likelihood of plaintiffs’ success on

the merits turns on the probability that their constitutional claim

is valid.

If not completely new, the order before us—the August 6,

2018 injunction—is a modified injunction. In that order, the

district court purported to “clarif[y]” that the Mattis policy

“violate[d] the Court’s [pre-existing] October 30, 2017

preliminary injunction.” Doe II, 315 F. Supp. 3d at 498. But

“we are not governed by the district court’s own

characterization of the order as [a] . . . ‘clarification,’ as

distinguished from a ‘modification.’” United States v. Philip

Morris USA Inc., 686 F.3d 839, 844 (D.C. Cir. 2012) (quoting

Birmingham Fire Fighters Ass’n 117 v. Jefferson Cnty., 280

F.3d 1289, 1292 (11th Cir. 2002)); see also Abbott v. Perez, 138

S. Ct. 2305, 2320 (2018) (refusing to “allow[] district courts to

‘shield [their] orders from appellate review’” with the flip of a

“label” (alteration in original) (quoting Sampson v. Murray,

415 U.S. 61, 87 (1974))). Rather, we must assess “the scope”

of the October 2017 injunction with our own “‘independent

judgment.’” Philip Morris, 686 F.3d at 844 (quoting Int’l Ass’n

of Machinists, 849 F.2d at 1485).

The original October 2017 injunction “enjoin[ed]

Defendants from enforcing [two] directives of the [2017]

Presidential Memorandum”: (1) “‘return to the longstanding

policy and practice on military service by transgender

22

individuals that was in place prior to [the Carter policy]’”; and

(2) “‘maintain the [longstanding, pre-Carter] policy regarding

accession of transgender individuals into military service.’”

Order 1–2 (Oct. 30, 2017), ECF No. 60, J.A. 188–89 (quoting

2017 Presidential Memorandum, 82 Fed. Reg. at 41,319). But

the Mattis policy does neither of the actions forbidden in the

language quoted above. The “longstanding policy” was a

“blanket ban on all ‘transgender individuals,’” Doe II, 315 F.

Supp. 3d at 481; whereas, the Mattis policy, as the panel

correctly concludes, “allows some transgender persons barred

under the . . . [longstanding policy] to join and serve in the

military,” Panel Judgment *2; see also id. (“[T]he District

Court erred in finding that the Mattis Plan was a blanket

transgender ban.”). Because the defendants were not “already

bound by the” October 2017 injunction not to pursue the Mattis

policy, Washington Metro. Area Trans. Comm’n v. Reliable

limousine Serv. LLC, 776 F.3d 1, 9 (D.C. Cir. 2015), the August

2018 order “change[d] the legal relationship of the parties,” id.

(citing Philip Morris, 686 F.3d at 844). The August 2018

injunction is thus fully subject to conventional review.

An alternative analysis leads to the same result. The

August 2018 order is subject to full review because at the time

of its issuance the plaintiffs’ lawsuit challenging the President’s

2017 directives—the basis of the October 2017 preliminary

injunction—was moot. The district court, to be sure, disagreed,

see Doe II, 315 F. Supp. 3d at 492–96, but, again, we review its

“interpretation of [the prior] injunction de novo,” United States

ex rel. Yelverton v. Fed. Ins. Co., 831 F.3d 585, 587 (D.C. Cir.

2016) (citing Int’l Ass’n of Machinists, 849 F.2d at 1485). And

that October 2017 injunction addressed the 2017 Presidential

Memorandum, which the President revoked, see 83 Fed. Reg.

at 13,367, well before the district court issued its August 2018

injunction. Although such a repeal and replace does not always

moot a claim, it does so where the challenged policy is

“changed substantially,” NE Fla. Chapter of Associated Gen.

23

Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662

n.3 (1993), as the Presidential Memorandum undoubtedly was,

see Panel Judgment *2 (“The government took substantial

steps to cure the procedural deficiencies the court identified in

the enjoined 2017 Presidential Memorandum.”). See also

Trump v. Int’l Refugee Assistance, 138 S. Ct. 353, 353 (2017)

(dismissing as moot a challenge to an expired presidential order

that suspended the entry of certain aliens, even though the

President had already issued a new, related order); Trump v.

Hawaii, 138 S. Ct. 377, 377 (2017) (same). Thus, the district

court “necessarily . . . issued a completely new injunction.”

Int’l Ass’n of Machinists, 849 F.2d at 1486. Again, the history

of this case puts the merits fully before us.

2. Even viewed solely as a motion to dissolve, the case

calls for review of the Mattis policy’s constitutionality.

In any event, even if we were simply reviewing a motion

to dissolve, we still must resolve the constitutionality of the

Mattis policy. A “significant change” in circumstances is only

a “threshold” showing to dissolve an injunction. Salazar ex rel.

Salazar v. District of Columbia, 896 F.3d 489, 492 (D.C. Cir.

2018) (emphasis added) (citing Rufo v. Inmates of Suffolk Cnty.

Jail, 502 U.S. 367, 383 (1992)). Once that threshold is met, as

here, we must decide whether the change in circumstances

“renders continued enforcement” of the injunction “detrimental

to the public interest.” Petties ex rel. Martin v. District of

Columbia, 662 F.3d 564, 569 (D.C. Cir. 2011) (quoting Horne

v. Flores, 557 U.S. 433, 447 (2009)). To make this

determination, we “need[] to ascertain whether ongoing

enforcement of the original [preliminary injunction] [is]

supported by an ongoing violation of federal law.” Horne, 557

U.S. at 454 (emphasis added); but cf. Slip op. 18–19 (Wilkins,

J., concurring) (declining to address whether the Mattis policy

violated federal law). And we do that by assessing whether

constitutional “compliance has been achieved” by the Mattis

24

policy—that is, we decide whether the Mattis policy is

constitutional. Id. at 452 (citing Frew ex rel. Frew v. Hawkins,

540 U.S. 431, 442 (2004)).

Proceeding with that assessment is especially appropriate

where, as here, the district court moved well beyond “changed

circumstances” and directly ruled “[o]n the merits” of the

Mattis policy. See Doe II, 315 F. Supp. 3d at 497 (addressing

all the preliminary injunction factors: “the merits,” “irreparable

injury,” “the balance of equities,” and the “public interest”); see

also id. at 492 (ruling that “even if” the plaintiffs’ claims

against the 2017 Presidential Memorandum were “moot,” the

court would still enjoin implementation of the Mattis policy).

The panel decision quite properly reflects this aspect of the

record, citing the district court’s discussion of “the merits,” id.

at 497–98, cited in Panel Judgment *1 n.1, and “revers[ing],”

“[t]o the extent that the District Court granted preliminary relief

. . . apart from its refusal to dissolve the existing injunction,”

Panel Judgment *1 n.1 (emphasis added). Accordingly, I

proceed to the question of whether the injunction “was

supported by an ongoing violation of federal law.” Horne, 557

U.S. at 454.

B

More generally, “once jurisdiction is properly invoked

under § 1292(a)(1),” as it is here, our review permits

“disposition of all matters appropriately raised by the record,

including entry of final judgment.” Hartman v. Duffey, 19 F.3d

1459, 1464 (D.C. Cir. 1994) (quoting Wagner v. Taylor, 836

F.2d 578, 585 (D.C. Cir. 1987)). “This has long been the rule:

‘By the ordinary practice in equity . . . ,’ a reviewing court has

the power on appeal from an interlocutory order ‘to examine

the merits of the case . . . and upon deciding them in favor of

the defendant to dismiss the bill.” Munaf v. Geren, 553 U.S.

674, 691 (2008) (second alteration in original) (quoting N.

25

Carolina R. Co. v. Story, 268 U.S. 288, 292 (1925)); see also,

e.g., Ark. Dairy Co-op Ass’n v. U.S. Dep’t of Agriculture, 573

F.3d 815, 833 (D.C. Cir. 2009) (“Review of a preliminary

injunction ‘is not confined to the act of granting [or denying]

the injunctio[n], but extends as well to determining whether

there is any insuperable objection, in point of jurisdiction or

merits, to the maintenance of [the] bill, and if so, to direct a

final decree dismissing it.’” (alterations in original) (quoting

Munaf, 553 U.S. at 691)).

III

I turn now to the merits.

A

In our government of separate and coordinate powers, it is

a “basic principle” that “one branch of the Government may not

intrude upon the central prerogatives of another.” Loving v.

United States, 517 U.S. 748, 757 (1996). This restraint serves

an important purpose: it preserves the government of our

people’s design. Those who drafted and established our

Constitution did not dole out federal power haphazardly; rather,

to create “a National Government that is both effective and

accountable,” they painstakingly allocated “specific powers

and responsibilities” to the branches of government best “fitted

to the task.” Id.

