Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security | |
Signed by | Donald Trump on August 25, 2017 |
---|---|
Federal Register details | |
Federal Register document number | 2017-18544 |
Publication date | August 30, 2017 |
Document citation | 41319 |
Summary | |
Military service by transgender individuals |
The Presidential Memorandum on Military Service by Transgender Individuals, officially the Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security, is the 27th presidential memorandum signed by U.S. President Donald Trump on August 25, 2017. The intent was to prevent transgender people from serving in the U.S. military, on the basis that they would be a financial burden due to sex reassignment procedures and associated costs. Federal courts delayed the implementation of this rule by issuing four injunctions. On January 22, 2019, however, the U.S. Supreme Court allowed the Trump administration's ban to take effect. [1]
On October 30, 2017, in the case of Jane Doe v. Trump , Judge Colleen Kollar-Kotelly granted the plaintiffs a preliminary injunction on the provisions of the memorandum prohibiting open military service and enlistment of transgender people. [2] On November 21, 2017, in the case of Stone v. Trump , Judge Marvin J. Garbis granted the plaintiffs a preliminary injunction on the entirety of the Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security. [3] Also that day, the United States Department of Justice appealed the preliminary injunction in the case of Jane Doe v. Trump. [4] The Pentagon's six-month delay on accession of transgender individuals into military service expired January 1, 2018. [5]
The original policy, which this Memorandum replaced, had been blocked in 2017 (Jane Doe v. Trump), when it was ruled that as far as could be seen, "all of the reasons proffered by the president for excluding transgender individuals from the military in this case were not merely unsupported, but were actually contradicted by the studies, conclusions and judgment of the military itself". [6] [7] The 2018 Memorandum and policy superseding this Memorandum was itself stayed on 13 April 2018 when a Washington court ruled in Karnoski vs. Trump (Western District of Washington), that the 2018 Memorandum essentially repeated the same issues as its predecessor order from 2017, that transgender service members (and transgender individuals as a class) were a protected class entitled to strict scrutiny of adverse laws (or at worst, a quasi-suspect class), and ordered that matter continue to a full trial hearing on the legality of the proposed policy. [8]
On January 25, 2021, Trump's successor Joe Biden signed an executive order which revoked the transgender military ban. [9]
On August 29, 2017, Secretary James Mattis announced that currently serving transgender troops would be allowed to remain in the armed services, pending further study. Mattis stated he would set up a panel of experts from the Departments of Defense and Homeland Security to provide recommendations on implementing the President's policy direction. [11]
On August 9, 2017, the first of four lawsuits was filed in United States District Court seeking to block the Presidential Memorandum from being implemented. [12] [13]
On August 9, 2017, five transgender United States military personnel filed a lawsuit, Jane Doe v. Trump. They sued Trump and top Pentagon officials over the proposed banning of transgender people from serving in the military. The suit asks the court to prevent the ban from going into effect, [12] [13] under the auspices of the equal protection and due process clauses of the Fifth Amendment. [14] The suit was filed on their behalf by two major LGBT-rights organizations, GLBTQ Legal Advocates & Defenders (GLAD) and the National Center for Lesbian Rights, who filed a petition in the United States District Court in Washington. [13] [14] On August 31, 2017, the plaintiffs applied for a preliminary injunction on the proposed ban, stating "it is unconstitutional" and that "Plaintiffs have suffered serious and irreparable harms that will continue absent this Court's intervention." [15] Also on August 31, three former secretaries of military services, Eric Fanning, Ray Mabus, and Deborah Lee James, submitted declarations in support of the plaintiffs. [16]
On October 4, the Civil Division of the Department of Justice filed a motion to dismiss the amended complaint in Jane Doe v. Trump and to oppose the application for a preliminary injunction, arguing instead "that challenge is premature several times over" and that Secretary Mattis's Interim Guidance, issued on September 14, 2017, protects currently-serving transgender personnel from involuntary discharge or denial of reenlistment. [17] On October 30, 2017, Judge Colleen Kollar-Kotelly granted the plaintiffs a preliminary injunction on the provisions of the memorandum prohibiting open military service and enlistment of transgender people. [2] The Pentagon's six-month delay on accession of transgender individuals into military service expires January 1, 2018. [18] In the ruling, Judge Kollar-Kotelly noted the defendants' motion to dismiss the case was "perhaps compelling in the abstract, [but] wither[s] away under scrutiny." [19] The ruling effectively reinstated the policies established prior to President Trump's tweets announcing the reinstatement of the ban, namely the retention and accession policies for transgender personnel effective on June 30, 2017. However, the court denied a preliminary injunction against the ban on government-funded sex reassignment surgery for service members "because no Plaintiff has demonstrated that they are substantially likely to be impacted by this directive." [2] [19] On November 21, 2017, the United States Department of Justice appealed the preliminary injunction in the case of Jane Doe v. Trump. [4] [10]
