DOE et al v. TRUMP et al
Filing
1
COMPLAINT for Declaratory and Injunctive Relief, against ELAINE C. DUKE, JOSEPH F. DUNFORD, JR., JAMES N. MATTIS, RYAN D. MCCARTHY, DONALD J. TRUMP, UNITED STATES COAST GUARD, UNITED STATES DEPARTMENT OF THE AIR FORCE, UNITED STATES DEPARTMENT OF THE ARMY, UNITED STATES OF AMERICA, HEATHER A. WILSON ( Filing fee $ 400 receipt number 0090-5066975) filed by JANE DOE 3, JANE DOE 2, JANE DOE 1, JANE DOE 4, JANE DOE 5. (Attachments: # 1 Civil Cover Sheet, # 2 Summons - Trump, # 3 Summons - Mattis, # 4 Summons - Dunford, # 5 Summons - U.S. Army, # 6 Summons - McCarthy, # 7 Summons - U.S. Air Force, # 8 Summons - Wilson, # 9 Summons - U.S. Coast Guard, # 10 Summons - Duke, # 11 Summons - U.S.A.)(Wolfson, Paul)
Case 1:17-cv-01597 Document 1 Filed 08/09/17 Page 1 of 15
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANE DOE 1, JANE DOE 2, JANE DOE 3,
JANE DOE 4, and JANE DOE 5,
)
)
)
Plaintiffs,
)
)
v.
)
)
DONALD J. TRUMP, in his official capacity as )
President of the United States; JAMES N.
)
MATTIS, in his official capacity as Secretary of )
Defense; JOSEPH F. DUNFORD, JR., in his
)
official capacity as Chairman of the Joint Chiefs )
of Staff; the UNITED STATES DEPARTMENT )
OF THE ARMY; RYAN D. MCCARTHY, in
)
his official capacity as Secretary of the Army;
)
the UNITED STATES DEPARTMENT OF
)
THE AIR FORCE; HEATHER A. WILSON, in )
her official capacity as Secretary of the Air
)
Force; the UNITED STATES COAST GUARD; )
ELAINE C. DUKE, in her official capacity as
)
Secretary of Homeland Security; and the
)
UNITED STATES OF AMERICA,
)
)
Defendants.
)
Case No.
17-cv-1597
COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF
INTRODUCTION
1.
This is a constitutional and equitable challenge to President Donald J. Trump’s
decision to reverse the current policy of the United States Armed Forces by prohibiting
transgender servicemembers from “serv[ing] in any capacity in the U.S. military.”
2.
In June 2016, the United States Department of Defense announced after an
exhaustive review process that it would allow transgender people to serve openly in the United
States Armed Forces.
3.
Since that time, Plaintiffs, along with thousands of servicemembers, have
followed protocol in informing their chain of command that they are transgender. They did so in
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reliance on the United States’ express promises that it would permit them to continue to serve
their country openly. These servicemembers, like many others, have built their lives around their
military service.
4.
On July 26, 2017, President Trump announced in a series of tweets that he would
reverse the Department of Defense’s policy on transgender servicemembers, stating that “the
United States Government will not accept or allow transgender individuals to serve in any
capacity in the U.S. Military.” The President’s announcement, which upon information and
belief was made without consulting the Joint Chiefs of Staff, upset the reasonable expectations of
Plaintiffs and thousands of other transgender servicemembers and the men and women with
whom they serve and fight.
5.
Upon information and belief, the White House turned that decision into official
guidance, approved by the White House counsel’s office, to be communicated to the Department
of Defense.
6.
Plaintiffs here are five servicemembers who collectively have served this nation
for decades in various branches of the United States military.
7.
Execution of the President’s directive will result in an end to service by openly
transgender service members and has already resulted in immediate, concrete injury to Plaintiffs
by unsettling and destabilizing plaintiffs’ reasonable expectation of continued service.
8.
The directive to reinstate a ban on open service by transgender people violates
both the Equal Protection component of the Fifth Amendment and the Due Process Clause of the
Fifth Amendment to the United States Constitution. Additionally, Defendants are estopped from
terminating the continued service of Plaintiffs and other active duty transgender servicemembers.
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9.
This lawsuit seeks declaratory and permanent injunctive relief against
implementation of the President’s directive to prohibit transgender individuals from serving in
the Armed Forces.
JURISDICTION AND VENUE
10.