To the branches “periodically subject to electoral

accountability,” Gilligan v. Morgan, 413 U.S. 1, 10 (1973),

went “authorities essential to the common defense,” The

Federalist No. 23, at 153 (Alexander Hamilton) (Clinton

Rossiter ed., 1961); see U.S. Const. art I, § 8, cl. 11 (declare

war); cl. 12 (raise and support armies); cl. 13 (provide and

maintain a navy); cl. 14 (make rules for the land and naval

forces); cl. 15 (provide for calling forth the militia); cl. 16

26

(provide for organizing the militia); art. II, § 2, cl. 1

(commander in chief). For good reason. It is “difficult to

conceive of an area of governmental activity in which the

courts have less competence.” Gilligan, 413 U.S. at 10. The

political branches are far better equipped (and more

accountable to the people) for making the types of decisions

that arise in the military setting—decisions that must be made

quickly and based on limited, often secret, information.

Our Constitution thus vests the “power of oversight and

control of military force” in Congress and the President. Id.

And it does so, as Hamilton put it,

without limitation, because it is impossible to foresee or

define the extent and variety of national exigencies, and

the correspond[ing] extent and variety of the means which

may be necessary to satisfy them. The circumstances that

endanger the safety of nations are infinite, and for this

reason no constitutional shackles can wisely be imposed

on the power to which the care of it is committed.

The Federalist No. 23, at 153 (emphasis in original). “The

later-added Bill of Rights,” of course, “limited this power to

some degree,” but “did not alter” the people’s basic

“allocation” of authority, Loving, 517 U.S. at 767 (citations

omitted); Congress and the President—not the courts—retained

the primary responsibility for the “delicate task of balancing the

rights of servicemen against the needs of the military,” id.

(quoting Solorio v. United States, 483 U.S. 435, 447–48

(1987)); see also, e.g., United States v. Eliason, 41 U.S. (16

Pet.) 291, 301 (1842) (“The power of the executive to establish

rules and regulations for the government of the army, is

undoubted.”).

Judges have long respected this allocation of powers.

Gilligan, 413 U.S. at 11. Thus, “courts traditionally have been

27

reluctant to intrude upon the authority of the Executive in

military and national security affairs,” Dep’t of Navy v. Egan,

484 U.S. 518, 530 (1988), and have “hesitate[d] long” before

tampering with the “unique structure of the military

establishment,” Chappell v. Wallace, 462 U.S. 296, 300 (1983).

In the military realm, citing separation of powers principles, the

Supreme Court has rejected numerous attacks on the

President’s authority, e.g., to define factors for imposition of

the death penalty in military trials, see Loving, 517 U.S. at 768–

69; to “control access to information bearing on national

security,” see Egan, 484 U.S. at 527; and to make

commissioning of officers dependent on “whatever facts [he]

thinks” relevant, see Orloff v. Willoughby, 345 U.S. 83, 91

(1953). The issues were, in the words of Loving, within with

the “central prerogative[]” of the executive, not the courts. 517

U.S. at 757; see also Orloff, 345 U.S. at 93 (“[J]udges are not

given the task of running the Army.”).

Even addressing laws or regulations that would be subject

to heightened scrutiny if applied to civilian society (as plaintiffs

assume for the Mattis policy, see Br. 29–32), our “review of

military regulations . . . is far more deferential,” Goldman v.

Weinberger, 475 U.S. 503, 507–08 (1986), and “the tests and

limitations to be applied may differ because of the military

context,” Rostker, 453 U.S. at 67.

Although the Supreme Court has eschewed a “label[],” id.

at 69, our standard of review reflects the separation of powers

principles detailed above, see id. at 67 (recognizing “that the

Constitution itself requires such deference”). Thus—even

when reviewing a facially discriminatory, gender-based

classification, such as an exclusion of women from draft

registration (see Rostker)—it is “quite wrong” and “palpably

exceed[s]” our authority to “undertak[e] an independent

evaluation of [] evidence, rather than adopting an appropriately

deferential examination” of the political branches’ “evaluation

28

of that evidence.” Id. at 81, 82–83; accord, e.g., Trump v.

Hawaii, 138 S. Ct. 2392, 2421–22 (2018) (declining in matters

of national security to “substitute” the Court’s own “predictive

judgments,” or its own “evaluation of the underlying facts,” for

those of the President); Goldman, 475 U.S. at 509.

Under these principles, I believe the Mattis policy survives

constitutional scrutiny.

B

To begin, plaintiffs do not—and cannot—seriously

challenge the Mattis policy’s reliance on gender dysphoria for

limiting the access of those suffering from that medical

condition to military service. They, after all, sought and the

district court ordered, see Second Am. Compl. 20, J.A. 209;

Doe II, 315 F. Supp. 3d at 480, 484, a return to the Carter

policy, which uses the same condition (a “history of gender

dysphoria”) to presumptively disqualify persons from

accession into the military, subject to some exceptions. Carter

Memo, attachment at 1, J.A. 588; cf. Mattis Memo 2, J.A. 264.

In any event, to the extent plaintiffs contend that the Mattis

policy’s focus on gender dysphoria springs from hostility to

transgender persons, this aspect of the policy is far from

suspect. Gender dysphoria affects “[o]nly a subset of” (or

“some”) “transgender people,” as even plaintiffs’ experts

repeatedly admit. Decl. of George Richard Brown in Support

of Opp’n to Defs.’ Mot. to Dismiss ¶ 9 (May 11, 2018), J.A.

839 (emphasis added); Decl. of Brad R. Carson in Support of

Pls.’ Mot. for Preliminary Injunction ¶ 23 (Aug. 28, 2017), J.A.

995 (emphasis added); accord, e.g., Carter Memo

Implementation Handbook 13, J.A. 520 (“some transgender

individuals”); DoD Report 19, J.A. 287 (“subset of transgender

persons”); id. at 20, J.A. 288 (“[n]ot all transgender people”

(alteration in original) (quoting American Psychiatric

29

Association)); RAND Report 7, J.A. 623 (“[s]ome transgender

individuals (again, the proportion is largely unknown)”); id. at

x, J.A. 606 (“transgender status alone does not constitute a

medical condition”; “only transgender individuals who

experience significant related distress are considered to have”

gender dysphoria); id. at 6, J.A. 622 (similar); AMA Br. 7

(similar).

Gender dysphoria is also a serious mental health condition

recognized by the American Psychiatric Association. It is

“associated with clinically significant distress or impairment in

social, occupational, or other important areas of functioning.”

DoD Report 13, J.A. 281 (quoting Am. Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Disorders 453

(5th ed. 2013)); accord, e.g., Geoffrey M. Reed et al., Disorders

Related to Sexuality and Gender Identity in the ICD-11, 15

World Psychiatry 205, 212 (2016), J.A. 934 (“distress and

dysfunction [are] integral aspects of the condition”); RAND

Report at 6, J.A. 622 (“significant related distress”); Report of

the Transgender Military Service Commission 10 (Mar. 2014),

J.A. 757 (“clinically significant distress”); AMA Br. 2 (same);

see also Carter Memo, attachment at 1, J.A. 588; Carter Memo

Implementation Handbook 12, J.A. 519. Untreated, it “can

cause debilitating distress, depression, impairment of function,

self-mutilation to alter one’s genital or secondary sex

characteristics, other self-injurious behaviors, and suicide.”

AMA Br. 9.

The limits on accession and retention of those with gender

dysphoria, imposed by the military (under both Secretaries

Carter and Mattis), are thus akin to the many demanding

selection practices that render the “vast majority” of military-

age Americans—a full 71%— presumptively ineligible. DoD

Report 6, J.A. 274; see DoD Instruction 6130.03: Medical

Standards for Appointment, Enlistment, or Induction Into the

Military Services (Mar. 30, 2018), J.A. 212 (providing 49 pages

30

of medical guidelines). This includes disqualification for

“[a]ny” DSM-recognized condition that (like gender dysphoria)

is associated with “residual symptoms, or medication side

effects, which impair social or occupational performance.”

DoD Report 34, J.A. 302; see, e.g., DoD Instruction 6130.03,

supra, at 44–46, J.A. 255–57 (disqualifying those with a

“[h]istory of learning disorders after the 14th birthday,” a

“[h]istory of obsessive-compulsive disorder,” or a “[r]epeated

inability to maintain reasonable adjustment in school”). In

presumptively disqualifying individuals with gender dysphoria,

the Mattis policy, like the Carter policy before it, serves the

same legitimate interests as other disqualifications: ensuring

that the armed forces consist “of qualified, effective, and able-

bodied persons.” 10 U.S.C. § 505(a).