On January 4, 2019, the court lifted the injunction. [20]
On August 28, 2017, the American Civil Liberties Union (ACLU) of Maryland filed a federal lawsuit, Stone v. Trump , on behalf of several transgender military service members, alleging that the ban violated their equal protection rights. [21] [22]
On November 21, 2017, Judge Marvin J. Garbis granted the Plaintiffs' motion for preliminary injunction on the entirety of the Presidential Memorandum of August 25, [3] stating in his Order "[t]he lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest." [23] : 44
Also on August 28, Lambda Legal filed a federal lawsuit, Karnoski v. Trump , in Seattle on behalf of three transgender soldiers, the Human Rights Campaign, and the Gender Justice League, alleging that the ban violated equal protection, due process and free speech protections. [24] On December 11, 2017, Judge Marsha J. Pechman issued a preliminary injunction blocking the Presidential Memorandum of August 25, [25] stating the "Defendants have failed to demonstrate that the policy prohibiting transgender individuals from serving openly is substantially related to important government interests" and "the prohibition on military service by transgender individuals was announced by President Trump on Twitter, abruptly and without any evidence of considered reason or deliberation." [26] : 18
The preliminary ruling was affirmed on 13 April 2018, and the policy stayed, in Karnoski vs. Trump (Western District of Washington), when the court ruled that the 2018 memorandum essentially repeated the same issues as its predecessor order from 2017, that transgender service members (and transgender individuals as a class) were a protected class entitled to strict scrutiny of adverse laws (or at worst, a quasi-suspect class), and ordered that matter continue to a full trial hearing on the legality of the proposed policy. [27] [28] [29] [30]
On September 5, 2017, Equality California (EQCA) filed a lawsuit, Stockman v. Trump in United States District Court for the Central District of California against the ban; the lawsuit includes four named and three unnamed transgender plaintiffs. [31] In the complaint, which seeks an immediate injunction based on the Fifth Amendment, EQCA noted "the stated bases offered in support of Defendants' August 25 Directive are pretextual, arbitrary, capricious, and unsupported by facts, evidence, or analysis" and that "transgender people have been serving openly [since 2016] without incident or any negative impact upon military readiness, lethality, unit cohesion, or the national defense generally." [32] Judge Jesus Bernal issued an order granting the preliminary injunction and denying the motion to dismiss on December 22, 2017, writing the defendants' "justifications fall far short of exceedingly persuasive" and characterizing the ban as causing irreparable harm since "[t]here is nothing any court can do to remedy a government-sent message that some citizens are not worthy of the military uniform simply because of their gender." [33] : 19–20
On September 15, 2017, a bipartisan bill (S. 1820) was introduced by senators John McCain (R-AZ), Jack Reed (D-RI), Kirsten Gillibrand (D-NY), and Susan Collins (R-ME) to prohibit involuntarily separating or denying re-enlistment of transgender troops solely on the basis of gender identity. [34] During his testimony before the Senate, the highest-ranking uniformed officer of the United States military, General Joseph Dunford, chair of the Joint Chiefs of Staff, announced his advice that any troops who have served "with honor and value" should continue to serve, and that gender identity is not a credible reason for involuntary discharge. [35] [36] A bipartisan bill with nearly identical text (H.R. 4041) was introduced in the House on October 12, 2017. It was sponsored by Rep. Jackie Speier (D-CA) and co-sponsored by Charles Dent (R-PA), Susan Davis (D-CA), Ileana Ros-Lehtinen (R-FL), Adam Smith (D-WA), and Kyrsten Sinema (D-AZ). [37]
As requested by the memorandum of August 25, Secretary Mattis submitted a memorandum and report regarding military service by transgender individuals. The United States Secretary of Homeland Security, Kirstjen Nielsen, concurred with Mattis's recommendations as applied to the Coast Guard. One of the recommendations made was "that transgender persons with a history or diagnosis of gender dysphoria -- individuals who the policies state may require substantial medical treatment, including medications and surgery -- are disqualified from military service except under certain limited circumstances." On March 23, 2018, President Trump announced the prior memorandum of August 25 was revoked. With respect to future policies, the memorandum of March 23 went on to declare the Secretaries of Defense and Homeland Security "may exercise their authority to implement any appropriate policies concerning military service by transgender individuals." [38]
On January 25, 2021, U.S. President Joe Biden, Trump's successor, met with Secretary of Defense Lloyd Austin and signed an executive order which repealed the transgender military ban. [9]
Reed Charles O'Connor is a United States district judge of the United States District Court for the Northern District of Texas. He was nominated by President George W. Bush in 2007.