This court has jurisdiction over the claims under 28 U.S.C. §§ 1331 and 1343.
11.
Venue is proper in this district under 28 U.S.C. § 1391(b) because the acts
described in this Complaint occurred in this judicial district.
PLAINTIFFS
12.
Plaintiffs are active duty servicemembers in the United States military who serve
openly as transgender people. They proceed under pseudonyms here for fear of retribution.
13.
Jane Doe 1 has served with distinction in the United States Coast Guard for more
than a decade.
14.
In or around June 2016, in reliance on the issuance of the policy permitting open
service by transgender servicemembers, Jane Doe 1 notified her command that she is
transgender.
15.
Since that time, she has continued to serve without incident and has furthered her
gender transition in reliance on the Department of Defense’s policy permitting open service by
transgender servicemembers.
16.
Following President Trump’s tweets, Jane Doe 1 submitted a prospective letter of
resignation stating that she would resign rather than be involuntarily terminated on account of
her transgender status. Were the Department of Defense to retreat from the policy announced by
President Trump, Jane Doe 1 would withdraw her resignation and continue to serve.
17.
Jane Doe 2 has been enlisted in the National Guard since 2003 and has been on
active duty in the United States Army since 2006.
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18.
Jane Doe 2 notified her command that she is transgender after the United States
Department of Defense announced in June 2016 that it would allow transgender servicemembers
to serve openly in the military.
19.
In reliance on the Department’s promise to allow transgender servicemembers to
serve openly, Jane Doe 2 began to seek medical treatment relating to her gender transition in
September 2016.
20.
Since informing her command that she is transgender, Jane Doe 2 has continued
serving in her post without incident.
21.
Jane Doe 2’s current contract with the military extends through November 2018.
She is counting on the compensation and benefits accrued during that time to pay for further
education and training to begin a civilian career, but she fears that the ban may result in early
termination of her contract.
22.
Jane Doe 3 has served in the United States Army since 2015. She has previously
been deployed to Afghanistan and expects to be deployed to Iraq soon.
23.
In or around June of 2016, in reliance on the Department of Defense policy
permitting transgender people to serve openly in the military, Jane Doe 3 notified her command
that she is transgender. Since then, she has continued serving her post without incident.
24.
Jane Doe 3’s current contract with the military extends through December 2018.
She plans to renew her contract, but fears that she will not be allowed to do so because of the
ban.
25.
Jane Doe 4 has served in the United States Army since 2000.
26.
In or around June of 2016, in reliance on the Department of Defense policy
permitting transgender people to serve openly in the military, Jane Doe 4 met with her
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commanding officer to identify herself as transgender. She began receiving medical treatment
related to her gender transition in September 2016.
27.
Since coming out as transgender, Jane Doe 4 continued serving in her post
without incident.
28.
Jane Doe 4’s current contract with the military extends through June 2018. She
plans to renew her contract to complete two additional years of service following the expiration
of her current contract so that she can reach twenty years of service and receive retirement
benefits. She fears that the President’s directive banning transgender people from military
service will result in her discharge from the military before she can reach this twenty-year
benchmark, thus leading to a substantial decrease in her retirement payments.
Jane Doe 5 has been an active duty member of the United States Air Force for nearly twenty
years, serving multiple tours of duty abroad, including two in Iraq.
29.
After June 2016, in reliance on the announcement that transgender people would
be permitted to serve openly, she notified her superiors that she is transgender. She has served in
the intervening time without incident.
30.
Jane Doe 5’s livelihood depends on her military service. Separation from the
military would have devastating financial and emotional consequences for her.
DEFENDANTS
31.
Defendant Donald J. Trump is President of the United States and Commander in
Chief of the Armed Forces. On July 26, 2017, President Trump stated on Twitter that
transgender people would not be permitted to serve “in any capacity in the U.S. military.” Upon
information and belief, President Trump subsequently directed that decision to be turned into
official guidance to be transmitted for implementation to the Department of Defense.
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32.
Defendant James N. Mattis is the United States Secretary of Defense. He is the
leader of the Department of Defense.
33.
Defendant Joseph F. Dunford, Jr. is a United States Marine Corps General and
services as the current Chairman of the Joint Chiefs of Staff.
34.
Defendant Department of the Army is one of three military departments of the
Department of Defense and is responsible for the administration and operation of the United
States Army.
35.
