Untangling the Issues in the “Transgender in the Military” Litigation

A few weeks ago, the Department of Justice made something of a splash by filing petitions for certiorari “before judgment” in three of the pending cases challenging then-Secretary of Defense Mattis’s new policy regarding transgender service-members, Nos. 18-676, 677 & 678.  In each of the cases a district court preliminarily enjoined the policy and DOJ appealed.  One of those cases, Karnoski v. Trump, was argued before the U.S. Court of Appeals for the Ninth Circuit on October 10.  A second, Doe v. Mattis, was argued before the U.S. Court of Appeals for the D.C. Circuit on December 10.  And in the third case, Stockman v. Trump, briefing has not yet commenced and the court of appeals has ordered that the case be “held in abeyance pending issuance of the court’s mandate in Karnoski,” which will presumably control the outcome in Stockman, as well.

On Friday, the D.C. Circuit panel in Doe (consisting of Judges Griffith, Wilkins and Williams) held that the district court should have dissolved its injunction, issued in 2017, because of a subsequent change in circumstances—namely, Secretary Mattis’s revised policy, which he promulgated in February 2018.  The court of appeals concluded that the District Court’s refusal to reconsider its injunction was based upon “an erroneous finding that the [2018] Mattis Plan was the equivalent of [the earlier] blanket ban on transgender service.”  The panel explained:  “Although the Mattis Plan continues to bar many transgender persons from joining or serving in the military, the record indicates that the Plan allows some transgender persons barred under the military’s standards prior to the Carter Policy to join and serve in the military.”  The court of appeals also strongly hinted, without conclusively holding, that the new Mattis plan is likely to survive Fifth Amendment scrutiny in light of the deference that courts ordinarily afford to military judgments.

Presumably, then, the Doe case will now proceed to the merits in the district court and the predicate for the government’s petition to the Supreme Court in that case no longer exists.  The “universal” injunctions in the two Ninth Circuit cases remain operative, however, and the Court is scheduled to discuss the petitions in those cases at its conference this Friday.  In the wake of the Jane Doe decision, the government has “respectfully request[ed]” the Supreme Court to “grant the government’s petitions in Karnoski and Stockman and hold the government’s petition and stay application in Doe to account for the possibility that the Doe respondents may seek en banc review in the D.C. Circuit.  In the alternative, the Court should stay the injunctions in Karnoski and Stockman in their entirety.  At a minimum, the Court should stay the nationwide scope of those injunctions, such that each injunction bars the implementation of the Mattis policy only as to the individual respondents in each case.”

The government is asking the Supreme Court to intercede in the two Ninth Circuit cases now so that the Court can resolve the merits of the DOD policy this Term.  Why the rush?

DOJ argues that the Obama-era transgender policy that the trial court injunctions have left in place, which former Secretary Ash Carter promulgated in 2016, poses a grave risk to “military effectiveness and lethality”—that the armed services must be permitted to exclude more transgender service-members now in order to be “in the strongest position to protect the American people, to fight and win America’s wars, and to ensure the survival and success of our Service members around the world.”  This is therefore the sort of rare case of high exigency, the petitions insist, that warrants the Court taking the extraordinary step of circumventing the ordinary course of litigation—and acting even before the court of appeals has reviewed the injunctions.  By way of analogy the government cites the landmark precedents of (I kid you not) the Steel Seizure case, the Nixon tapes case, and the Dames & Moore case challenging President Carter’s freeze of Iranian assets during the hostage crisis.

I’d be surprised if the Supreme Court grants the petitions before judgment—in part because the Chief Justice appears committed to making this a relatively low-drama Term; and in part because Friday’s D.C. Circuit decision demonstrates that the fate of the Mattis policy in the lower courts is anything but certain; but more importantly because it’s simply implausible that the immediate exclusion of a handful of transitioned transgender service-members from entering the military, and/or preventing a small number of current service-members from beginning transition, is necessary to enable the armed forces to “fight and win America’s wars, and to ensure the survival and success of our Service members around the world.”  The Court might or might not ultimately defer to Secretary Mattis’s judgment when it adjudicates the merits, but I doubt it will be eager to credit—to give credence to—such hyperbole.

It’s more likely the Court will simply grant cert. in the regular course if and when a court of appeals upholds an injunction, hear the case next Term, and issue a decision some time in 2020.  The government probably realizes as much.  I suspect, therefore, that the government filed these unusual petitions primarily to set the stage for its effort to alter the status quo between now and the time (e.g., early 2020) when the Court finally resolves the merits of the cases.   Those efforts are reflected in stay motions that the government filed in the Supreme Court in December (here, for example, is the motion for a stay in Kanowski). As DOJ wrote in footnote 6 of its Karnoski petition:

Should the Court decline to grant certiorari before judgment, such stays would at least allow the military to implement the Mattis policy in whole or in part while litigation proceeds through the Court’s 2019 Term.  Either way, whether through certiorari before judgment or stays of the injunctions, what is of paramount importance is permitting the Secretary of Defense to implement the policy that, in his judgment after consultation with experts, best serves the military’s interests.