C

Plaintiffs, therefore, hitch their wagon to a different star:

the accommodations (or lack thereof) for “gender transition.”

Gender transition, in their view, is “the defining

characteristic of being transgender.” Appellees’ Br. 20. As

plaintiffs see it, “transgender people,” “[b]y definition,” do not

“live in accord with their biological sex.” Id. at 19 (emphasis

added) (quoting Doe II, 315 F. Supp. 3d at 482). Rather,

“transgender people undergo a gender transition in order to live

consistently with their gender identity.” Id. As we’ll soon see,

the record thoroughly belies this claim.

Working from this premise, plaintiffs contend, and district

court agreed, that the Mattis policy “is a ban on transgender

service.” Id. (quoting Doe II, 315 F. Supp. 3d at 495 (quoting,

in turn, Pls.’ Opp’n to Mot. to Dismiss 10 (May 11, 2018), ECF

No. 130)). That is so, they say, because the Mattis policy,

unlike the Carter policy, does not accommodate gender

transition. Whereas the Carter policy allows individuals to

31

undergo a gender transition (ranging, as we have seen, from

purely “social” changes to complete transformational surgery)

and to then serve in their preferred gender (rather than their

biological sex), Carter Memo, attachment at 1–2, J.A. 588–89;

Carter Memo Implementation Handbook 43, J.A. 550, the

Mattis policy sticks to longstanding military practice: “all”

individuals must serve in their “biological sex.” Thus,

individuals who have undergone gender transition (to live

outside their biological sex) are ineligible, Mattis Memo 2–3,

J.A. 264–65 (unless they qualify for a waiver or the reliance

exception).

Plaintiffs’ argument that this policy difference is of

constitutional magnitude is fundamentally flawed—factually

and legally.

1. The facts relating to transition for transgender persons

and to the polices.

At oral argument, plaintiffs doubled down on their claim

that a failure to accommodate gender transition (and life outside

one’s biological sex) is, in effect, a ban on transgender service.

Their counsel’s first substantive words were as follows:

[The Mattis policy] bans transgender people from the

military, it bans only transgender people, and all

transgender people. [The Mattis policy] requires anyone

who serves to do so in their biological sex, [and] not living

in a person’s biological sex is the defining characteristic of

what it means to be transgender.

Oral Arg. Tr. 19:10–16.

That is wrong. By requiring most individuals to serve in

their biological sex, the Mattis policy does not “translate[] into

a ban on transgender persons.” Appellees’ Br. 20 (quoting Doe

II, 315 F. Supp. 3d at 494). This is so for at least three reasons.

32

First, the factual reality: As the panel found, there is

“nothing in the record” to support plaintiffs’ assertion that the

“defining” characteristic of being “transgender” is not living in

one’s biological sex. Panel Judgment *2. To the contrary,

“everything in the record, from the Elders Report, the RAND

Study, the Carter Memo and the Mattis Memo consistently

define a transgender person as a person who does not ‘identify’

with [his or her] biological sex.” Slip op. 11 (Wilkins, J.,

concurring) (emphasis added); see, e.g., DoD Report 7 n.10,

J.A. 275; RAND Report at x, J.A. 606; Report of the

Transgender Military Service Commission 5 (Mar. 2014), J.A.

752; Carter Memo Implementation Handbook 13, J.A. 520.

Even plaintiffs’ own expert, along with the American Medical

Association (in support of plaintiffs), define “transgender” in

terms of how one “identi[fies],” not how one lives. See Brown

2017 Decl. ¶ 13, J.A. 1056 (emphasis added); AMA Br. 3

(same).

There is, moreover, no doubt that many transgender

individuals can, do, and wish to serve in their biological sex.

Contrary to plaintiffs’ assertion, the transgender community is

not a monolith in which every person wants to take steps

necessary to live in accord with his or her preferred gender

(rather than his or her biological sex). Quite the opposite. The

implementation handbook for the Carter policy, for example,

explains that only “some” transgender individuals “feel

compelled” to “transition to the preferred gender.” Carter

Memo Implementation Handbook 13, J.A. 52. The Elders

Report adds that the “transgender community includes people”

who do not even “wish to transition.” Report of the

Transgender Military Service Commission 5, J.A. 752. And the

RAND Report specifies that only 55% of “transgender

individuals” reported “living” in their preferred gender; of the

remainder, only half—27% of the total—even “wished to

transition at some point in the future.” RAND Report 20 & n.2,

J.A. 636 & n.2. This leaves but one conclusion, as the military

33

has already found: transgender individuals can serve and are

“serving[] with distinction . . . [in] their biological sex.” Panel

Judgment *2 (quoting DoD Report 6, J.A. 274).

Second, the Mattis policy’s exceptions to the requirement

of service in one’s biological sex: Again, as the panel found,

the policy “contains a reliance exception,” Panel Judgment *2,

that expressly permits certain transgender individuals “to serve

in their preferred gender,” rather than their biological sex,

Mattis Memo 2, J.A. 264. This exception covers around 1000

individuals, see DoD Report 22, J.A. 290, so that even on the

false premise that transgender must be equated with transition,

the policy would not be a “ban” on “all transgender people.” It

was “clear error” for the district court to hold otherwise. Panel

Judgment *2. Moreover, the military reserves the authority—

as it does for virtually all standards, DoD Report 10, J.A. 278—

to issue waivers for persons who would otherwise be ineligible,

id. at 5, J.A. 273.

Third, the internal inconsistency in plaintiffs’ position:

Plaintiffs demand a return to the Carter policy. See Second

Am. Compl. 20, J.A. 209; Doe I, 275 F. Supp. 3d at 177. But

even that policy, plaintiffs admit, requires transgender persons

to serve in their biological sex until their gender transition is

“complete.” Appellees’ Br. 45; see Carter Memo

Implementation Handbook 11, J.A. 518. So, if “a requirement

to serve in one’s biological sex is a transgender ban,”

Appellees’ Br. 15, plaintiffs’ logic seems to doom the very

remedy they now seek.

To put it simply: The Mattis policy—by declining to make

the same accommodations for gender transition as the Carter

policy—does not translate into a “transgender ban.” See Panel

Judgment *2 (holding that the district court “clear[ly] err[ed]”

in “finding that the Mattis Plan was the equivalent of a blanket

ban on transgender service”). And no amount of discovery will

34

change “this fact.” But cf. Slip op. 20 n.* (Wilkins, J.,

concurring).

2. The executive branch relied on an abundance of

legitimate military concerns.

In reasoning about the policy issues it confronted, the

executive branch relied on an abundance—some might say a

superabundance—of concerns. Given the “biological

differences” between males and females, military “policy and

practice has long maintained a clear line between” the

biological sexes. DoD Report, 41, J.A. 309. The military, for

example, maintains separate berthing, bathroom, and shower

facilities, along with different sets of physical fitness, body fat,

uniform, and grooming standards, for biological males and

biological females, id.—as required (in part) by Congress, see

10 U.S.C. §§ 7419, 7420, 8431, 8432, 9419. The DoD Report

drafted at Secretary Mattis’s request found that these “clear

sex-differentiated lines” preserve unit cohesion by, among

things, protecting reasonable expectations of privacy, avoiding

unfairness (or perceptions thereof), ensuring physical safety,

and minimizing leadership challenges that would otherwise

arise. DoD Report 40, J.A. 308.

The Supreme Court has expressly acknowledged the

(rather widely shared) understanding of a key premise of the

military judgment: that, in the military setting, “[p]hysical

differences between men and women . . . are enduring: ‘[T]he

two sexes are not fungible[.]’” Virginia, 518 U.S. at 533

(quoting Ballard v. United States, 329 U.S. 187, 193 (1946)).

For that reason, “[s]ex classifications may be used[.]” Id. It is,

the Court has said, “undoubtedly . . . necessary to afford

members of each sex privacy from the other sex in living

arrangements” and to “adjust aspects of the physical training

programs” in light of the biological differences between males

and females. Id. at 550 n.19; see also Rostker, 453 U.S. at 81

35

(recognizing the need for “different treatment” of males and

females “with regard to dependency, hardship, and physical

standards”).

Unsurprisingly, then, plaintiffs “do not challenge the

military’s ability to maintain any of its sex-based standards,”

Appellees’ Br. 44; instead they try to work around it with a

linguistic device. They contend that “the military can maintain

sex-based standards” by applying to each service member the

standard (male or female) that happens to match his or her

“gender marker in [the military’s] personnel database.” Id. at

45 (citing Carter Memo Implementation Handbook 11, J.A.