Defendant Ryan D. McCarthy is the Acting United States Secretary of the Army.
He is the leader of the Department of the Army.
36.
Defendant Department of the Air Force is one of three military departments of the
Department of Defense and is responsible for the administration and operation of the United
States Air Force.
37.
Defendant Heather A. Wilson is the United States Secretary of the Air Force. She
is the leader of the Department of the Air Force.
38.
Defendant United States Coast Guard is one of the five branches of the United
States Armed Forces.
39.
Defendant Elaine C. Duke is the Acting United States Secretary of Homeland
Security. She is the leader of the Department of Homeland Security. The Department of
Homeland Security is responsible for the administration and operation of the United States Coast
Guard.
40.
Defendant United States of America includes all federal government agencies and
departments responsible for the implementation of the President’s decision.
41.
All of the Defendants are sued in their official capacities.
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STATEMENT OF FACTS
Background on Transgender People Serving Openly In the Military
42.
In May 2014, then-Secretary of Defense Chuck Hagel, a decorated U.S. Army
combat veteran, recommended that the military conduct a review of whether transgender people
should be permitted to serve openly in the Armed Forces.
43.
In August 2014, the Department of Defense issued a new regulation that
eliminated its categorical ban on open service by transgender persons and instructed each branch
of the Armed Forces to reassess whether maintaining a service-wide ban on service by openly
transgender persons was justified.
44.
Secretary Hagel explained that “[e]very qualified American who wants to serve
our country should have an opportunity to do so if they fit the qualifications and can do it.”
45.
Secretary Hagel was succeeded as Secretary of Defense by Ashton B. Carter, who
had previously served many years within the Department, including as Deputy Secretary of
Defense, Under Secretary of Defense for Acquisition, Technology and Logistics, Assistant
Secretary of Defense for International Security Policy, and as a member of the Defense Policy
Board and the Defense Science Board. In July 2015, Secretary Carter announced that the
military would begin a comprehensive analysis of whether to maintain the prohibition on
military service by transgender people.
46.
Over the course of a year, Secretary Carter oversaw a comprehensive review of
this issue by the leadership of the Armed Services, the Joint Chiefs of Staff, the service
secretaries, and personnel, training, readiness, and medical specialists from across the
Department of Defense.
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47.
That year-long process examined all the data available on the issue, including but
not limited to existing studies and research and input from transgender servicemembers, outside
expert groups, and medical professionals.
48.
This process also included a careful review of the eighteen other countries that
permit military service by openly transgender people.
49.
This process also included consultation with doctors, employers, and insurance
companies regarding the provision of medical care to transgender people.
50.
The Department of Defense also commissioned the RAND Corporation, an
organization formed after World War II to connect military planning with research and
development decisions and which now operates as an independent think tank financed by the
U.S. government, to analyze relevant data and studies to determine the impact of permitting
transgender servicemembers to serve openly.
51.
The study, titled “Assessing the Implications of Allowing Transgender Personnel
to Serve Openly” (the “RAND Study”), concluded that allowing transgender people to serve
openly would “cost little and have no significant impact on unit readiness.”
52.
The RAND Study concluded that health care costs for transgender
servicemembers would represent “an exceedingly small proportion of [the Department of
Defense’s] overall health care expenditures.” The RAND Study also concluded that this minimal
incremental cost would likely be offset by savings through diminished rates of other health care
costs that would be achieved by providing servicemembers with necessary transition-related
medical care.
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53.
Based on the results of this comprehensive, year-long review process, the
Department of Defense concluded that the needs of the military would be best served by
permitting openly transgender people to serve.
54.
As laid out by Secretary Carter in remarks delivered on June 30, 2016, that
conclusion was based on a number of considerations, including: the need to recruit and retain the
most highly qualified people to serve in our nation’s Armed Forces; the fact that thousands of
transgender people are already serving and that the military has already invested thousands of
dollars to train each servicemember; the benefits to the military of retaining individuals who are
already trained and who have already proven themselves; the need to provide both transgender
servicemembers and their commanders with clear guidance on questions such as deployment and
medical treatment; and the principle that “Americans who want to serve and can meet our
standards should be afforded the opportunity to compete to do so.”
55.
On June 30, 2016, Secretary Carter announced that “[e]ffective immediately,
transgender Americans may serve openly. They can no longer be discharged or otherwise
separated from the military just for being transgender.”
56.
