DOE et al v. TRUMP et al

Filing 9

AMENDED 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, UNITED STATES DEPARTMENT OF THE NAVY, DEFENSE HEALTH AGENCY, RICHARD V. SPENCER, RAQUEL C. BONO filed by JANE DOE 2, JANE DOE 1, JANE DOE 3, JANE DOE 4, JANE DOE 5, DYLAN KOHERE, REGAN V. KIBBY, JOHN DOE, 1. (Attachments: # 1 Summons - U.S. Department of the Navy, # 2 Summons - Defense Health Agency, # 3 Summons - Raquel C. Bono, # 4 Summons - Richard V. Spencer)(Lamb, Kevin)

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 1 of 20

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANE DOE 1, JANE DOE 2, JANE DOE 3,
JANE DOE 4, JANE DOE 5, JOHN DOE 1,
REGAN V. KIBBY, and DYLAN KOHERE,

)
)
)
)
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 NAVY; RICHARD V. SPENCER, in his
)
official capacity as Secretary of the Navy; 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; the DEFENSE )
HEALTH AGENCY; RAQUEL C. BONO, in
)
her official capacity as Director of the Defense
)
Health Agency; and the UNITED STATES OF
)
AMERICA,
)
)
Defendants.
)

Civil Action No. 17-cv-1597 (CKK)

AMENDED 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 reverting to the
“policy and practice [forbidding] military service by transgender individuals that was in place
prior to June 2016.” The earlier policy, originally codified as Department of Defense Instruction
1332.38, barred transgender persons from enlisting or being retained in the U.S. Armed Forces
1

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 2 of 20

by prohibiting individuals who are transgender from serving openly, whether or not they required
any ongoing medical treatment and regardless of their fitness to serve.
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 many other servicemembers, have followed

protocol in informing their chain of command that they are transgender. They did so in reliance
on the United States’ express promises that it would permit them to continue to serve their
country openly. Some Plaintiffs, like many other servicemembers, have built their lives around
their military service. Others are just beginning their careers at service academies or in the
Reserve Officers’ Training Corps (“ROTC”), and they hope for the opportunity to serve their
country in the future.
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.

On August 25, 2017, the President signed a formal directive to the Secretary of

Defense and the Secretary of Homeland Security. The directive orders that the military return to
its earlier policy forbidding transgender people from joining or serving openly in the military. It

2

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 3 of 20

confers no authority on the Secretary of Defense to depart from this directive. As a consequence,
no servicemembers who are openly transgender may enlist or continue their military service.
6.

Plaintiffs here are eight servicemembers (including one student at the U.S. Naval

Academy and one student participating in the Reserve Officers’ Training Corps) who
collectively have served this Nation for decades in various branches of the United States
military.
7.

Execution of the President’s directive bars transgender people from enlisting or

serving openly in the military and has resulted in immediate, concrete injury to Plaintiffs.
8.

The President’s categorical exclusion of transgender people from enlisting or

serving openly in the military 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, transgender students enrolled in
military academies, and transgender students participating in ROTC programs.
9.

This lawsuit seeks declaratory, preliminary, and permanent injunctive relief

against implementation of the President’s directive to prohibit transgender individuals from
enlisting or serving openly 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 or are students, either at service academies or in ROTC programs,
3

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 4 of 20

who are open as transgender to their command. Some 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.

Some weeks after President Trump’s tweets, a transition-related procedure Jane

Doe 1 was scheduled for was summarily canceled by the Defense Health Agency.
17.

Also 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.
18.

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.
19.

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.

4

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 5 of 20

20.

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.
21.

Since informing her command that she is transgender, Jane Doe 2 has continued

serving in her post without incident.
22.

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 if the policy announced in the President’s
August 25, 2017 order is permitted to take effect, she will be involuntarily discharged before her
current contract ends.
23.

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.
24.

In or around June 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.
25.

Jane Doe 3’s current contract with the military extends through December 2018.

She plans to renew her contract, but she will not be allowed to do so because of the new ban.
26.

Jane Doe 4 has served in the United States Army since 2000.

27.

In or around June 2016, in reliance on the Department of Defense policy

permitting transgender people to serve openly in the military, Jane Doe 4 met with her
commanding officer to identify herself as transgender. She began receiving medical treatment
related to her gender transition in September 2016.

5

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 6 of 20

28.

Since coming out as transgender, Jane Doe 4 continued serving in her post

without incident.
29.

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. If permitted to take effect, the President’s directive banning transgender people from
military service will result in her discharge from the military before she can reach this twentyyear benchmark, thus leading to a substantial decrease in her retirement payments.
30.