For the reasons stated above, I’d be somewhat surprised if the Court issues such a stay of the injunctions:  It’s fairly evident that implementation of the Carter policy has not caused the sky to fall or grievously impacted military readiness.  Indeed, as explained below, because the Mattis policy by its terms would not affect transgender people already in the military who have been diagnosed with gender dysphoria, the principal immediate impact of the injunctions is simply to allow a handful of people who have already successfully completed gender transition to join the armed forces.  The idea that that the addition of this small number of transitioned individuals–a tiny percentage of the transgender persons in the armed forces–would profoundly affect military readiness and effectiveness simply isn’t plausible, even if the Court pays great deference to the Secretary of Defense.

Whether I’m right about that or not, however, the impending stay motions, rather than the petitions before judgment, are probably where the real action is for now.

* * * *

My primary purpose in writing this post, however, is not to predict what the Court will do with the pending petitions and motions for stays, but instead to highlight some interesting ways in which DOJ has recently tried to frame the merits of the case, and, more broadly, to unpack just what’s at stake in these challenges, i.e., to clarify the differences between the Mattis and Carter policies.

Naturally, the Solicitor General emphasizes what he describes as the profound differences between the Carter and Mattis policies—he is, after all, requesting extraordinary relief in order to quash the Carter policy.  Nevertheless, his recent filings stress that in two important respects the Carter and Mattis policies are allegedly similar to one another:

First, under both policies, the petitions note, current service-members diagnosed with gender dysphoria, as well as transgender service-members without such a diagnosis, must continue to “serve in their biological sex” rather than “in their preferred sex.”  (These are the government’s infelicitous terms.  As explained below, what the government means by them is that although such service-members can serve as “openly” transgender in the sense that they can identify as such, they must abide by the grooming, uniform and use-of-facilities rules for the sex they were assigned at birth.)

Second, DOJ argues that therefore both policies, Carter’s and Mattis’s, discriminate primarily on the basis of whether an individual suffers from gender dysphoria or has transitioned rather than on whether the person is transgender.  Here’s the key, striking passage from page 7 of the Karnoski petition:

Like the Carter policy, the Mattis policy holds that “transgender persons should not be disqualified from service solely on account of their transgender status” [citing the Mattis policy at page 149a of the petition].  And like the Carter policy, the Mattis policy draws distinctions on the basis of a medical condition (gender dysphoria) and related treatment (gender transition).  Id. at 207a-208a.  Under the Mattis policy—as under the Carter policy—transgender individuals without a history of gender dysphoria would be required to serve in their biological sex, whereas individuals with a history of gender dysphoria would be presumptively disqualified from service.  Ibid.  The two policies differ in their exceptions to that disqualification.

The D.C. Circuit panel decision on Friday in effect agreed with this latter contention:  “Although the Mattis Plan continues to bar many transgender persons from joining or serving in the military,” the panel explained, “the record indicates that the Plan allows some transgender persons barred under the military’s standards prior to the Carter Policy to join and serve in the military.”

The idea that the Trump/Mattis policy does not discriminate on the basis of transgender status might be a bit startling to those who haven’t been carefully following the developments in the case.  After all, in his initial memorandum (see pp. 99a-100a of the Karnoski petition), 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.”  Yet it’s true, at least as a formal matter, that the Mattis policy (see pp. 207a-208aof the Karnoski petition) does not make distinctions based upon transgender status, as such, let alone implement a transgender “ban”—which is why, after receiving Secretary Mattis’s proposal, President Trump revoked his previous order that would have required such discrimination (see pp. 210a-211a).

That (nominal) about-face in the government’s formal ground of distinction is no accident.  The principal reason DOD and DOJ made the move—in effect, to argue that Secretary Mattis has not in fact drawn distinctions along the “transgender” line that President Trump directed—is not merely to try to get some mileage out of the notion that “Obama did it, too,” but also to argue that if the existing Carter policy is not subject to heightened scrutiny under the so-called equal protection component of the Fifth Amendment (which the plaintiffs concede), then the Mattis policy shouldn’t be subject to such heightened scrutiny, either, given that it’s predicated on similar grounds of discrimination (albeit resulting in far harsher consequences).

In this post I’ll try to pull apart these claims, with hopes that I might explain exactly what the Carter and Mattis policies do, and what their similarities and differences are—something I suspect many observers, and judges, might not yet fully understand.

A cautionary note at the outset:  Some of the details of the policies remain somewhat oblique or ambiguous, and I’m not 100% certain I’ve gotten it all right.  I welcome corrections and suggestions, and I’ll amend the post if and when I think it’d be helpful.

* * * *

In order to understand how the two policies (Carter’s and Mattis’s) operate, it’s necessary to clarify two sets of distinctions: (i) between military “accession” and “retention,” and (ii) between transgender status, gender dysphoria, and gender “transition.”

Access/Retention

This one’s fairly easy, at least in terms of identifying the categories.  Both of the DOD policies—Carter’s and Mattis’s—have different rules for “accession” and “retention.”  The accession rules are those that establish certain grounds for being disqualified from entering (“accessing”) the armed services.  By contrast, the “retention” rules prescribe grounds for discharging persons who are already serving in the military–conditions they must meet in order to remain in service.

Transgender status/Gender Dysphoria/Gender transition

This is a bit trickier, both because there’s less consensus on some parameters or meanings of the categories.