Also on June 30, 2016, Secretary Carter issued Directive-Type Memorandum 16-
005, titled “Military Service of Transgender Service Members.” The memorandum states: “The
policy of the Department of Defense is that service in the United States military should be open
to all who can meet the rigorous standards for military service and readiness. Consistent with the
policies and procedures set forth in this memorandum, transgender individuals shall be allowed
to serve in the military. These policies and procedures are premised on my conclusion that open
service by transgender Service members while being subject to the same standards and
procedures as other members with regard to their medical fitness for duty, physical fitness,
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uniform and grooming, deployability, and retention, is consistent with military readiness and
with strength through diversity.”
57.
In September 2016, the Department of Defense issued an implementation
handbook entitled “Transgender Service in the United States Military.” The 71-page document
set forth guidance and instructions to both military servicemembers and commanders about how
to implement and understand the new policies enabling open service of transgender
servicemembers.
58.
On October 1, 2016, the Office of the Undersecretary of Defense for Personnel
and Readiness issued “DoD Instruction 1300.28—In-Service Transition for Transgender Service
Members.” The instruction set forth further guidance to ensure open service by transgender
servicemembers, including details regarding revisions to medical treatment provisions. This
instruction was further implemented by a memorandum issued by the Acting Assistant Secretary
of Defense for Health Affairs entitled “Guidance for Treatment of Gender Dysphoria for Active
and Reserve Component Service Members.”
59.
On November 29, 2016, the Department of Defense revised “DoD Directive
1020.02E—Diversity Management and Equal Opportunity in the DoD” to prohibit
discrimination and harassment on the basis of gender identity.
60.
In 2016, the United States Coast Guard adopted policies and procedures for
service by transgender servicemembers that are substantially the same as the Department of
Defense policies described above.
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The Ban on Transgender Servicemembers
61.
Early in the morning of July 26, 2017, without any prior indication that he would
address military transgender policy, President Trump announced in a series of tweets that the
military would no longer permit the service of transgender Americans.
62.
His tweets read: “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.”
63.
Shortly following the announcement, the new policy met with substantial
criticism from members of Congress belonging to both political parties. These critics included
Senator John McCain, chairman of the Senate Armed Services Committee, who said in a
statement that “there is no reason to force servicemembers who are able to fight, train, and
deploy to leave the military—regardless of their gender identity.” Senator Joni Ernst, another
Republican member of the Senate Armed Services Committee, also publicly expressed
opposition to the new policy.
64.
Upon information and belief, the President did not consult either the Joint Chiefs
of Staff or the Department of Defense before making his announcement.
65.
Shortly after the announcement, fifty-six former generals and admirals issued a
public statement denouncing the new policy.
66.
Commandant Admiral Paul Zukunft of the United States Coast Guard criticized
the proposed policy and expressly reached out to all openly transgender members of the Coast
Guard, vowing not to “turn [his] back” on transgender servicemembers. Commandant Admiral
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Zukunft has arranged for Judge Advocate General’s Corps officers to assist transgender Coast
Guard members affected by the change in policy.
67.
Upon information and belief, the White House outlined a plan to end the active
service of transgender servicemembers to be transmitted to the Department of Defense for
implementation.
COUNT I
(Fifth Amendment – Equal Protection)
68.
All previous paragraphs are incorporated as though fully set forth herein.
69.
The Due Process Clause of the Fifth Amendment prohibits the federal
government from denying equal protection of the laws.
70.
President Trump’s directive to exclude transgender people from military service
discriminates against Plaintiffs based on their sex and transgender status, without lawful
justification, in violation of the Equal Protection component of the Due Process Clause of the
Fifth Amendment.
71.
The categorical exclusion of transgender people from military service lacks a
rational basis, is arbitrary, and cannot be justified by sufficient federal interests.
72.
Through the actions above, Defendants have violated the Equal Protection
component of the Due Process Clause of the Fifth Amendment.
COUNT II
(Fifth Amendment – Due Process)
73.
All previous paragraphs are incorporated as though fully set forth herein.
74.
The Due Process Clause of the Fifth Amendment prohibits the federal
government from depriving individuals of their property or liberty interests without due process
of law.
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75.
The Due Process Clause of the Fifth Amendment requires, at a minimum, that
government action have some rational basis.
76.
The President’s directive to exclude transgender people from military service is
arbitrary and capricious and lacks any rational basis.
77.