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.
31.

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.
32.

Jane Doe 5’s livelihood depends on her military service. Separation from the

military will have devastating financial and emotional consequences for her.
33.

John Doe 1 was a Reserve Officers’ Training Corps (“ROTC”) cadet from 2014

to 2016 and has served as a Second Lieutenant in the United States Army since July 2016. He
expects to be deployed to the Middle East in 2018.
34.

John Doe 1 advised his superiors in ROTC that he is transgender. He was

commissioned as a Second Lieutenant shortly after the Department of Defense announced that
transgender people would be permitted to serve openly. In reliance on that policy, John Doe 1
notified his command that he was transgender. John Doe 1 has served since that time and has
been praised for his commitment to excellence.

6

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 7 of 20

35.

After the President’s tweets, John Doe 1 was advised that certain types of

transition-related medical care that he was expecting to receive had been suspended.
36.

John Doe 1 is concerned that if the new ban is permitted to take effect, he will be

discharged because he is transgender.
37.

Regan V. Kibby is a midshipman at the United States Naval Academy. In

reliance on the policy permitting transgender people to serve openly, he told the Naval Academy
that he is transgender. He was approved for a medical leave of absence so that his transition
would be complete in time for him to receive his commission in the U.S. Navy upon graduation.
38.

If the policy announced in the President’s August 25, 2017 order is permitted to

take effect, Plaintiff Kibby will not be permitted to return to the Naval Academy or to join the
U.S. Navy as a commissioned officer.
39.

Dylan Kohere is a first-year college student and a member of his school’s ROTC

program. He has been open to the Sergeant of his ROTC program about being transgender since
he joined the program.
40.

If the policy announced in the President’s August 25, 2017 order is permitted to

take effect, Plaintiff Kohere will be barred from enlisting in the military and, as a result, will no
longer be eligible to participate in his ROTC program or to receive an ROTC scholarship.
DEFENDANTS
41.

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.” On
August 25, 2017, President Trump issued a memorandum to the Secretary of Defense and the
Secretary of Homeland Security to ban enlistment by transgender people and to reverse the
policy adopted in June 2016 that permitted transgender people to serve openly in the military.
7

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 8 of 20

42.

Defendant James N. Mattis is the United States Secretary of Defense. He is the

leader of the Department of Defense.
43.

Defendant Joseph F. Dunford, Jr. is a United States Marine Corps General and

services as the current Chairman of the Joint Chiefs of Staff.
44.

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.
45.

Defendant Ryan D. McCarthy is the Acting United States Secretary of the Army.

He is the leader of the Department of the Army.
46.

Defendant Department of the Navy is one of three military departments of the

Department of Defense and is responsible for the administration and operation of the United
States Navy.
47.

Defendant Richard V. Spencer is the United States Secretary of the Navy. He is

the leader of the Department of the Navy.
48.

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.
49.

Defendant Heather A. Wilson is the United States Secretary of the Air Force. She

is the leader of the Department of the Air Force.
50.

Defendant United States Coast Guard is one of the five branches of the United

States Armed Forces.
51.

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

8

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 9 of 20

Homeland Security is responsible for the administration and operation of the United States Coast
Guard.
52.

Defendant Defense Health Agency is a Combat Support Agency that administers

health care services for the U.S Army, U.S. Navy, and U.S. Air Force. The Defense Health
Agency exercises management responsibility for the TRICARE Health Plan, which is the health
care program for all uniformed service members in the U.S. Army, U.S. Navy, U.S. Air Force,
U.S. Coast Guard, and certain other commissioned corps.
53.

Defendant Raquel C. Bono is a Vice Admiral and serves as Director of the

Defense Health Agency.
54.

Defendant United States of America includes all federal government agencies and

departments responsible for the implementation of the President’s decision.
55.

All of the Defendants are sued in their official capacities.
STATEMENT OF FACTS

Background on Transgender People Serving Openly In the Military
56.

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.
57.

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. See Department of Defense Instruction 1332.18.
58.

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.”

9

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 10 of 20

59.

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.
60.

In an order establishing a working group to carry out this analysis, made effective

as of July 13, 2015, Secretary Carter directed that no servicemember could be involuntarily
separated or denied reenlistment or continuation of active or reserve status on the basis of his or
her gender identity without the approval of the Under Secretary of Defense for Personnel and
Readiness.
61.

Over the course of a year, Secretary Carter oversaw a comprehensive review of

this issue by a working group of the military and civilian 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. The working group was chaired by Under
Secretary of Defense for Personnel and Readiness Brad Carson.
62.