Robert Lewis Hinkle is a senior United States district judge of the United States District Court for the Northern District of Florida.
Aleta Mae Grillos Arthur Trauger is a United States district judge of the United States District Court for the Middle District of Tennessee. As of May 1, 2024, her rulings have set 117 precedents of case law.
Deferred Action for Childhood Arrivals (DACA) is a United States immigration policy that allows some individuals who, on June 15, 2012, were physically present in the United States with no lawful immigration status after having entered the country as children at least five years earlier, to receive a renewable two-year period of deferred action from deportation and to be eligible for an employment authorization document.
Hedges v. Obama was a lawsuit filed in January 2012 against the Obama administration and members of the U.S. Congress by a group including former New York Times reporter Christopher Hedges, challenging the National Defense Authorization Act for Fiscal Year 2012 (NDAA). The legislation permitted the U.S. government to indefinitely detain people "who are part of or substantially support Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States". The plaintiffs contended that Section 1021(b)(2) of the law allows for detention of citizens and permanent residents taken into custody in the U.S. on "suspicion of providing substantial support" to groups engaged in hostilities against the U.S. such as al-Qaeda and the Taliban respectively that the NDAA arms the U.S. military with the ability to imprison indefinitely journalists, activists and human-rights workers based on vague allegations.
Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), sometimes called Deferred Action for Parental Accountability, was a planned United States immigration policy to grant deferred action status to certain undocumented immigrants who have lived in the United States since 2010 and have children who are either American citizens or lawful permanent residents. It was prevented from going into effect. Deferred action would not be legal status but would come with a three-year renewable employment authorization document and exemption from deportation. DAPA was a presidential executive action, not a law passed by Congress.
United States v. Texas, 579 U.S. ___ (2016), is a United States Supreme Court case regarding the constitutionality of the Deferred Action for Parents of Americans (DAPA) program.
Not all armed forces have policies explicitly permitting LGBT personnel. Generally speaking, Western European militaries show a greater tendency toward inclusion of LGBT individuals. As of 2022, more than 30 countries allow transgender military personnel to serve openly, such as Argentina, Australia, Austria, Belgium, Bolivia, Brazil, Canada, Chile, Czechia, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Israel, Japan, Mexico, the Netherlands, New Zealand, Norway, Spain, Sweden, Switzerland, Ukraine and the United States. Cuba and Thailand reportedly allowed transgender service in a limited capacity.
Executive Order 13769 was signed by U.S. President Donald Trump on January 27, 2017, and quickly became the subject of legal challenges in the federal courts of the United States. The order sought to restrict travel from seven Muslim majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The plaintiffs challenging the order argued that it contravened the United States Constitution, federal statutes, or both. On March 16, 2017, Executive Order 13769 was superseded by Executive Order 13780, which took legal objections into account and removed Iraq from affected countries. Then on September 24, 2017, Executive Order 13780 was superseded by Presidential Proclamation 9645 which is aimed at more permanently establishing travel restrictions on those countries except Sudan, while adding North Korea and Venezuela which had not previously been included.
State of Washington and State of Minnesota v. Trump, 847 F.3d 1151, was a lawsuit that challenged the constitutionality of Executive Order 13769, issued by U.S. president Donald Trump.