1. A person is not “transgender” merely because he or she defies or rejects traditional sex stereotypes or roles in any way, or because the person has any particular sexual orientation. Transgender people may identify as straight, gay, lesbian, bisexual, etc.  The most common use of “transgender” is, instead, and in the words of the American Psychiatric Association, to describe “individuals whose gender identity (inner sense of gender)”—such as a deeply felt, inherent sense of being a boy, a man, or male; a girl, a woman, or female; or an alternative gender (e.g., genderqueer, gender nonconforming, gender neutral)—“differs from the sex or gender to which they were assigned at birth.”[1]  For what it’s worth, this appears to be what even the Trump DOD and DOJ mean by the term, too—transgender individuals are those “who identify with a gender different from their biological sex” is the way they (unfortunately and somewhat imprecisely) put it in their briefs.[2]

2. “Gender dysphoria” is a medical term the APA adopted in 2013 in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”). According to DSM-5, gender dysphoria in adolescents and adults is “[a] marked incongruence between one’s experience/expressed gender and assigned gender, of at least 6 months’ duration, as manifested by at least two of the following” six things:

1. A marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics (or in young adolescents, the anticipated secondary sex characteristics).

2. A strong desire to be rid of one’s primary and/or secondary sex characteristics.

3. A strong desire for the primary and/or secondary sex characteristics of the other gender.

4. A strong desire to be of the other gender (or some alternative gender different from one’s assigned gender).

5. A strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender).

6. A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one’s assigned gender).

Now, you might look at that list of six things and assume that all transgender persons must also have gender dysphoria.  After all, surely anyone with a longstanding, deeply felt, inherent sense of being a gender different from the sex to which they were assigned at birth will manifest at least two, and probably more, of the six listed characteristics.

Not so fast, say DOD and DOJ.  Persons with gender dysphoria, they insist, are merely a “subset” of all persons who are transgender (see p.204a)—and, because the Mattis policy turns (at least in part) on dysphoria, not transgender status, it means that “transgender persons [would] not [be] … disqualified from service solely on account of their transgender status” under the Mattis policy (p.149a).

DOD’s purported distinction between the two terms derives from the sentence in the DSM-5 that immediately follows the definition listed above.  The DSM-5 observes that gender dysphoria “is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning” (emphasis added).  The government reads this sentence to imply that “clinically significant distress or impairment” is a necessary component of what it means to be diagnosed with gender dysphoria, and DOD further assumes that not all persons who have “[a] marked incongruence between one’s experience/expressed gender and assigned gender, of at least 6 months’ duration, as manifested by at least two of the [six listed characteristics]” also suffer such “significant distress or impairment.”  The Mattis view, in other words, is that some transgender persons don’t suffer “significant distress or impairment” and therefore don’t have gender dysphoria.

Surely that’s right in at least a limited sense because some transgender persons who have successfully transitioned to their identified gender no longer suffer significant distress or impairment.  That would explain why the APA itself insists that “not all transgender people suffer from gender dysphoria and that distinction is important to keep in mind.”

As I explain below, however, the Mattis policy would categorically exclude from military service all such persons who have successfully transitioned to their experienced gender.  Therefore that can’t be the basis of the distinction (i.e., between transgender and dysphoria) upon which the government purports to place so much weight.  The DOD/DOJ view, instead, is that certain transgender persons who haven’t transitioned do not suffer significant distress or impairment and therefore don’t suffer dysphoria—and thus also aren’t categorically excluded from service under the Mattis policy, which is based on distinctions involving dysphoria and transition, not transgender status as such.

Many observers, including some of the plaintiffs and their counsel, might well be dubious about this purported distinction:  They might reasonably think that transgender persons who otherwise satisfy two or more of the six DSM-5 “dysphoria” criteria listed above must surely suffer significant distress or impairment if they haven’t transitioned or, at the very least, that the difference between the two categories must be vanishingly small.  On this view, even if there are some exceptional souls who don’t suffer significant distress or impairment when they’re effectively forced to live “as” the sex to which they were assigned at birth despite “a strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender,” they must comprise, at most, a tiny percentage of transgender individuals.  And if the Mattis policy would not categorically exclude this (hypothetical) tiny “subset” of transgender persons from military service, well, then, it would still be the closest possible thing to a pure “transgender ban” as one could conjure without technically crossing that line.

DOD disagrees:  It insists that a meaningful number of transgender persons do not suffer from gender dysphoria—and the DSM-5 appears to support that view, explaining that the discrepancy between the two categories is the “core component” of the gender dysphoria diagnosis.  In addition to a “marked incongruence” between experienced and birth-assigned gender, says the DSM-5, “[t]here must also be evidence of distress about this incongruence.”

Perhaps more importantly, even if there is, in fact, a strong correspondence between transgender persons and persons who are suffering the stress necessary to constitute gender dysphoria–in other words, even if virtually all non-transitioned transgender persons do suffer from dysphoria–DOD points to the fact that most transgender persons serving in the military do not obtain a diagnosis of gender dysphoria and therefore do not, even under the existing Obama/Carter policy (see below), seek to transition while they serve in the armed forces, in which case they cannot serve “as” their experienced gender even under the Carter policy (i.e., they must abide by the grooming, uniform and facilities rules for the sex they were assigned at birth).  According to DOD, of the approximate 8980 current service-members who identify as transgender, only 937 active duty members, i.e., fewer than 15 percent, received a medical diagnosis of gender dysphoria between June 30, 2016 (when Carter issued his directive) and February 2018.