518). But for transgender persons who have exercised the

asserted right to transition (whether socially, hormonally or

surgically), that “marker” would only randomly relate to the

physical differences between biological males and biological

females (as differentiated by “chromosomes, gonads,

hormones, and genitals,” DoD Report 7 n.10, J.A. 275). Those

physical differences, however, are what the military’s sex-

based standards are actually based upon. And they are what the

Supreme Court’s approval of those standards, quoted in the

paragraph immediately above, actually rested on.

Plaintiffs’ plan would demolish the military’s sex-based

standards. Under their view, individuals could switch genders

(and adjust their gender marker) by simply “living in the

preferred gender.” Carter Memo Implementation Handbook

31, J.A. 538. In other words, a person need not undergo any

“sex reassignment surgery,” id. at 50, J.A. 557, or even “cross-

sex hormone therapy,” id. at 37, J.A. 544, in order to be

recognized as, and thus subject to the standards associated with,

his or her “preferred gender,” id. at 43, J.A. 550. Instead, any

person who remained (for example) biologically male in every

respect could demand to be treated, in all respects, as female,

including for “medical fitness, physical fitness, uniform and

grooming, deployability and retention standards,” as well as for

36

assignment to “berthing, bathroom, and shower facilities.” Id.

at 43–44, J.A. 550–51.

Plaintiffs’ “approach[]” may be wise (or equitable).

Appellees’ Br. 24. But it in no way responds to the concerns

over unit cohesion, unit readiness, and related burdens relied on

by the executive:

Unit cohesion. Consider first service members’

“reasonable expectations of privacy.” DoD Report 37, J.A.

305. The military explained that “[g]iven the unique nature of

military service,” service members “of the same biological sex

are often required to live in extremely close proximity to one

another when sleeping, undressing, showering, and using the

bathroom.” Id. In these circumstances, permitting an

individual with (for example) “male genitalia” to live, sleep,

and shower with biological females would surely, as the

military concluded, create some tension within the ranks—as

even the Carter Memo Implementation Handbook admits, see

pp. 63–64, J.A. 570–71 (explaining that biological females may

be “uncomfortable”); see also id. at 29, J.A. 536 (discussing

“privacy” concerns about “showers, bathrooms, or other shared

spaces”). And while reasonable people might disagree, cf. id.

at 65, J.A. 572 (ruling that biological females’ “lack of

comfort” must give way to more egalitarian concerns), the

executive branch “was certainly entitled, in the exercise of its

constitutional powers . . . , to focus on the question of military

need rather than ‘equity,’” Rostker, 453 U.S. at 80; cf. Virginia,

518 U.S. at 550 n.19 (recognizing that it is “necessary to afford

members of each sex privacy from the other sex in living

arrangements”).

The military’s privacy concerns are grounded in—and

partially mandated by—statute. The military is statutorily

required to physically separate “males” and “females” in

various contexts. See 10 U.S.C. §§ 7419, 7420, 8431, 8432,

37

94194; see also id. § 9420 (“same sex”).5 Plaintiffs have not

challenged—or even mentioned—those provisions. Thus we

must examine plaintiffs’ constitutional objections with these

unchallenged “restrictions firmly in mind.” Rostker, 453 U.S.

at 77; see also Schlesinger v. Ballard, 419 U.S. 498, 508 (1975).

The very “existence” of the “restrictions clearly indicates” a

legitimate basis for the policy’s bright-line separation of

biological males and biological females, Rostker, 453 U.S. at

77—i.e., compliance with a congressional directive, see DoD

Report 29 & n.108, 37, J.A. 297, 305. We must interpret

statutory words “consistent with their ‘ordinary meaning . . . at

the time Congress enacted the statute.’” Wisconsin Central Ltd.

v. United States, 138 S. Ct. 2067, 2070 (2018) (alteration in

original) (quoting Perrin v. United States, 444 U.S. 37, 42

(1979)). And at the time Congress enacted the privacy statutes

at issue here—in 1998—there can be little doubt what “male”

and “female” meant in ordinary parlance. See Pub. L. No. 105-

261, §§ 521, 522, 112 Stat. 1920, 2009–13 (1998). Those

words plainly referred to—and thus required separation of

individuals on the basis of—biological sex, not preferred

gender.6 See, e.g., Webster’s Third New International

4

Consider, for example, § 7419: “The Secretary of the Army shall

provide for housing male recruits and female recruits separately and

securely from each other during basic training.” 10 U.S.C.

§ 7419(a)(1) (emphasis added).

5

Sections 7419, 7420, 8431, 8432, 9419, and 9420 were previously

sections 4319, 4320, 6931, 6932, 9319, and 9320, respectively. See

Pub. L. No. 115-232, §§ 806(a)(3), 807(c)(1), 808(c)(1), 132 Stat.

1636, 1832, 1836, 1839 (2018) (renumbering).

6

The same is true for 10 U.S.C. § 9420, which, in certain

circumstances, prohibits training personnel from accessing the living

quarters of recruits unless they are of the “same sex.” “As a matter

of ordinary usage, the term ‘sex,’” like the terms male or female,

“does not mean . . . ‘transgender status.’” Wittmer v. Phillips 66 Co.,

38

Dictionary 1366 (unabr. ed. 1993) (defining “male” in terms of

“being the sex” that “perform[s] the fertilization function”);

The American Heritage Dictionary 759 (2d coll. ed. 1985) (“the

sex that has organs to produce spermatozoa”); The

Randomhouse College Dictionary 809 (rev. ed. 1980) (“the sex

that begets young by fertilizing the female”); see also Black’s

Law Dictionary 1379 (7th ed. 1999) (defining “sex” in terms of

the “structure[s] and function[s] that distinguish a male from a

female organism”).

Safety. The military explained that “combat remains a

physical endeavor.” DoD Report 37, J.A. 305. So, naturally,

“vigorous competition, especially physical competition,”

remains “central to the military life and is indispensable to the

training and preparation of warriors.” Id. at 36, J.A. 304. But

in such “physically violent training and competition,” the

military concluded, “pitting biological females against

biological males who identify as female, and vice versa”—as

plaintiffs demand, see, e.g., Appellees’ Br. 45 (demanding

treatment in preferred gender “for all purposes”)—would create

a “serious safety risk.” DoD Report 36, J.A. 304. That is a risk

that the military is not constitutionally required to accept (or

force upon its members). See Virginia, 518 U.S. at 550 n.19

(recognizing that it is “necessary” to “adjust aspects of the

physical training programs” for biological males and biological

females).

Unfairness or the perception thereof also provides a

legitimate basis for the Mattis policy—and easily falls within

our precedent. The military concluded that it “could be

915 F.3d 328, 333 (5th Cir. 2019) (Ho, J., concurring). “In common,

ordinary usage, . . . the word ‘sex’ means biologically male or

female[.]” Id. at 333–34 (quoting Hively v. Ivy Tech Community

Coll. of Indiana, 853 F.3d 339, 363 (7th Cir. 2017) (Sykes, J.,

dissenting)).

39

perceived as discriminatory to apply different biologically-

based standards to persons of the same biological sex based on

gender identity, which is irrelevant to standards grounded in

physical biology.” DoD Report 36, J.A. 304. “For example, it

unfairly discriminates against biological males who identify as

male and are held to male standards to allow biological males

who identify as female to be held to female standards,

especially where the transgender female retains many of the

biological characteristics and capabilities of a male.” Id. It

would also “result in perceived unfairness by biological

females who identify as female” and would “be required to

compete against” biological males who identify as female “in

training and athletic competition.” Id.

In the military’s view, plaintiffs’ demands would pit the

interests of transgender service members against the interests

of a potentially vast array of other service members who will

be placed in an awkward, potentially unfair, and possibly

bitterness-inducing posture of having to compete against those

who are either far stronger or weaker than they are. It may turn

out that these worries are overblown. Or it may be that wisdom

counsels running the risks in order to accommodate transgender

service members’ preferences. But to pretend that the military

cannot rationally be concerned about this novel source of

potential social conflict, resentment, and intra-unit strife is

untenable. The concern is at least reasonable, and the courts

cannot second-guess the military’s decision.

Indeed, if, as we’ve previously held, the military could

refuse to exempt certain religious males from male uniform

standards, so as to avoid “incurring resentment from those who

are compelled to adhere to the rules strictly,” Goldman v. Sec’y

of Defense, 734 F.2d 1531, 1540 (D.C. Cir. 1984), aff’d sub

nom. Goldman v. Weinberger, 475 U.S. 503, then surely the

military could, for the same reason, refuse to exempt certain

biological males from male dress standards (not to mention

40

body composition assessments and physical readiness testing),

DoD Report 31, J.A. 299. After all, the ability to express one’s

“religious . . . identity,” Goldman, 475 U.S. at 517 (Brennan,

J., dissenting), is surely no less protected than the ability to

express one’s “gender identity,” Appellees’ Br. 21; cf. U.S.

