Transcript of proceedings on motion to dismiss, Karnoski v Trump

Case 2:17-cv-01297-MJP Document 109 Filed 12/15/17 Page 1 of 52

UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON
____________________________________________________________

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RYAN KARNOSKI, et al.,
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)
)
Plaintiffs,
) No. 2:17-cv-01297-MJP
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vs.
) Seattle, WA
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DONALD J. TRUMP, et al.,
)
) Motion to Dismiss/Preliminary
Defendants,
) Injunction Hearing
)
) November 21, 2017
____________________________________________________________
VERBATIM REPORT OF PROCEEDINGS
BEFORE THE HONORABLE JUDGE MARSHA J. PECHMAN
UNITED STATES DISTRICT COURT
____________________________________________________________

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APPEARANCES:

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FOR THE PLAINTIFFS:

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PETER C. RENN
Lambda Legal Defense and
Education Fund, Inc.
4221 Wilshire Boulevard, Suite 280
Los Angeles, CA 90010-3512
prenn@lambdalegal.org

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NATALIE NARDECCHIA
Lambda Legal Defense and
Education Fund, Inc.
4221 Wilshire Boulevard, Suite 280
Los Angeles, CA 90010-3512
nnardecchia@lambdalegal.org
PETER E. PERKOWSKI
OutServe-SLDN, Inc.
c/o Perkowski Legal
445 S. Figueroa Street, Suite 3100
Los Angeles, CA 90071
peterp@outserve.org

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Case 2:17-cv-01297-MJP Document 109 Filed 12/15/17 Page 2 of 52

DEREK ALAN NEWMAN
Newman & Du Wors LLP
2101 Fourth Avenue, Suite 1500
Seattle, WA 98121
derek@newmanlaw.com

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SAMANTHA EVERETT
Newman & Du Wors LLP
2101 Fourth Avenue, Suite 1500
Seattle, WA 98121
samantha@newmanlaw.com

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JORDAN M. HEINZ
Kirkland & Ellis
300 North LaSalle
Chicago, IL 60654
jheinz@kirkland.com

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VANESSA BARSANTI
Kirkland & Ellis
300 North LaSalle
Chicago, IL 60654
vanessa.barsanti@kirland.com

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DANIEL I. SIEGFRIED
Kirkland & Ellis
300 North LaSalle
Chicago, IL 60654
daniel.siegfried@kirkland.com

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FOR THE STATE
OF WASHINGTON:

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LA ROND BAKER
American Civil Liberties Union of WA
901 Fifth Avenue, Suite 630
Seattle, WA 98164
lbaker@aclu-wa.org

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COLLEEN M. MELODY
Attorney General's Office
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
colleenm1@atg.wa.gov

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FOR THE DEFENDANTS:
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GERALD BRINTON LUCAS
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20531
brinton.lucas@usdoj.gov

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Case 2:17-cv-01297-MJP Document 109 Filed 12/15/17 Page 3 of 52

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RYAN BRADLEY PARKER
U.S. Department of Justice
950 Pennsylvania Avenue NW
WASHINGTON, DC 20531
ryan.parker@usdoj.gov

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Andrea Ramirez, CRR, RPR
Official Court Reporter
United States District Court
Western District of Washington
700 Stewart Street, Suite 17205
Seattle, WA 98101
andrea_ramirez@wawd.uscourts.gov

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Reported by stenotype, transcribed by computer

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Case 2:17-cv-01297-MJP Document 109 Filed 12/15/17 Page 4 of 52

Karnoski v. Trump, 11/21/17
THE CLERK:

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This is in the matter of Ryan Karnoski

vs. Donald J. Trump, Cause Number C17-1297-MJP.
Counsel, please rise and make your appearance for the
record.
MR. RENN:

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Good morning, Your Honor.

Peter Renn, for

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plaintiffs.

Also appearing on behalf of plaintiffs are Natalie

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Nardecchia, Peter Perkowski, Derek Newman, Samantha Everett,

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Jordan Heinz, Vanessa Barsanti, and Daniel Siegfried.
MS. BAKER:

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Good afternoon, Your Honor.

La Rond

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Baker, for the State of Washington, plaintiff intervenor, and

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also with Ms. Colleen Melody.

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THE COURT:

Good afternoon.

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MR. LUCAS:

Good afternoon, Your Honor.

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Lucas, for defendants.
THE COURT:

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Brinton

With me is Ryan Parker.

All right.

We're here this afternoon for

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two different motions.

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dismiss.

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preliminary injunction.

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you have given me, as well as the attendant affidavit, so I do

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believe that I'm ready to hear you argue this afternoon.

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The first is the government's motion to

The second is the plaintiff's motion for a
I have read all of the materials that

Have you made a decision amongst yourselves as to how

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you're going to divide your time, or what issues you're going

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to take up first?