DOD insists that this distinction makes a difference because allegedly the Mattis policy “only” imposes restraints that differ from the Carter policy with respect to transgender persons with diagnoses of dysphoria (or who have already transitioned—see below), and not with respect to transgender persons who have neither transitioned nor suffer from dysphoria.  Transgender persons in the latter category, DOD insists, are not categorically banned from serving under the 2018 Mattis policy, as they would have been if Mattis had simply implemented Trump’s tweet.

3. OK, but even if transgender status is materially different from gender dysphoria, parts of the Mattis policy turn instead not on whether a person suffers from (or has been diagnosed with) dysphoria but instead on whether he or she has transitioned or is engaged in the process of transition.

Everyone agrees that that is certainly a different criterion than transgender status itself—that those who have transitioned or are transitioning are a subset of all transgender persons.

Gender transition is the process of alleviating the significant distress or impairment of gender dysphoria by taking steps to align a person’s body and/or social behavior with the person’s gender identity.  There are at least three principal forms of transitioning:  (i) “social” transition, i.e., helping the person live and work “as” his or her identified gender without medical or surgical treatment; (ii) “medical” transition, which typically consists of aligning secondary sex characteristics with the person’s identified gender using hormone therapy and hair removal or addition; and (iii) “surgical” transition, or gender confirmation surgery, including genital reconstruction surgery, which seeks to make the person’s primary and secondary sex characteristics resemble as closely as possible those commonly associated with the person’s identified gender.

* * * *

With those distinctions now established, let’s take a look at the specifics of how the current Carter policy (see Karnoski petition at 86a-95a and DOD Instruction 1300.28) operates and how the enjoined Mattis policy (see Karnoski petition at 207a-208a) would operate differently.  I’ll review the accession and retention rules in turn.

Accession

The currently governing Carter policy identifies three relevant grounds for disqualification from entering military service, each of which is subject to an exception:

(1) An applicant’s history of gender dysphoria is disqualifying, unless, as certified by a licensed medical provider, the applicant has been stable without clinically significant distress or impairment in social, occupational, or other important areas of functioning for 18 months.

(2) An applicant’s history of medical treatment associated with gender transition is also disqualifying, unless, as certified by a licensed medical provider:

(a) the applicant has completed all medical treatment associated with the applicant’s gender transition; and

(b) the applicant has been stable in the preferred gender for 18 months; and

(c) if the applicant is presently receiving cross-sex hormone therapy post-gender transition, the individual has been stable on such hormones for 18 months.

(3) An applicant’s history of sex reassignment or genital reconstruction surgery is also disqualifying, unless, as certified by a licensed medical provider:

(a) a period of 18 months has elapsed since the date of the most recent of any such surgery; and

(b) no functional limitations or complications persist, and no additional surgery is required.

Under the Mattis accession standards, by contrast, individuals are categorically ineligible to join the armed forces if any or all of the following three things are true:

(i) they’ve had a history or diagnosis of gender dysphoria anytime in the past three years; or 

(ii) the’ve ever undergone gender transitionor 

(iii) they’re unwilling or unable to serve “in their biological sex.”  (More below on what this last term means.)

There are thus clear differences between the two policies when it comes to accession.  For example, under the Mattis policy, all persons who are suffering from gender dysphoria or who have suffered from it within the preceding three years would be barred from joining the military.  Under the Carter policy, a person who’s had dysphoria could join if he or she “has been stable without clinically significant distress or impairment in social, occupational, or other important areas of functioning for 18 months.”

The most dramatic difference, however, is that under the current Carter policy persons who have completed gender transition can access into the armed forces if (to simplify a bit) the transition has been successful and the applicant has been “stable in the preferred gender” for at least 18 months.  In sharp contrast, the Mattis policy would categorically prohibit accession of anyone who’s ever undergone gender transition, full stop, no matter how successful that transition has been or how long ago the person transitioned.

Retention

Turning now to the retention policies—those that govern persons already enlisted in the armed forces—there’s some uncertainty right at the outset because it’s not clear who, exactly, would be subject to the Mattis rules.  For the sake of clarity, I’ll distinguish how those rules appear to apply to three different categories of enlisted service-members.

1. Let’s start with service-members who have already received a diagnosis of gender dysphoria from a military medical provider before the date the Mattis policy goes into effect (i.e., the date, if ever, when all of the injunctions are stayed or lifted) and who have continued to serve and receive treatment pursuant to the Carter policy.  Implementation of the Mattis policy shouldn’t affect this group of enlistees at all, at least in theory, because Mattis has created a “grandfathering,” or “reliance,” exception for such service-members, one that would allow them to continue to benefit from the Carter policy rules, described below.  According to DOD, “[t]he reasonable expectation of these Service members that the Department would honor their service on the terms that then existed [when they entered or continued in service] cannot be dismissed.”