That year-long process examined copious data on the relevant issues, including

but not limited to existing studies and research and input from transgender servicemembers and
their commanders, outside expert groups, and medical professionals.
63.

The process also included a careful review of the eighteen other countries that

permit military service by openly transgender people.

10

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 11 of 20

64.

The process also included consultation with doctors, employers, and insurance

companies regarding the provision of medical care to transgender people.
65.

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. Specifically, the RAND Corporation was tasked
with (1) identifying the health care needs of the transgender population and the health care costs
associated with providing transition-related care; (2) assessing the readiness implications of
allowing transgender servicemembers to serve openly; and (3) reviewing the experiences of
foreign militaries that permit transgender individuals to serve openly.
66.

The study, titled “Assessing the Implications of Allowing Transgender Personnel

to Serve Openly” (the “RAND Study”) and issued in May 2016, concluded that allowing
transgender people to serve openly would “cost little and have no significant impact on unit
readiness.”
67.

The RAND Study noted that the Military Health System already provides the

types of health care required by transgender servicemembers and 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.

11

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 12 of 20

68.

Based on the results of this comprehensive, year-long review process and on the

RAND Study, the Department of Defense concluded that the needs of the military would be best
met by permitting openly transgender people to serve.
69.

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 soldier, sailor, airman, or Marine who can best accomplish the mission” of our
nation’s Armed Forces; the fact that thousands of “talented and trained” transgender people are
already serving and that the military has already invested “hundreds of thousands of dollars to
train and develop each” transgender 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[] and consistent
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.”
70.

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.”
71.

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

12

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 13 of 20

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,
uniform and grooming, deployability, and retention, is consistent with military readiness and
with strength through diversity.”
72.

The year-long review process by the Department of Defense also concluded that

openly transgender people should be permitted to accede to the military so long as they had
completed all medical treatment associated with their transitions and had been stable in their
gender for eighteen months. The accession policy was scheduled to take effect on July 1, 2017
to allow the branches of the Armed Forces additional time to develop necessary standards and
policies.
73.

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.
74.

Within 90 days of the lifting of the ban, on October 1, 2016, the Office of the

Undersecretary of Defense for Personnel and Readiness issued “DoD Instruction 1300.28—InService 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.”

13

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 14 of 20

75.

Also within 90 days of the lifting of the ban, the Department of Defense issued

medical guidance for providing transition-related care to transgender servicemembers. As a
result, transgender servicemembers were able to begin the process of officially changing their
gender marker in the military’s personnel management system.
76.

Over the next nine months, between October 2016 and June 2017, the services

conducted training of the force based on detailed guidance and training materials regarding the
policy change.
77.

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.
78.

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.
79.

On June 30, 2017, the day before the policy permitting transgender people to

accede to the military was to take effect, Secretary Mattis extended the period for the
development of relevant standards by six months.
The Ban on Transgender Servicemembers
80.

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.
81.

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

14

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 15 of 20

overwhelming victory and cannot be burdened with the tremendous medical costs and disruption
that transgender in the military would entail.”
82.

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.
83.

Upon information and belief, the President did not consult either the Joint Chiefs

of Staff or the Department of Defense before making his announcement.
84.

Shortly after the announcement, fifty-six former generals and admirals issued a

public statement denouncing the new policy.
85.

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
Zukunft has arranged for Judge Advocate General’s Corps officers to assist transgender Coast
Guard members affected by the change in policy.
86.

On August 25, 2017, the President signed a formal directive to the Secretary of

Defense and the Secretary of Homeland Security. The directive orders that the military return to
its pre-June 2016 policy forbidding transgender people from joining or serving in the military.

15

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 16 of 20

87.

The August 25, 2017 directive also halts the use of military resources to “fund”

sex reassignment surgical procedures for military personnel, subject to a limited exception where
the servicemember’s health is at risk.
88.

Under the terms of the directive, the Secretary of Defense has six months to

develop a plan implementing the ban.
COUNT I
(Fifth Amendment – Equal Protection)
89.

All previous paragraphs are incorporated as though fully set forth herein.

90.

The Due Process Clause of the Fifth Amendment prohibits the federal

government from denying equal protection of the laws.
91.

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.
92.

The categorical exclusion of transgender people from military service lacks a

rational basis, is arbitrary, and cannot be justified by sufficient federal interests.
93.

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)
94.

All previous paragraphs are incorporated as though fully set forth herein.

95.

The Due Process Clause of the Fifth Amendment requires, at a minimum, that

government action have some rational basis.

16

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 17 of 20

96.

The President’s directive to exclude transgender people from military service is

arbitrary and capricious and lacks any rational basis.
97.

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.
98.