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MR. RENN:

Your Honor, plaintiffs have conferred with

the State of Washington.

We are happy to share five minutes

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Karnoski v. Trump, 11/21/17
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out of our time so Ms. Baker can present argument on behalf of

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the State.
MR. LUCAS:

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Your Honor, we have no objection to that,

and we're happy to take up both motions in a single argument.
THE COURT:

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All right.

Then I believe that the

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government -- well, what I would say is, the government gets to

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go first, because if there is no standing, there is no

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preliminary injunction.

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prejudging whether there will be a preliminary injunction.

That's the rationale.

So I'm not

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simply procedurally saying, that's where we are.

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first thing that we need to attend to.

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So I'm going to let the government go first.

I'm

That's the

If the

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plaintiffs wish to respond to the standing argument, they can

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do so.

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injunction argument, that's fine too.

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haven't divided yourselves up that way.

If they want to respond inside their preliminary

MR. RENN:

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No, Your Honor.

But I take it you

But we're happy to

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address both at the same time, when it's our turn to present

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argument.

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THE COURT:

Okay.

Then this is what I'm going to

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suggest that you're going to do, because each of you have been

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the plaintiffs on one, which means that the government gets to

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argue first and last on standing; the plaintiffs get to argue

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first and last on preliminary injunction.

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to argue twice.

How's that?

Okay?

So you're each going

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All right.

Let's go.

MR. LUCAS:

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Good afternoon, Your Honor.

May it

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please the Court, Brinton Lucas for the United States.

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like to reserve five minutes for rebuttal.

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I'd

I'd like to start by addressing an incorrect assumption

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underlying plaintiff's challenge, namely that the presidential

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memorandum mandates discharge of currently serving transgender

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individuals on March 23, 2018.

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both the memorandum itself, as well as Secretary Mattis'

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That premise is contrary to

response.
To start, the memorandum itself does not require the

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discharge of current service members on March 21, 2018.

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Instead, it gives Secretary Mattis the authority to study and

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resolve that issue.

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attention to Section 3 of the memorandum, which expressly

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delegates authority to Secretary Mattis to, quote, "determine

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how to address transgender individuals currently serving in the

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United States military."

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the Secretary has made that determination, no action may be

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taken against such individuals.

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THE COURT:

Specifically, I'd like to point your

And it goes on to specify that until

Well, Counsel, isn't that simply saying,

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in the presidential memorandum, "I want you to make a plan for

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how to get them out"?

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MR. LUCAS:

No, Your Honor.

take the memorandum to suggest that.

Respectfully, we don't
Instead, we think it

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leaves it open to the Secretary's discretion.

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work through the reasons why.

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And I'd like to

I think specifically the fact that it starts and addresses

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saying that Secretary Mattis has the discretion to determine

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how to deal with transgender individuals serving in the

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military does not just suggest that this is a study into how

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and when to discharge individuals.

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exactly how Secretary Mattis' response to this memorandum

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confirms that a more fulsome study is being conducted.

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THE COURT:

And I'd like to point

Well, Counsel, you're going to need to

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back up, then, and address the President's words when he says,

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"After consultation with my generals and military experts,

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please be advised that the United States government will not

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accept or allow transgender individuals to serve in any

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capacity in the U.S. military."

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There's nothing ambiguous about that statement.
MR. LUCAS:

We recognize that, Your Honor.

But the

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President did follow up those statements on Twitter with a very

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specific and thorough presidential memorandum that the military

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has taken as operative, and is treating it.

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this Court, you don't need to necessarily ignore the statements

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on Twitter, but we would suggest that the Court look carefully

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at the presidential memorandum, which goes through these very

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specifically.

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THE COURT:

So we suggest to

But doesn't the tweet inform you as to

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what the President is thinking, when he basically says to them

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that they have to have a study done, that he's talking about

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how to get transgender people out, or keep them out of the

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military?

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President's tweet, if that's not something that you can rely

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upon?

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I mean, what am I supposed to do with the

MR. LUCAS:

Your Honor, we think the better course is

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to look at the President's subsequent statements in the

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memorandum.

And we don't think that, reading the memorandum as

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a whole, that it is ambiguous.

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in the memorandum, Your Honor, we would urge the Court to take

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a look and see what the military has done and what defendants

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are currently viewing the memorandum as.

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THE COURT:

But even if there is ambiguity

So you're telling me, as the Department

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of Justice, that I should ignore the President's statements to

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the public?

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MR. LUCAS:

No, Your Honor.

We're not saying you

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have to ignore them, but we do suggest that you look at what

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the President followed up his statements with, which are a

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specific presidential memorandum that contains directives.

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we think that the best reading of this memorandum is informed

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by a careful analysis of each of the provisions in it,

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alongside with the Department of Defense's response.

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THE COURT:
memorandum.

All right.