2. Next, what about future enlistees—transgender persons who join the armed forces after the Mattis policy takes effect?  Well, as explained above, this might be a very limited set of individuals:  Under the Mattis policy, persons who have transitioned, or who have gender dysphoria, or who have had gender dysphoria anytime in the preceding three years, will not be permitted to access into the military at all—and that access prohibition presumably covers a significant percentage of all prospective transgender applicants.

Some transgender people, however, might join the military under the Mattis policy—those who haven’t suffered dysphoria for three years and who haven’t transitioned, as well as those who don’t realize they’re transgender until after they join.  These persons would be subject to the same retention rules as the third group, described below.

3. The third category of persons subject to the Mattis retention policy would be transgender service-members who joined the armed forces before the Mattis policy went into effect but who hadn’t yet received a military, medical diagnosis of gender dysphoria as of that date (including, perhaps, some persons who transitioned successfully before joining the military).  This describes, for example, one of the plaintiffs in the Karnoski case in the Ninth Circuit (Jane Doe) and one of the plaintiffs in the Doe case in the D.C. Circuit (Jane Doe No. 6).  I do not have a good sense of how large this category might be.  I doubt it would be very large, however.  It’s fair to assume, I think, that the vast majority of current service-members who wish to transition while in service–and to act in accord with the uniform, grooming and facilities rules applicable to their experienced gender–will have already obtained a diagnosis of gender dysphoria (thereby placing them in the “exempted” category 1, above), because they know that their opportunity to transition might be cut off at any moment if the injunctions are stayed and the Mattis policy goes into effect before they’ve obtained such a diagnosis.  (Of course this doesn’t mean that the number would be zero: Presumably some current service-members would only make the significant decision to transition after the Mattis policy goes into effect.)

* * * *

Now that we’ve identified the transgender service-members who might be subject to the Mattis retention policy—those in the second and third categories described above—we can compare how the Carter and Mattis policies, respectively, would treat persons in this discrete category of enlistees.

There’s one enormous, fundamental difference.  Under the Carter policy, if and when such service-members, as well as all other transgender service-members, receive “a diagnosis from a military medical provider indicating that gender transition is medically necessary,” they may take steps (e.g., by hormone treatments and/or surgery) to transition to their preferred gender while serving—indeed, the Department of Defense subsidizes the medical care and treatment for their diagnosed medical condition.

Under the Mattis policy, by contrast, a service-member may not, while serving, seek to undergo gender transition at all—social, medical or surgical.  If she does, she must leave the military.

In light of such a fundamental difference, what’s the similarity between the two policies that DOJ is now trying to emphasize?  It’s simply this:  Under both policies, the default rule is that if an enlisted transgender service-member has not yet fully transitioned (or has no plans to do so), the military will continue to assign that person a gender “marker” in the Defense Enrollment Eligibility Reporting System (DEERS) corresponding to his or her birth-assigned sex (what DOD calls the “biological” sex), and the member therefore must, at least presumptively, continue to conform to “standards for uniforms and grooming” for enlistees of that sex, and to use “berthing, bathroom, and shower facilities, associated with that gender,” at least during periods while he or she is stationed within the armed forces.

The point DOJ and DOD wish to exploit, in other words, is that both policies, Carter and Mattis, require at least some transgender service-members to comply with what the Mattis policy calls (p.199a) “standards associated with their biological sex” with respect to uniforms and grooming, and the use of sex-designated facilities, at least some of the time.  In a recent filing, DOJ now also emphasizes that under both policies, Carter and Mattis, “transgender individuals may serve openly, so long as they meet applicable standards [for grooming, uniforms and facilities], including standards associated with their biological sex.”

I believe DOJ is right that the two retention policies do have these discrete characteristics in common.  Even with respect to those similarities, however, the policies differ in at least two very significant respects.

First, even during the period in which a service-member is engaged in transitioning, the Carter policy affords the service-member’s commander discretion to “accommodate” the individual’s standards for uniforms and grooming, and to make adjustments respecting the use of berthing, bathroom, and shower facilities, as well (see Subsections 3.2(d)(1)(d)-(e)); see also Carter policy “Implementation Handbook” at 28 (“Exceptions for uniform and grooming standards may be considered per your Service’s policy.  You may consider current and preferred gender uniforms, form, fit and/or function, the Service member’s professional military image, as well as impact on unit cohesion and good order and discipline.”).  Under the Mattis policy, by contrast, the service-member would never be permitted to use the uniforms and grooming of his or her chosen sex, or to use or live in corresponding facilities.  (Therefore although such persons could serve “openly” as transgender in the limited sense that they’d be permitted to acknowledge that they’re transgender, they would permanently be precluded from adhering to the uniform, grooming and facilities rules applicable to their identified gender.)

Second, and more fundamentally, those prohibitions in the Mattis policy would, of course, be permanent, for the entire tenure of the person’s service in the military, whereas under the current Carter policy, by contrast, a service-member can work toward transition and will be assigned a new gender “marker” upon completion of that transition, at the latest—along with the corresponding changes in terms of uniforms, grooming, and use of facilities.[3]

With these distinctions in mind, we can now assess what appears to be an important disagreement between the parties in their recent Supreme Court filings.  In their response to the government’s cert. petition, the Doe plaintiffs write (p.11) that the Carter Policy “extends … to all transgender servicemembers” the permission “to serve in accord with their ‘preferred gender.’”  In the reply brief he filed on Friday, the Solicitor General takes sharp issue with that claim:  “Contrary to respondents’ assertion,” he contends (p.10 n.1), “the Carter policy does not permit ‘all transgender servicemembers’ to serve in their preferred gender.  Rather, the Carter policy permits only individuals with gender dysphoria who have undergone gender transition to do so; by contrast, transgender servicemembers without gender dysphoria or who have not transitioned must serve in their biological sex.”