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.
99.

Defendants’ arbitrary reversal of the United States’ June 2016 policy also

impermissibly selectively burdens Plaintiffs’ fundamental rights to autonomy and privacy.
100.

Through the actions above, Defendants have violated the Due Process Clause of

the Fifth Amendment.
COUNT III
(Estoppel)
101.

All previous paragraphs are incorporated as though fully set forth herein.

102.

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.
103.

From the implementation of its June 2016 policy until the President’s July 26,

2017 announcement, Defendants provided Plaintiffs with ongoing support for their continued
service in the military as openly transgender persons.

17

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 18 of 20

104.

In reliance upon that promise from Defendants, Plaintiffs informed their

commanding officers that they are transgender.
105.

In reliance upon that promise from Defendants, Plaintiffs have undergone medical

treatment for the purpose of gender transition.
106.

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.
107.

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.
108.

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 and permanent injunction prohibiting the categorical

exclusion of transgender people from military service, including ordering that:
a.
Plaintiffs Jane Doe 1, Jane Doe 2, Jane Doe 3, Jane Doe 4,
Jane Doe 5, and John Doe 1 may not be separated from the
military, denied reenlistment, demoted, denied promotion, denied
medically necessary treatment on a timely basis, or otherwise
receive adverse treatment or differential terms of service on the
basis that they are transgender;
b.
Plaintiff Regan V. Kibby may not be denied the
opportunity to continue his attendance at the U.S. Naval Academy
18

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 19 of 20

on the basis that he is transgender, and may not be denied the
opportunity to accede to military service thereafter, or be denied
promotion, reenlistment, or any other equal terms of service on the
basis that he is transgender; and
c.
Plaintiff Dylan Kohere may not be denied the opportunity
to continue his participation in the Reserve Officers’ Training
Corps program on the basis that he is transgender, and may not be
denied the opportunity to accede to military service thereafter, or
be denied promotion, reenlistment, or any other equal terms of
service on the basis that he is transgender.
3.

Award Plaintiffs their reasonable costs and attorneys’ fees;

4.

Issue any other relief the Court deems appropriate.

19

Case 1:17-cv-01597-CKK Document 9 Filed 08/31/17 Page 20 of 20

August 31, 2017

Claire Laporte (pro hac vice forthcoming)
Matthew E. Miller (pro hac vice forthcoming)
Daniel McFadden (pro hac vice forthcoming)
Kathleen M. Brill (pro hac vice forthcoming)
Michael Licker (pro hac vice forthcoming)
Rachel C. Hutchinson (pro hac vice
forthcoming)
FOLEY HOAG LLP
155 Seaport Blvd.
Boston, Massachusetts 02210
Telephone: [phone]
Fax: [phone]
Jennifer Levi (pro hac vice forthcoming)
Mary L. Bonauto (pro hac vice forthcoming)
GLBTQ LEGAL ADVOCATES & DEFENDERS
30 Winter St., Ste. 800
Boston, Massachusetts 02108
Telephone: [phone]
Fax: [phone]
Shannon P. Minter (pro hac vice forthcoming)
Amy Whelan (pro hac vice forthcoming)
Chris Stoll (pro hac vice forthcoming)
NATIONAL CENTER FOR LESBIAN RIGHTS
870 Market St., Ste. 370
San Francisco, California 94102
Telephone: [phone]
Fax: [phone]

Respectfully submitted,
/s/ Kevin M. Lamb
Paul R.Q. Wolfson (D.C. Bar No. 414759)
Kevin M. Lamb (D.C. Bar No. 1030783)
WILMER CUTLER PICKERING
HALE & DORR LLP
1875 Pennsylvania Ave. N.W.
Washington, D.C. 20006
Telephone: [phone]
Fax: [phone]
Alan E. Schoenfeld (pro hac vice)
WILMER CUTLER PICKERING
HALE & DORR LLP
7 World Trade Center
250 Greenwich St.
New York, New York 10007
Telephone: [phone]
Fax: [phone]
Christopher R. Looney (pro hac vice
forthcoming)
Harriet Hoder (pro hac vice forthcoming)
Adam M. Cambier (pro hac vice forthcoming)
WILMER CUTLER PICKERING
HALE & DORR LLP
60 State Street
Boston, Massachusetts 02109
Telephone: [phone]
Fax: [phone]
Nancy Lynn Schroeder (pro hac vice
forthcoming)
WILMER CUTLER PICKERING
HALE & DORR LLP
350 S. Grand Ave., Ste. 2100
Los Angeles, California 90071
Telephone: [phone]
Fax: [phone]
Attorneys for Plaintiffs

20