Defendants’ 2016 policy permitting transgender people to serve openly in the
military, together with Plaintiffs’ reliance on that policy in notifying their superiors of their
transgender status, created a protected interest in Plaintiffs’ ability to continue serving in the
military as openly transgender servicemembers.
78.
Defendants’ arbitrary reversal of the United States’ June 2016 policy threatens to
exclude Plaintiffs from continued military service because they are transgender, thus depriving
Plaintiffs of those interests without due process of law.
79.
Defendants’ arbitrary reversal of the United States’ June 2016 policy also
impermissibly burdens Plaintiffs’ fundamental rights to autonomy and privacy.
80.
Through the actions above, Defendants have violated the Due Process Clause of
the Fifth Amendment.
COUNT III
(Estoppel)
81.
All previous paragraphs are incorporated as though fully set forth herein.
82.
By virtue of its June 2016 policy allowing transgender servicemembers to serve
openly in the United States Armed Forces, Defendants promised Plaintiffs that they could serve
openly and continue to serve openly, subject to the same rights, responsibilities, benefits, and
opportunities as other servicemembers.
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83.
From the implementation of its June 2016 policy until the President’s June 26,
2017 announcement, Defendants provided Plaintiffs with ongoing support for their continued
service in the military as openly transgender persons.
84.
In reliance upon that promise from Defendants, Plaintiffs informed their
commanding officers that they are transgender.
85.
In reliance upon that promise from Defendants, Plaintiffs have undergone medical
treatment for the purpose of gender transition.
86.
Because they identified themselves as transgender in reliance on Defendants’
earlier promise, Plaintiffs have lost the stability and certainty they had in their careers and
benefits, including post-military and retirement benefits that depend on the length of their
service.
87.
Plaintiffs have served honorably and successfully in the military since coming out
as transgender, and their transgender status has not had any detrimental effect on their ability to
serve or to fulfill their duties.
88.
Through the actions above, Defendants are estopped from rescinding the rights,
benefits, and protections promised to Plaintiffs.
PRAYER FOR RELIEF
Plaintiffs ask the Court to grant the following relief:
1.
Issue a declaratory judgment that the President’s directive to categorically exclude
transgender people from military service is unconstitutional;
2.
Issue a preliminary injunction prohibiting the categorical exclusion of transgender
people from military service;
3.
Issue a permanent injunction prohibiting the categorical exclusion of transgender
people from military service;
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4.
Award Plaintiffs their reasonable costs and attorneys’ fees;
5.
Issue any other relief the Court deems appropriate.
August 9, 2017
Claire Laporte (pro hac vice forthcoming)
Matthew E. Miller (pro hac vice forthcoming)
Daniel McFadden (pro hac vice forthcoming)
Rachel C. Hutchinson (pro hac vice
forthcoming)
FOLEY HOAG LLP
155 Seaport Blvd.
Boston, Massachusetts 02210
Telephone: 617-832-1000
Fax: 617-832-7000
Jennifer Levi (pro hac vice forthcoming)
GLBTQ LEGAL ADVOCATES & DEFENDERS
30 Winter St., Ste. 800
Boston, Massachusetts 02108
Telephone: 617-426-1350
Fax: 617-426-3594
Shannon P. Minter (pro hac vice
forthcoming)
Amy Whelan (pro hac vice forthcoming)
NATIONAL CENTER FOR LESBIAN RIGHTS
870 Market St., Ste. 370
San Francisco, California 94102
Telephone: 415-392-6257
Fax: 415-392-8442
Respectfully submitted,
/s/ Paul R.Q. Wolfson
Paul R.Q. Wolfson (D.C. Bar No. 414759)
WILMER CUTLER PICKERING HALE & DORR
LLP
1875 Pennsylvania Ave. N.W.
Washington, D.C. 20006
Telephone: 202-663-6000
Fax: 202-663-6363
Alan E. Schoenfeld (pro hac vice
forthcoming)
WILMER CUTLER PICKERING
HALE & DORR LLP
7 World Trade Center
250 Greenwich St.
New York, New York 10007
Telephone: 212-230-8800
Fax: 212-230-8888
Adam M. Cambier (pro hac vice forthcoming)
WILMER CUTLER PICKERING
HALE & DORR LLP
60 State Street
Boston, Massachusetts 02109
Telephone: 617-526-6000
Fax: 617-526-5000
Attorneys for Plaintiffs
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