The government is correct insofar as the Carter policy does not authorize all transgender service-members to serve “in” their preferred gender at all times they are serving.  Nevertheless, the whole purpose of the Carter policy retention rules is to facilitate the ability of any and all transgender service-members to transition, and to serve in accord with their gender identity, if and when they feel it is necessary to do so in order to prevent distress associated with not living in accord with that identity.  To be sure, the Carter policy sets out an orderly process for accomplishing that end—and in particular, it requires a diagnosis of gender dysphoria before any accommodations begin.  My understanding, however, is that virtually any person who has made the very difficult and consequential decision to transition (especially while serving in the military) will only do so when they suffer the sort of distress that supports such a diagnosis.  In such a case, the Carter policy—but not the Mattis policy—allows (indeed, facilitates) that person to transition so as to be able to live (and serve) in accord with their gender identity.  And, as noted above, the Carter policy encourages commanders to accommodate transgender service-members even during the transition process with respect to uniforms, grooming and use of facilities.

* * * *

I hope this discussion has helped clarify at least some of the confusion surrounding these cases.  Before signing off, I thought I would add a few brief reflections on the merits of the constitutional challenges.

Transition.  Let’s begin with the stark difference between the two policies when it comes to gender transition:  The Mattis accession policy would categorically exclude all persons who have successfully transitioned from entering the military, and the Mattis retention policy would prohibit current service-members from transitioning while serving.

This disparate treatment on the basis of “transitioning” is a form of discrimination on the basis of sex.  To see why that’s so, assume, for instance, two persons, each of whom identifies as a man, but only one of whom has transitioned to that condition—the other is a cisgender person who’s identified as male from birth.  The government would afford radically different treatment to these two individuals—one could join the armed forces; the other couldn’t—even though they are in all other respects similarly situated, based entirely on the fact that one of them, but not the other, was born with certain physical characteristics not commonly associated with a man—that is to say, based upon the external sexual anatomy with which each of them was born.

Biology, in other words, would determine destiny within the military.

As Sam Bagenstos, Mike Dorf, Leah Litman and I explained in an amicus brief in the Gloucester County v. G.G. case in 2017, that is a classic form of sex discrimination—discrimination on the basis of physical sex characteristics—that should be subject to heightened scrutiny because of the risk that it will perpetuate stereotypes that correlate physiological sex characteristics with other qualities and abilities that are not determined by such characteristics.  (Gloucester concerned Title IX, but a similar analysis should be applicable to such sex discrimination under the equal protection “component” of the Fifth Amendment.)[4]

And, largely for the reasons we offered in that amicus brief, it ought to be very difficult for such discrimination to withstand such scrutiny, even though some forms of segregation on the basis of sexual anatomy (such as providing separate men’s and women’s restrooms) generally satisfies such scrutiny as applied to cisgender persons, at least in certain contexts.

DOD offers two primary reasons for excluding “transitioned” individuals from the armed forces.

The first is a purported fairness concern with respect to persons who have transitioned to present themselves as female.  Although DOD briefly alludes to an alleged (but obviously pretextual) concern with other men’s perceptions of unfairness if a so-called “biological male” is required only to “meet the female physical fitness and body fat standards,” its principal argument in this respect (pp. 174a-175a) is that if such women are permitted “to compete against females in gender-specific physical training and athletic competition, it undermines fairness (or perceptions of fairness) because males [sic] competing as females will likely score higher on the female test than on the male test and possibly compromise safety.”

This strikes me as a manifest makeweight.  As far as I’m aware there’s no evidence of any such “fairness” problems, real or perceived, in the military, even though service-members have transitioned, and are transitioning, under the Carter policy (and others would do so even under the Mattis policy if they were diagnosed with gender dysphoria before that policy commenced—presumably without material effects on actual or perceived “fairness” within the unit).  Moreover, as a recent Palm Center Report on the Mattis policy explains:

The [DOD] Report [on which Mattis relied] assumes incorrectly that “biologically-based standards will be applied uniformly to all Service members of the same biological sex,” contrary to current practice in which gender-based presumptions are adjustable based on circumstances.  At the U.S. Military Academy, for example, the [Mattis] Implementation Report observes that “Matching men and women according to weight may not adequately account for gender differences regarding striking force.”  But the Report ignores that Cadets’ skill level and aggression, not just weight, are factored into safety decisions, and West Point allows men and women to box each other during training [citing Alex Bedard, Robert Peterson, and Ray Barone, “Punching through Barriers: Female Cadets Integrated into Mandatory Boxing at West Point,” Association of the United States Army, Nov. 16, 2017].