Const. amend. I.

Unit readiness. Gender transition is available under the

Carter policy only as a treatment for gender dysphoria. See,

e.g., Carter Memo Implementation Handbook 11, 14, J.A. 518,

521; Carter Memo Implementation Handbook: Navy

Supplement 2, J.A. 461; see also Appellees’ Br. 19, 41, 42

(referring to transition as “treatment”). The military concluded

here that accommodating requests for transition would “present

a significant challenge for unit readiness.” DoD Report 35, J.A.

303. As its report noted, “there is considerable scientific

uncertainty concerning whether” gender transition treatments

(e.g., sex reassignment surgery) “fully remedy . . . the mental

health problems associated with gender dysphoria.” Id. at 32,

J.A. 300; see, e.g., id. at 24, J.A. 292 (reporting the conclusion

of the Centers for Medicare and Medicaid Services “that there

was ‘not enough high quality evidence to determine whether

gender reassignment surgery improves health outcomes for

Medicare beneficiaries with gender dysphoria’”); RAND

Report 10, J.A. 626 (“[I]t is important to note that none of these

studies [on gender-transition related healthcare] were

randomized controlled trials (the gold standard for determining

treatment efficacy). In the absence of quality randomized trial

evidence, it is difficult to fully assess the outcomes of treatment

for [gender dysphoria].”). Those mental health problems, if un-

remedied, are substantial: Gender dysphoria is undisputedly

associated with “clinically significant distress,” e.g., Decl. of

George Richard Brown in Support of Plaintiffs ¶ 8 (May 11,

2018), J.A. 838; Report of the Transgender Military Service

Commission 10 (Mar. 2014), J.A. 757; AMA Br. 2; see also

Appellees’ Br. 19 (noting the “distress”), and can cause

41

“depression, impairment of function, self-mutilation to alter

one’s genital or secondary sex characteristics, other self-

injurious behaviors, and suicide,” AMA Br. 9. Any

“persistence of these problems is,” as the military reasonably

concluded, “a risk for readiness.” DoD Report 32, J.A. 300.

The military’s decision to “proceed cautiously” was thus

reasonable. Id. at 27, J.A. 295. We cannot, after all, “substitute

our own assessment for the Executive’s predictive judgments”

on matters of “national security.” Hawaii, 138 S. Ct. at 2421.

Administrative burdens. Such burdens are “not for this

Court to dismiss.” Rostker, 453 U.S. at 81 (upholding gender-

based classification where “Congress simply did not consider

it worth the added [administrative] burdens of including

women in draft and registration plans”). As the military

recognized, the “unique leadership challenges arising from

gender transition are evident in the [] handbook implementing

the Carter policy.” DoD Report 38, J.A. 306. This 71-page

handbook—actually touted by plaintiffs and the district court

as evidence of the Carter policy’s feasibility, see, e.g., Doe 2 v.

Mattis, 344 F. Supp. 3d 16, 28–29 (D.D.C. 2018); Decl. of

Deborah Lee James in Support of Pls.’ Mot. for Preliminary

Injunction ¶ 34 (Aug. 29, 2017), J.A. 1008–09—provides

guidance on “some of the issues” that commanders will face

under the Carter policy. Carter Memo Implementation

Handbook 8, J.A. 515. Consider one example—a simple swim

test, required semi-annually throughout the military: “[A]

female to male transgender Service member who has fully

transitioned, but did not undergo surgical change, would like to

wear a male swimsuit for the test with no shirt or other top

coverage.” Id. at 63, J.A. 570. The commanding officer has

much to do. First, consult the handbook for his options:

“counsel the individual,” “address the unit,” and consider

“additional options (e.g., requiring all personnel to wear

shirts).” Id. But the handbook is not “directive in nature”; it

provides only a “general discussion.” Id. at 48, J.A. 555. So,

42

the commander is “reminded” to also “consult with [his] Chain

of Command, . . . Service, and DoD guidelines before

determining the best course(s) of action.” Id. And, as always,

he should “[c]onsult with [the] SCCC [the Service Central

Coordination Cell],” id. at 63, J.A. 570; accord id. 48, J.A.

555—a service-level “cell of experts created to provide multi-

disciplinary (e.g., medical, legal) advice and assistance to

commanders with regard to service by transgender Service

members,” id. at 12, J.A. 519. And this is only a swim test.

A multitude of similar puzzles—e.g., issues concerning

showers (“Scenario 11”), sleeping (“Scenario 15”), and social

events (“Scenario 16”)—would call on the commander to re-

consult the handbook, his “Chain of Command, SCCC,

Service, and DoD guidelines before determining the best

course(s) of action.” Id. at 48, J.A. 555; see id. at 60–65, J.A.

567–72. If the commander found time for military issues—

after, say, adjusting the “timing” of the shower facilities to

avoid any conflicts and ensuring that each “shower stall[]”

contains “curtains” and “clothing hooks,” id. at 60–61, J.A.

567–68—then matters become “more complicated” still, id. at

69, J.A. 576. Consider deployments. Because “[s]ome nations

view transgender people as culturally unacceptable and will not

recognize [an] individual’s preferred gender,” the commander

must “[c]onduct a thorough analysis of the” destination country

by reviewing “the U.S. State Department’s country specific

website” and the “DoD Foreign Clearance Guide”—as well as,

of course, “discuss[ing] the situation with [his] chain of

command and the SCCC.” Id. After that, the commander must

also ensure that any “male” who happened to “have female

anatomical characteristics” was “screened for pregnancy.” Id.

at 51, J.A. 558. But there’s a wrinkle: Because the Carter policy

provided and plaintiffs demand that a person’s “gender marker

in DOD’s personnel database” line up with his or her preferred

gender (as opposed to biological sex), see Appellees’ Br. 45,

the commander must remember (because it’s not recorded in

43

the system) which of his “male” subordinates “maintained

female anatomy,” see Carter Memo Implementation Handbook

51, J.A. 558.

Whether these accommodations are “worth the added

burdens” or not is “not for this Court to” say. Rostker, 453 U.S.

at 81. It is for the executive.

3. We assess plaintiffs’ empirical attacks on the military’s

justifications with extreme deference.

Plaintiffs lob empirical attacks at the military’s

justifications. They contend that the justifications are mere ipse

dixit, with no “indication” or “data” in the record to support

them, and are “contrary” to both “expert” testimony and “the

consensus of the medical community.” Appellees’ Br. at 42.

But when the Supreme Court instructed that we in the judiciary

“must be particularly careful not to substitute . . . our own

evaluation of evidence for a reasonable evaluation by” the

political branches, it meant it. Rostker, 453 U.S. at 68. Given

the military’s reasonable evaluations, recounted above, the

Court has written off arguments like plaintiffs’ as “quite beside

the point.” Goldman, 475 U.S. at 509.

Take the military’s decision, citing unit cohesion issues, to

apply different dress regulations to biological males and

biological females, without exception. In Goldman, a plaintiff

attacked comparable dress standards, arguing, as plaintiffs do

here, that the military’s justifications for them were “mere ipse

dixit, with no support from actual experience or a scientific

study in the record, and [were] contradicted by expert

testimony.” 475 U.S. at 509. The Court, however, would have

none of it. Even though the regulations would have been

subject to heightened scrutiny if a government had sought to

apply them in the civilian world, see id. at 506 (citing Sherbert

v. Verner, 374 U.S. 398, 406 (1963)), the Court simply held that

44

the “desirability of dress regulations in the military [was]

decided by the appropriate military officials,” who were “under

no constitutional mandate to abandon their considered

professional judgment,” id. at 509. So too here.

Or consider the military’s decision to presumptively

disqualify individuals who have undergone gender transition,

citing “scientific uncertainty.” DoD Report 32, J.A. 300. The

military directly acknowledged plaintiffs’ argument—that the

“prevailing judgment of mental health practitioners is that

gender dysphoria can be treated with [] transition-related

care”—but explained that none of the relevant “studies account

for the added stress of military life, deployments, and combat.”

Id. at 24, J.A. 292. I recognize, of course, that a service member

who has surgically transitioned to his or her preferred gender

does not present many of the anomalies and confusions

applicable to social or hormonal transition. But as I’ve already

mentioned, the studies leave uncertainty even for civilian life,

and the military could reasonably rest on special characteristics

of military life. As in Rostker, a court would “palpably

exceed[] its authority” if it “ignored” this “considered

response.” 453 U.S. at 81.