Transgender people have served or sought to serve in the United States military. The subject began to engender some political controversy starting with transgender service members being banned in 1960 and possibly earlier. This controversy came to a head in the 2010s and was subjected to relatively rapid changes for the next few years. As of 2021, transgender individuals are expressly permitted to serve openly as their identified gender. A brief timeline is as follows:
Stone v. Trump (1:17-cv-02459-MJG) was a lawsuit filed on August 28, 2017, in the United States District Court for the District of Maryland. The lawsuit alleged that President Donald Trump's ban on transgender personnel joining the U.S. military violated their equal protection and due process rights. The American Civil Liberties Union (ACLU) of Maryland filed the suit on behalf of Petty Officer First Class Brock Stone, an 11-year veteran of the U.S. Navy, and several other transgender service members. In addition to President Trump, the suit named as defendants the Secretaries of Defense, the Army, the Navy, and the Air Force.
Jane Doe v. Trump (1:17-cv-01597-CKK) was a lawsuit filed on August 9, 2017, and decided January 4, 2019 in the United States District Court for the District of Columbia. The suit sought to block Donald Trump and top Pentagon officials from implementing the proposed ban on military service for transgender people under the auspices of the equal protection and due process clauses of the Fifth Amendment. The court ruled that the Trump administration's policy should not be blocked. Nonetheless, the Trump administration's policy continued to be blocked due to three preliminary injunctions against it that were not part of this lawsuit and which remained in effect as of the lawsuit's conclusion on January 4, 2019.
Stockman v. Trump (5:17-cv-01799-JGB-KKx) is an old lawsuit filed on September 5, 2017, in the United States District Court for the Central District of California. The suit, like the similar prior suits Jane Doe v. Trump, Stone v. Trump, and Karnoski v. Trump, sought to block Trump and top Pentagon officials from implementing the proposed ban on military service for transgender people under the auspices of the equal protection and due process clauses of the Fifth Amendment. The suit was filed on the behalf of four named and three anonymous transgender plaintiffs by Equality California (EQCA). Two other major LGBT-rights organizations which had filed Jane Doe v. Trump, GLBTQ Legal Advocates & Defenders (GLAD) and the National Center for Lesbian Rights, joined the suit as co-counsels in October 2017.
Karnoski v. Trump (2:17-cv-01297-MJP) was a lawsuit filed on August 29, 2017, in the United States District Court for the Western District of Washington. The suit, like the similar suits Jane Doe v. Trump, Stone v. Trump, and Stockman v. Trump, sought to block Trump and top Pentagon officials from implementing the proposed ban on military service for transgender people under the auspices of the equal protection and due process clauses of the Fifth Amendment. The suit was filed on the behalf of three transgender plaintiffs, the Human Rights Campaign, and the Gender Justice League by Lambda Legal and OutServe-SLDN.
The Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security Regarding Military Service by Transgender Individuals is the 43rd presidential memorandum signed by U.S. President Donald Trump on March 23, 2018.
Wolf v. Vidal, 591 U.S. ___ (2020), was a case that was filed to challenge the Trump Administration's rescission of Deferred Action for Childhood Arrivals (DACA). Plaintiffs in the case are DACA recipients who argue that the rescission decision is unlawful under the Administrative Procedure Act and the Fifth Amendment. On February 13, 2018, Judge Garaufis in the Eastern District of New York addressed the question of whether the government offered a legally adequate reason for ending the DACA program. The court found that Defendants did not provide a legally adequate reason for ending the DACA program and that the decision to end DACA was arbitrary and capricious. Defendants have appealed the decision to the Second Circuit Court of Appeals.
Directive-type Memorandum-19-004, "Military Service by Transgender Persons and Persons with Gender Dysphoria", was a memorandum issued by the United States Department of Defense (DoD) prohibiting most transgender individuals from serving or enlisting in the United States Armed Forces and the DoD. The DTM took effect on April 12, 2019, under the presidency of Donald Trump, signed by David Norquist. Originally scheduled to expire on March 12, 2020, it was extended until September 12, 2020. Before it expired, it was replaced by Department of Defense Instruction 1300.28, which took effect on September 4, 2020, signed by Matthew Donovan.
In United States law, a nationwide injunction is injunctive relief in which a court binds the federal government even in its relations with nonparties. In their prototypical form, nationwide injunctions are used to restrict the federal government from enforcing a statute or regulation.
U.S. WeChat Users Alliance (USWUA) v. Trump was a court case pending before the United States District Court for the Northern District of California. The plaintiffs won a preliminary injunction on September 20, 2020, blocking the Trump administration's ban order against WeChat based on concerns raised about harm to First Amendment rights and the hardships imposed on a minority community using the app as a primary means of communication. The lawsuit was dismissed in July 2021, following the Biden Administration's rescission of the executive order.