While sex-based standards are used in concert with other factors to promote fairness and safety, male-female segregation is not absolute—and it is not sufficient.  Ensuring fairness and safety in combative training is always a command concern because of the wide variation in body size and weight within gender even when gender is defined by birth.  Commanders at all levels are able to make judgments about how to conduct training in ways that adequately protect the participants, and they are able to do the same thing for transgender service members when and if needed.  This hypothetical scenario does not lend any credence to the contention that inclusive policy has compromised or could compromise cohesion, privacy, fairness, or safety.

Moreover, even if some minuscule number of service-members did have some concerns about perceived unfairness in e.g., boxing competitions, the response to this alleged “fairness” concern–categorical exclusion of very valuable and skilled persons from the armed forces–would be grossly disproportionate to the problem.

And so that brings us to DOD’s other rationale, which is almost surely the driving force behind the decision to exclude transitioned individuals—namely, the commonly heard “privacy in restrooms and showers” concern, particularly as applied to transgender women.  DOD argues (p.188a) that to allow transgender persons who have not undergone a full sex reassignment—persons who “retain at least some of the anatomy of their biological sex”—to use the facilities of their identified gender “would invade the expectations of privacy that the strict male-female demarcation in berthing, bathroom, and shower facilities is meant to serve.”

Of course, this rationale does not apply, even on its face, to transgender persons who have completed successful gender-confirmation surgery, as DOD acknowledges (see p.175a:  “These problems could perhaps be alleviated if a person’s preferred gender were recognized only after the person underwent a biological transition.”).[5]  But even as applied to transitioned persons who continue to have the external genitals with which they were born, this rationale leaves a lot to be desired.

To be sure, DOD has at least a snippet of evidence it can invoke in support of its rationale:  The DoD report to Mattis cited one instance (see p.37) under the Carter policy in which a commander received a complaint “from biological females in the unit who believed that granting a biological male, even one who identified as a female, access to their showers violated their privacy.”  As my co-amici and I explained in our brief in Gloucester County, however (see pp. 33-36), such expected yet relatively infrequent “privacy” complaints are hardly sufficient grounds to justify imposing a rule excluding transgender students from high school restrooms associated with their identified gender, let alone to categorically exclude transitioned persons from the U.S. military.  What’s more, as the Palm Center Report explains, DoD guidance for the Carter policy offers commanders tools that ought to be sufficient to resolve such matters in the rare cases they arise:

The situation closely matches scenarios 11 and 15 in the Commander’s Handbook, which emphasize that all members of the command should be treated with dignity and respect:  “In every case, you may employ reasonable accommodations to respect the privacy interests of Service members.”  Commanders are given the following guidance on reasonable accommodations:  “If concerns are raised by Service members about their privacy in showers, bathrooms, or other shared spaces, you may employ reasonable accommodations, such as installing shower curtains and placing towel and clothing hooks inside individual shower stalls, to respect the privacy interests of Service members.  In cases where accommodations are not practicable, you may authorize alternative measures to respect personal privacy, such as adjustments to timing of the use of shower or changing facilities.”

As that passage suggests, the most salient point here is that even if it would be reasonable for DOD to take some steps, such as “adjustments to timing of the use of shower or changing facilities,” to address concerns about privacy in shower rooms and the like, it’s gross overkill to address the problem by prohibiting successfully transitioned persons from being in the military at all.

For these reasons, the most difficult part of the Mattis policy for DOD to defend, even if the courts do afford extensive deference to military judgments, is its categorical exclusion of transitioned individuals from the military.

Dysphoria.  As explained above, when it comes to service-members with gender dysphoria who have not yet transitioned, the principal difference between the two retention policies is that whereas the Carter policy allows service-members with a dysphoria diagnosis to take medically indicated steps (e.g., hormone treatments and/or surgery) to transition to their preferred gender, and DOD pays for that transition, a service-member under the Mattis policy would be categorically barred from engaging in gender transition at all—social, medical or surgical—if he or she wishes to remain in the military.

The plaintiffs’ constitutional challenge to this aspect of the Mattis policy depends upon showing, at a minimum, that whereas the Carter Policy treats service-members with dysphoria equally with service-members who suffer from other medical conditions that are unrelated to gender identity or gender transition but that have an equivalent or greater impact on military readiness and cohesion, the Mattis policy would, by contrast, treat gender dysphoria more harshly than DOD treats other medical conditions that require equivalent or more extensive treatment and that have an equal or greater impact on military readiness and cohesion.

Assuming the plaintiffs can show that the Mattis policy, but not the Carter policy, treats gender dysphoria more harshly than the military treats such medical conditions unrelated to gender identity that have analogous impacts on the military,[6] the constitutionality of such disparate treatment would then depend upon why DOD does so—on whether DOD can establish, at the very least, plausible bases for such differences apart from (i) simple hostility toward transgender individuals or (ii) an objective to prevent service-members from becoming transitioned, which (as discussed above) would likely be a form of unjustifiable sex discrimination against transitioned individuals on the basis of their “biological” sex characteristics.

As the D.C. Circuit panel suggested on Friday, the courts are likely to afford a great deal of deference to military judgments in this regard.  Even so, however, it’s not clear DOD will be able to provide a legitimate explanation why it’s necessary to deviate from its ordinary policies and standards when it comes to this particular medical condition.  The recent Palm Center Report on the Mattis policy suggests that this could be a difficult showing for DOD to make.