D

Given the “healthy deference” that we owe the political

branches “in the area of military affairs,” Rostker, 453 U.S. at

66, plaintiffs look elsewhere to support their claim—namely, to

Twitter. As did the district court, they write off the entire

Mattis policy (along with the extensive supporting study) as

fruit of the poisonous tweet. As plaintiffs and the district court

see it, “unusual factors” supposedly surrounding the

President’s July 2017 tweet continue to taint all that has

happened since (and, evidently, even the Mattis memo of June

30, 2017, which predated the President’s intervention). The

“post hoc processes and rationales,” they assert, “appear to

45

have been constrained by, and not truly independent from, the

President’s initial policy decisions.” Appellees’ Br. 26

(quoting Doe II, 315 F. Supp. 3d at 497). In fact, it’s hard to

discern anything especially “unusual” in the process.

1. The executive change of policy was not unusual.

What of the circumstances supposedly surrounding the

“President’s initial policy decisions”—the July-August 2017

tweet and memorandum? Appellees’ Br. 26 (quoting Doe II,

315 F. Supp. 3d at 497). As the district court saw it, the “2017

Presidential directives” represented “an abrupt reversal in

policy” announced without “formality” (never defined by the

court) and contrary to the conclusions of the military itself. See

Doe II, 315 F. Supp. 3d at 497; see also Doe I, 275 F. Supp. 3d

212–13. Not exactly.

First, President Trump’s July-August 2017 directives

came a month after, and were consistent with, Secretary

Mattis’s prior memorandum. Compare Memorandum from

Secretary Mattis, to Secretaries of Military Departments (June

30, 2017), J.A. 425 (delaying implementation of Secretary

Carter’s policy change in order to have “additional time to

evaluate more carefully the impact”), with 2017 Presidential

Memorandum, 82 Fed. Reg. at 41,319 (Aug. 25, 2017)

(delaying implementation of Secretary Carter’s “policy

change” and, among other things, calling for “further study”).

What formality was lacking? After Chairman Dunford of the

Joint Chiefs made clear that a tweet was an inadequate ground

for action, see Memorandum from Chairman Dunford to Chiefs

of Military Services (July 27, 2017), J.A. 408, the President

issued a formal memorandum, published in the Federal

Register. See Nat’l Inst. of Military Justice v. U.S. Dep’t of

Defense, 512 F.3d 677, 692 (D.C. Cir. 2008) (Tatel, J.,

dissenting) (Instructions “published in the Federal Register

would be ‘formal.’”).

46

Second, even if the “2017 Presidential directives”

“abrupt[ly]” reversed the policy of the prior administration and

were issued without “formality,” Doe II, 315 F. Supp. 3d at

497, “there’s nothing unusual about a new” administration

“coming to office inclined to favor a different policy direction,

. . . disagreeing with staff, or cutting through red tape,” In re

Dep’t of Commerce, 139 S. Ct. 16, 17 (2018) (Gorsuch, J.,

concurring in part, dissenting in part); cf. Motor Vehicle Mfrs.

Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 59 (1983) (Rehnquist, J., concurring in part, dissenting in

part) (“A change in administration brought about by the people

casting their votes is a perfectly reasonable basis for an

executive agency’s reappraisal of the costs and benefits of its

programs and regulations.”); Elena Kagan, Presidential

Administration, 114 Harv. L. Rev. 2245, 2378 (2001) (“[N]ew

administrative interpretations following new presidential

elections should provide a reason to think deference

appropriate rather than the opposite.”).

2. The military need not be independent of the President.

Consider next plaintiffs’ contention, accepted by the

district court, that “[d]eference to military decisionmaking . . .

depends on the actual exercise of independent military

judgment.” Appellees’ Br. 32; accord, e.g., 322 F. Supp. 3d at

100–01; Doe II, 315 F. Supp. 3d at 497; Doe I, 275 F. Supp. 3d

214. Accordingly, plaintiffs and the district court argue,

“deference does not apply here” because the Mattis policy did

not result from a process that was “‘truly independent’” of the

“‘President’s initial policy decisions.’” Appellees’ Br. 32

(quoting Doe II, 315 F. Supp. 3d at 497).

Forget the rhetorical disregard of the true sequence of

events. The “Constitution itself requires” deference to the

military choices of the political branches. Rostker, 453 U.S. at

67; see, e.g., U.S. Const. art. II, § 1, cl. 1. This includes

47

deference to the judgments of military officials—not because

of their expertise—but because “the military authorities have

been charged by the” constitutionally responsible branches—

that is, “the Executive and Legislative Branches”—“with

carrying out our Nation’s military policy.” Goldman, 475 U.S.

at 507–08.

Plaintiffs’ implication that military policies are suspect

unless they are (somehow) “independent” of the views of the

Commander in Chief, Appellees’ Br. 32; Doe II, 315 F. Supp.

3d at 497, verges on weird. We did, after all, rest our claim to

national independence in part on anathematizing George III’s

attempts to “render the Military independent of and superior to

the Civil Power.” The Declaration of Independence para. 14

(U.S. 1776) (emphasis added). And we endeavored in our

Constitution to make sure that such independence was never

exercised again. See, e.g., U.S. Const. art. II, § 2, cl. 1. That is

why “decisions as to the composition, training, equipping, and

control of a military force are . . . subject always to civilian

control of the Legislative and Executive Branches.” Gilligan,

413 U.S. at 10 (second emphasis added). “It is this power of

oversight and control of military force by elected

representatives and officials which underlies our entire

constitutional system.” Id. (emphasis added).

In any case, the record belies plaintiffs’ claim that the

Mattis policy and the supporting study were “constrained by

. . . the President’s initial policy decisions.” Appellees’ Br. 26

(quoting Doe II, 315 F. Supp. 3d at 497). Consider the events

following Secretary Mattis’s initial order to delay effectiveness

of the Carter plan and the President’s later tweet:

The President himself called for a comprehensive study:

“The Secretary of Defense . . . may advise me at any time,

in writing, that a change to [the pre-Carter] policy is

48

warranted.” 2017 Presidential Memorandum, 82 Fed.

Reg. at 41,319.

Secretary Mattis ordered a comprehensive study: “The

Panel and designated support personnel shall bring a

comprehensive, holistic, and objective approach to study

military service by transgender individuals, focusing on

military readiness, lethality, and unit cohesion, with due

regard for budgetary constraints and consistent with

applicable law.” Memorandum from Secretary Mattis to

Secretaries of Military Departments 2 (Sept. 14, 2017),

J.A. 404.

The Department of Defense understood the panel of

experts that Secretary Mattis convened to have conducted

a comprehensive study: “To fulfill its mandate, the Panel

addressed three questions:” (i) “Should the Department of

Defense access transgender individuals?” (ii) “Should the

Department allow transgender individuals to transition

gender while serving, and if so, what treatment should be

authorized?” (iii) “How should the Department address

transgender individuals who are currently serving?” DoD

Report 18, J.A. 286 (emphasis added).

The Department’s report and recommendations were, in

fact, comprehensive—and contrary to the President’s

initial policy decisions: Whereas the President’s July-

August 2017 directives called for “generally prohibit[ing]

openly transgender individuals” from serving, 2017

Presidential Memorandum, 82 Fed. Reg. at 41,319, the

Department “conclude[d] that transgender persons should

not be disqualified from service solely on account of their

transgender status,” DoD Report 19, J.A. 287.

When transmitting the proposed policy to the President,

Secretary Mattis confirmed that the review was

49

independent: “I charged the Panel to provide its best

military advise, based on increasing the lethality and

readiness of America’s armed forces, without regard to any

external factors.” Mattis Memo 1, J.A. 263.

In the same transmittal, Secretary Mattis asked the

President to “revoke” his initial policy directives: “I []

respectfully recommend that you revoke your

memorandum of August 25, 2017, regarding Military

Service by Transgender Individuals, thus allowing me . . .

to implement appropriate policies concerning military

service by transgender persons.” Mattis Memo 3, J.A. 265.

The President acknowledged Secretary Mattis’s

“independent judgment,” and “revoke[d]” his initial

policy decisions: “I hereby revoke my memorandum of

August 25, 2017, ‘Military Service by Transgender

Individuals,’ and any other directives I may have made

with respect to military service by transgender

individuals. . . . The Secretary of Defense . . . may

exercise [his] authority to implement any appropriate

policies concerning military service by transgender

individuals.” 83 Fed. Reg. at 13,367.

Especially given Secretary Mattis’s initial call for a “review”

of “all relevant considerations” a month before the President

tweeted anything, see Memorandum from Secretary Mattis to

Secretaries of Military Departments (June 30, 2017), J.A.

425—this is hardly a fait accompli by tweet, much less a coup

d’état, oxymoronic as that would be in context.