I don’t know enough about the facts, or the records in the cases, to make any confident assessment about the likely outcome on the challenge to the retention conditions.  Nevertheless this much seems true:  If, as appears to be the case, DOD’s principal rationale here–as with the Mattis policy ban on accession of transitioned individuals–is based upon an alleged concern about allowing transgender women to share certain facilities with other women, and even if it would be justifiable to impose certain limited restrictions on such facility access, that would not begin to explain why it’d be reasonable for DOD also to prohibit transgender service-members from adhering to the uniform and grooming standards of their experienced gender, or for prohibiting those same valuable service-members from engaging in the process of, e.g., social and medical transitioning.  As DOJ emphasizes in its latest filings, even the Mattis policy would permit such persons to serve “openly” as transgender.  If that’s the case, then what would possibly explain why the Pentagon would prevent those same persons from dressing and grooming themselves in accord with their experienced, and self-proclaimed, gender?  Such a limitation would appear to be nothing more a form of simple, gratuitous cruelty.  If that’s right, then the Mattis retention limitations ought to be constitutionally dubious no matter what degree of scrutiny the Court ultimately applies, and regardless of the degree of deference it affords to reasonable military judgments.

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[1] The APA site in question also refers to individuals whose “gender expression (outward performance of gender) differs from the sex or gender to which they were assigned at birth,” but I’m not sure that’s what’s at issue in these cases:  My understanding is that some persons may choose to outwardly “perform” as a particular gender without necessarily having a deeply felt sense of being of that sex or gender.  If I’m not mistaken, such persons are not the subject of the disputes in these cases, nor are they always or often referred to as “transgender.”  To be sure, the transgender persons at issue in these cases may often have such a gender expression or outward performance of particular characteristics traditionally associated with one sex, but it’s their “inner sense” of that gender that makes them “transgender,” at least for these discrete purposes.

[2] As I and my fellow amici noted in our brief in the recent G.G. case, in many “biological” respects a transgender person might have sex characteristics different from those assigned at birth.  Because of hormone treatment or surgery, for instance, their voice and physical appearance may correspond to their identified gender; and even at birth, a person’s chromosomal, anatomical, hormonal, and/or reproductive characteristics could be ambiguous or in conflict.  See Radtke v. Misc. Drivers & Helpers Union Local No. 638 Health, Welfare, Eye & Dental Fund, 867 F. Supp. 2d 1023, 1032 (D. Minn. 2012).  What DOD undoubtedly has in mind, then, is the sex that a hospital assigned to the person at birth, which is ordinarily a function of the newborn’s external genitalia.

[3] There’s a possible third distinction, as well.  By its terms, the Mattis policy provides (p.200a) that “service members who are diagnosed with gender dysphoria after entering military service may be retained without waiver, provided that[, inter alia,] … the Service member does not require gender transition.”  The phrase “does not require” there is ambiguous.  If it is intended to mean only that a service-member cannot serve if he or she “requires”gender transition in order to adequately perform his or her military functions, it would not differ from the Carter policy.  If, however, the phrase is construed to mean that persons who “require” transition in order to treat their gender dysphoria must be removed from service altogether, then of course it would amount to a virtually categorical ban on service-members with dysphoria (other than those who are subject to the “reliance” exception), which is virtually the opposite of what the Carter policy prescribes for such persons.

[4] DOJ asserts (see p.11) that making distinctions on the basis of whether a person has transitioned is a form of discrimination on the basis of “treatment,” and thus should be “subject only to rational-basis review.”  Obviously, however, the Mattis policy would not exclude transitioned individuals from the armed services because they’ve previously undergone a particular form of “treatment”—it would instead exclude them because the external sexual anatomy with which they were born does not correspond to the gender to which they have successfully transitioned, which is literally a form of discrimination on the basis of (biological) sex.

[5]  In response, DOD asserts (id.) that “[t]he concept of gender transition is so nebulous . . . that drawing any line—except perhaps at a full sex reassignment surgery—would be arbitrary, not to mention at odds with current medical practice, which allows for a wide range of individualized treatment,” and, “[i]n any event, rates for genital surgery are exceedingly low—2% of transgender men and 10% of transgender women.”  These factors purportedly “weigh in favor of maintaining a bright line based on biological sex” (id. at 176a).

[6] DOD asserts (see Pet. App. 206a) that the Carter policy actually treats service-members with a history or diagnosis of gender dysphoria more favorably than DOD treats similarly situated service-members with other medical conditions—that it “exempt[s] such persons from well-established mental health, physical health, and sex-based standards, which apply to all Service members.”  As far as I can tell, however, the only such purported “exemption” that DOJ identifies (see p.4) is that the Carter policy permits individuals with gender dysphoria who have undergone gender transition to adhere to the grooming, uniform and facilities rules for persons of their identified gender, thereby “exempt[ing] [them] from the uniform, biologically based standards applicable to their biological sex.”  But that “exemption,” of course, is precisely the way in which the medical condition in question is alleviated, thereby allowing the member to better serve the armed forces.  Moreover, as I discuss below, once service-members have successfully transitioned there is unlikely to be any significant military need to require them to continue to abide by the grooming, uniform and facilities standards “applicable to their biological sex.”

 

  

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).