3. Our review of military decision-making is limited.

Plaintiffs and the district court may, to be sure, regard the

entire decisionmaking record as a Potemkin village, designed

to pull the wool over the eyes of simple-minded observers

50

(including reviewing courts). Of course the plausibility of such

a scheme tends to unravel as we try to imagine the dozens of

participants—the “Cabinet members and other officials,”

Hawaii, 138 S. Ct. at 2405—who would have been needed for

its realization.

But apart from implausibility, plaintiffs’ approach rests on

a fundamental misunderstanding of the nature of our review. In

Trump v. Hawaii, the Supreme Court addressed an executive

order that had been preceded by presidential tweets that the

dissenters characterized as “expressing animus toward Islam,”

138 S. Ct. at 2435 (Sotomayor, J., dissenting); accord id. at

2433 (Breyer, J., dissenting), a claim never directly refuted by

the majority. Refusing to see the issue as “whether to denounce

the statements,” and rejecting the exhortation to “probe the

sincerity of the stated justifications for the policy by reference

to extrinsic statements,” the Court saw its task as being to

“consider not only the statements of a particular President, but

also the authority of the Presidency itself.” 138 S. Ct. at 2418

(majority opinion). Although it might be permissible to

“consider plaintiffs’ extrinsic evidence” (in Hawaii, the

government conceded this point), the Court made clear that

courts must nevertheless “uphold the [challenged] policy so

long as it can reasonably be understood to result from a

justification independent of unconstitutional grounds.” Id. at

2420. And for all the reasons discussed above, the Mattis

policy can easily be understood to have arisen out of perfectly

legitimate considerations.

This “narrow standard of review ‘has particular force’”

where, as here, the case “overlap[s] with ‘the area of national

security.’” Id. at 2419 (quoting Kerry v. Din, 135 S. Ct. 2128,

2140 (2015) (Kennedy, J., concurring)). The Hawaii Court

offered two justifications for this standard of review—both of

which readily apply here. “For one, ‘[j]udicial inquiry into the

national-security realm raises concerns for the separation of

51

powers’ by intruding on the President’s constitutional

responsibilities[.]” Id. (alteration in original) (quoting Ziglar v.

Abbasi, 137 S. Ct. 1843, 1861 (2017)); see Gilligan, 413 U.S.

at 10–11. “For another, ‘when it comes to collecting evidence

and drawing inferences’ on questions of national security, ‘the

lack of competence on the part of the courts is marked.’”

Hawaii, 138 S. Ct. at 2419 (quoting Holder v. Humanitarian

Law Project, 561 U.S. 1, 34 (2010)). For both reasons, our

review into matters of “national security is highly constrained.”

Id. at 2420; see also id. at 2420 n.5 (rejecting a “more free-

ranging inquiry” in the “national security” context).

This highly deferential approach is evident in the Court’s

review—and affirmance—of two facially discriminatory,

gender-based classifications that would unquestionably have

fallen had any government attempted to apply them in the

civilian world. In Schlesinger the Court upheld a statute

entitling male and female Navy lieutenants to different periods

of tenure, 419 U.S. at 499–500—that is, a statue “premised

solely upon” a “[s]uspect” classification, id. at 511 (Brennan,

J., dissenting). Although the dissent focused (at length) on

what “in fact” was “behind” Congress’s decision, id. at 520, the

majority made quick work of the challenge, looking, instead, to

what “Congress may . . . quite rationally have believed,” id. at

508 (majority opinion) (emphasis added). This was not a

searching inquiry. See id. at 511 (Brennan, J., dissenting)

(“[T]he Court goes far to conjure up a legislative purpose which

may have underlain the gender-based distinction here

attacked.”). Rather, the majority’s approach was one grounded

in—and thus constrained by—a proper understanding of the

separation of powers. See id. at 510–11 (majority opinion)

(discussing U.S. Const. art. I, § 8, cls. 12–14; art. II, § 2, cl. 1).

Rostker—upholding a statutory exclusion of females from

draft registration—pursued a similarly constrained analysis.

As in Schlesinger, the dissenting justices homed in on what

52

they thought “Congress itself [had] concluded.” Rostker, 453

U.S. at 83 (White, J., dissenting); see also, e.g., id. at 106–07

(Marshall, J., dissenting) (finding “nothing in the Senate

Report” to support the majority’s representation of what

“Congress believed”). Yet, again, the majority declined to

embark on a searching inquiry of congressional motives.

Rather, invoking Schlesinger, see 453 U.S. at 70 (majority

opinion) (describing it as “perhaps” the “best instance[]” of

proper “reconciliation between the deference due Congress”

and the Court’s own duty), the Court simply identified

conclusions or facts in the record that justified Congress’s

policy choice—the whole time scrupulously resisting the urge

to substitute its own “evaluation of evidence” for that of

Congress, id. at 68.

In the words of Hawaii, the Court upheld these policies

because they could “reasonably be understood to result from a

justification independent of unconstitutional grounds,” 138 S.

Ct. at 2420—as could the Mattis policy.

E

Confronted with Hawaii, Goldman, Rostker, and

Schlesinger, plaintiffs contend that “heightened scrutiny”

nevertheless applies. Appellees’ Br. 32; accord, e.g., Doe I,

275 F. Supp. 3d at 211 (applying “heightened scrutiny”). This

is so, they claim, because the Mattis policy “facially”

discriminates against a “suspect” class (i.e., transgender

persons).7 See, e.g., Appellees’ Br. 16. But (1) the Mattis

policy is facially neutral, and (2) it would not trigger heightened

scrutiny even if it were not.

7

For the reasons below we need not decide whether transgender

persons are members of a suspect class.

53

The Mattis policy, like the Carter policy before it, turns not

on transgender status, but on a medical condition called gender

dysphoria. See Mattis Memo 2–3, J.A. 264–65; Carter Memo,

attachment at 1, J.A. 588. In fact, the Mattis policy expressly

provides that “[t]ransgender 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.” Mattis Memo 3, J.A. 265 (emphasis added).

Plaintiffs, of course, object to the requirement that all must

serve in their biological sex. That is central to their claim. See

Oral Arg. Tr. 19:12–16 (arguing that the Mattis policy “requires

anyone who serves to do so in their biological sex,” but that

“not living in a person’s biological sex is the defining

characteristic of what it means to be transgender”). But the

requirement is nevertheless facially neutral; “all” means “all.”

Transgender or non-transgender; gender dysphoria or non-

gender dysphoria; “all” service members must serve “in their

biological sex.” Mattis Memo 3, J.A. 265. This can’t be

facially discriminatory as to transgender persons; military

officials need not know an individual’s transgender status in

order to enforce the policy—knowledge of physical

characteristics unrelated to gender preference is both necessary

and sufficient. Cf. Crandall v. Paralyzed Veterans of Am., 146

F.3d 894, 897 (D.C. Cir. 1998) (observing that an employer

can’t discriminate on the basis of a disability without an actual

“awareness of the disability itself”).

To be sure, plaintiffs (wrongly) maintain that the

biological-based sex standards operate as a complete ban on

transgender persons. Panel Judgment *2 (This is “clear

error.”). But the effect of these standards on transgender

persons (Slip op. 20 n.* (Wilkins, J., concurring)) is no different

from that of a regulation barring headgear (and thus yarmulkes)

on Orthodox Jews. See Goldman, 475 U.S. at 514 (Brennan,

J., dissenting) (“It sets up an almost absolute bar to the

54

fulfillment of a religious duty.”). Even if both policies require

“suppressi[on] [of] the characteristic that defines [a person’s]

identity,” Appellees’ Br. 21—be it “transgender identity,” id.,

or “religious . . . identity,” Goldman, 475 U.S. at 517 (Brennan,

J., dissenting)—the magnitude of the impact does nothing to

transform a facially neutral policy into a facially discriminatory

one, see id. at 510 (majority opinion) (describing the headgear

policy as “reasonabl[e]” and “evenhanded[]” “even though [its]

effect is to restrict . . . [expression] required by [] religious

beliefs”); id. at 513 (Stevens, J., concurring) (agreeing that the

headgear policy is “neutral, completely objective”).

Plaintiffs, nevertheless, maintain that the Mattis policy is

invalid because it “hinges on a person’s transgender status; it

subjects transgender people—and only transgender people—to

a ‘special additional exclusionary rule.’” Appellees’ Br. 20

(quoting Doe II, 315 F. Supp. 3d at 497); accord, e.g., Stockman

v. Trump, 331 F. Supp. 3d 990, 999–1000 (C.D. Cal. 2018),

appeal docketed, No. 18-56539 (9th Cir. Nov. 16, 2018),

stayed, No. 18A627, 2019 WL 271946 (U.S. Jan. 22, 2019),

and cert. before judgment denied, No. 18-678, 2019 WL

272027 (U.S. Jan. 22, 2019). The argument (it seems) proceeds

as follows: Whereas both transgender and “non-transgender

people can experience gender dysphoria,” Report of the

Transgender Military Service Commission 24 n.31, J.A. 771

(emphasis added); accord DoD Report 20 n.57, J.A. 288, the

Mattis policy presumptively disqualifies only “[t]ransgender

persons with a history or diagnosis of gender dysphoria,”

Appellees’ Br. 20 (quoting Mattis Memo 2, J.A. 264).

But in reality non-transgender people with gender

dysphoria are no better off than their transgender compatriots

in terms of rules for accession and retention. And this would

be true even if the Mattis policy on gender dysphoria were

applied only to transgender persons, as plaintiffs claim, but the

record appears to bely. See DoD Report 42, J.A. 310

55

(describing the Mattis policy’s gender dysphoria

disqualification in terms of all “persons”). Non-transgender

individuals who develop gender dysphoria do so as a

consequence of grievous injuries or diseases, see DoD Report

20 n.57, J.A. 288 (citing Report of the Transgender Military

Service Commission 24 n.31, J.A. 771), that are themselves

presumptively disqualifying. The only examples in the record

involve horrific testicular wounds or mastectomies because of

cancer. But, absent waiver, no individual—transgender or

not—may join the military with a history of such conditions.

See DoD Instruction 6130.03: Medical Standards for

Appointment, Enlistment, or Induction into the Military

Services 25 (May 6, 2018), J.A. 236 (disqualifying those

without testicles); id. at 46, J.A. 257 (same for those with

history of malignancy). And if an individual were already in

the military when he or she began experiencing gender

dysphoria, then—again, regardless of transgender status—that

individual could “be retained” so long as he or she did “not

require a change of gender and remain[ed] deployable within

applicable retention standards.” Mattis Memo 2, J.A. 26. There

is thus no daylight between the opportunities available to

transgender individuals with gender dysphoria and non-

transgender individuals with gender dysphoria.

And even if there were a difference—suppose there were,

theoretically, a non-transgender person who suffered from

gender dysphoria and who was eligible to serve without

waiver—plaintiffs’ attack on the Mattis policy would still be

untenable. Plaintiffs cannot have their cake and eat it, too: they

cannot seek to invalidate the Mattis policy on the basis that it

“subjects transgender people—and only transgender people—

to a ‘special additional exclusionary rule,’” Appellees’ Br. 20,

while, at the same time, seeking a remedy (a return to the Carter

policy, see Second Am. Compl. 20, J.A. 209) that runs afoul of

precisely the principle they invoke against the Mattis policy: it

too subjects “transgender” people—and only “transgender”

56

people—to a special additional exclusionary rule, see Carter

Memo 1, J.A. 585 (“This DTM [Directive-type Memorandum]:

Establishes policy . . . for the standards for retention, accession

. . . for transgender personnel[.]”). Cf. United States v.

Bethlehem Steel Corp., 446 F.2d 652, 661 (2d Cir. 1971)

(rejecting objection to one remedy where party didn’t object to

a different remedy that was “logically . . . subject to the same

[alleged] defect”).

Further, the context refutes plaintiffs’ inference of biased

intent. To the extent that Secretary Mattis addressed

“transgender persons” (as opposed to all persons), this focus

seems more a sign of bureaucratic orderliness than animus.

Recall that Secretary Carter first commissioned studies

regarding service by “transgender Service members” and,

ultimately, established a new policy for service by “transgender

personnel.” See Memorandum from Secretary Carter to

Secretaries of Military Departments (July 28, 2015), J.A. 709;

Carter Memo, J.A. 585. It is only natural that his successor

would follow suit.

In addition, there appear to be genuine bureaucratic

imperatives that swayed Secretary Carter as much as Secretary

Mattis. For example, it seems quite rational to handle on a case-

by-case basis (rather than with a formal policy) the evidently

rare instances in which non-transgender persons develop

gender dysphoria. The examples in the record seem in their

nature to call for case-specific treatment—grievous battlefield

injuries (i.e., “genital wounds”) and drastic surgeries (i.e.,

“mastectom[ies] because of breast cancer”). DoD Report 20

n.57, J.A. 288. To handle these on an individualized basis

seems more a matter of common sense than animus.

In any case, even if the Mattis policy were facially

discriminatory, this fact would not compel a different result.

The policy disputed in Rostker, after all, “was not facially

57

neutral,” as counsel for plaintiffs conceded. See Oral Arg. Tr.

26:16–20 (conceding that “Rostker wasn’t” facially neutral).

Nor is plaintiffs’ comparison to Frontiero v. Richardson, 411

U.S. 677 (1973) (plurality opinion), apt. See Appellees’ Br. 33.

As we have explained, the only reason that the Court applied

heightened scrutiny to the disputed congressional rules on

military fringe benefits was because, unlike here, the

challenged policies “never purported to be a congressional

judgment on a uniquely military matter.” Goldman, 734 F.2d

at 1537.

Here, as in Rostker, the Mattis policy’s classifications are

“not invidious, but rather realistically reflect[] the fact that the

sexes are not similarly situated.” Rostker, 453 U.S. at 79. To

say, for example, that a biological male (who identifies as

female) is similarly situated to a biological female is, to put it

courteously, a “gesture[] of superficial equality.” Id. Whatever

the arguments for such a gesture, it is not constitutionally

required in the military context. Rostker, 453 U.S. at 79.

And while some transgender individuals (an exceedingly

small percentage) undergo sex-reassignment surgery, which

might, in some instances, closely align a person’s biological sex

to his preferred gender, the fact is that an anatomical male from

birth is simply not the same as an anatomical male from

surgery: one has undergone a rare medical intervention; the

other has not. The military may legitimately decide that the

two are “not similarly situated,” Rostker, 453 U.S. at 78, and

the executive branch is under no constitutional obligation to roll

the dice, hoping—against its own considered assessment of the

evidence, see, e.g., DoD Report 24, J.A. 292; id. at 32, J.A.

300—that the efficacy of such surgeries will reliably withstand

the rigors of combat. Hawaii, 138 S. Ct. at 2421 (“[W]e cannot

substitute our own assessment for the Executive’s predictive

judgments on” matters of “national security.”).

58

IV

What I have said thus far is enough to reverse the decision

of the district court and dissolve the preliminary injunction.

Having reached this point, a court of appeals would typically

end its review; with the injunction dissolved, the case would

then proceed in the district court. (Under my approach, the

district court would, of course, be constrained by this court’s

analysis of the merits.)

But there are occasions where it is appropriate to proceed

further and “definitively decid[e] the merits.” U.S. Ass’n of

Reptile Keepers, Inc. v. Zinke, 852 F.3d 1131, 1134–35 (D.C.

Cir. 2017) (emphasis added). This is one of them. As I said at

the outset, see supra Part II.B, “once jurisdiction is properly

invoked under [28 U.S.C.] § 1292(a)(1),” we may “‘dispos[e]

of all matters appropriately raised by the record, including entry

of final judgment.’” Hartman, 19 F.3d at 1464 (quoting

Wagner, 836 F.2d at 585); accord, e.g., Munaf, 553 U.S. at 691

(“[A] reviewing court has the power on appeal from an

interlocutory order ‘to examine the merits of the case . . . and

upon deciding them in favor of the defendant to dismiss the

bill.’” (second alteration in original) (quoting Story, 268 U.S.

at 292)).

The present case implicates sensitive separation of powers

concerns—all in the context of military preparedness. See, e.g.,

Munaf, 553 U.S. at 692 (resolving the merits and dismissing the

case, which had arisen “in the context of ongoing military

operations”); see also Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 584–85 (1952) (resolving the merits on appeal

from stay of preliminary injunction). And, for the reasons

discussed above, the government “is entitled to judgment as a

matter of law.” Munaf, 553 U.S. at 692. The district court’s

finding that “some factual issues are in dispute,” Slip op. 19

(Wilkins, J., concurring), does not warrant a different

59

conclusion. As explained above, those “facts”—“about the

process leading up to the development of the Mattis [policy],”

322 F. Supp. 3d at 100; see also Doe II, 315 F. Supp. 3d at

497—are irrelevant to the judicial analysis of military

personnel policy dictated by Supreme Court authority, see

supra Part III.D.3. Nor does any “confusion” concerning the

Mattis policy’s “requirements” for service in accordance with

the standards applicable to one’s “biological sex,” Slip op. 20

(Wilkins, J., concurring), call for further discovery. It’s hard to

imagine how more detail on that subject could have any impact

on plaintiff

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