And

Well, let's go through the

And please point out to me where you believe that

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the President is saying that he wants a memorandum to see how

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they're going to stay in the military, as opposed to how it is

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he's going to get them out.

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MR. LUCAS:

Certainly, Your Honor.

So I started with Section 3.

But I would also point you

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to the first provision of the memorandum, which is

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Section 1(a), which talks about how the President wants further

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study of this issue.

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read in light of Section A, which instructs Secretary Mattis to

And so we think Section 3 needs to be

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conduct a further study of this issue.

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what Secretary Mattis is doing right now.

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And indeed, that is

And I'd like to point you to several things that he's

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issued in response:

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confirms that no action shall be taken to involuntarily

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separate or discharge an otherwise qualified service member

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solely on the basis of gender dysphoria diagnosis or

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transgender status, quote, "until I promulgate DOD's final

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policy in this matter."

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Secretary Mattis has the final decision-making authority as to

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what happens to currently serving transgender individuals.

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First, his interim guidance, which

And we read that to suggest that

But even beyond that, Your Honor, Secretary Mattis has

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begun a study and implementation plan in accordance with

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Section A of the memorandum.

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plan will address both accessions of transgender individuals

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and transgender individuals that are currently serving.

And that study and implementation

And as

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part of this study, Secretary Mattis has established a panel of

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experts.

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of Defense and the Vice-Chairman of the Joint Chiefs of Staff.

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And these members will bring mature experience, notably in

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deployability and combat, and will assemble and thoroughly

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analyze all data, both quantifiable and nonquantifiable.

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And those experts will be led by the Deputy Secretary

And what this tells us, Your Honor, is that there wouldn't

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be a need to conduct such a thorough study using such

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high-ranking DOD officials if the sole question was just simply

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how to get the transgender service members out of the military.

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THE COURT:

And where do I get that understanding

MR. LUCAS:

Well, Your Honor, the Defense Department

from?

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just simply would not devote this many resources to the study

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of this issue, and considering all these factors, if it were

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simply a matter of discharge is preordained, and we're not

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going to consider this issue.

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is taking this very seriously, and going through and studying

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these issues, and devoting a significant amount of resources to

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them.
THE COURT:

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We think the Defense Department

And apparently the Defense Department did

that previously.

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MR. LUCAS:

That is true, Your Honor, yes, but --

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THE COURT:

So why would the Defense Department do it

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twice?

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MR. LUCAS:

Your Honor, the Defense Department is

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doing it twice because the President was concerned about the

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study previously, and he wanted further inquiry to be made into

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this issue.

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predict the outcome of this particular study, or what the

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Defense Department will ultimately conclude.

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that it is not a foreordained conclusion as to what will

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ultimately occur, or what the Defense Department will

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ultimately decide.

And that is what's going to happen.

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THE COURT:

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President changed his position?

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MR. LUCAS:

But I will say

Is there any way to know why the

Your Honor, I can't speak to that.

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don't know.

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aware that I could comment about it.

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I can't

I

And I don't know if I -- I mean, if I did, I'm not

THE COURT:

But --

So how can you comment on what the

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committee is going to do if you don't know what prompted the

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committee to be formed?

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MR. LUCAS:

Well, we do know what prompted the

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committee to be formed here, Your Honor, is that the President

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did direct them to study this issue, in Section 1(a) of this

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memorandum, and Secretary Mattis then formed a committee and

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ordered them to do this.

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THE COURT:

Let's talk about Section 2(b).

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MR. LUCAS:

Yes, Your Honor.

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THE COURT:

2(b) indicates -- this is the one section

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that was not ruled upon by the judge in Washington, D.C.
MR. LUCAS:

Yes, Your Honor.

And I would like to

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inform you that, earlier today, the District Court in Maryland

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issued an injunction enjoining both the accession directive and

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the retention directive, as well as this directive, as well.

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THE COURT:

All right.

was enjoined.

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MR. LUCAS:

Yes.

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THE COURT:

All right.

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So this particular directive

Let's go back to my question.

2(b) talks about, "halt all use of DOD or DHS resources to

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fund sex reassignment surgical procedures for the military

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personnel, except to the extent necessary to protect the health

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of an individual who has already begun a course of treatment to

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reassign his or her sex."

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It's my understanding that Plaintiffs Stephens and Muller

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have a plan for reassignment of their gender.

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Muller's case, it was halted.

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And at least in

Doesn't that present harm that is actionable, since the
surgery was canceled?
MR. LUCAS:

No, Your Honor.

With respect to Chief

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Warrant Officer Muller, under the interim guidance, she can

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reschedule surgery, and she's shown an interest in doing so.

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We've informed her.

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these plaintiffs right now.

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initial confusion when -- at the start of when the interim

And currently, there's nothing applying to
I think there may have been some

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guidance was being promulgated.

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plaintiffs may still seek to get this particular surgical

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treatment done.
THE COURT:

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But right now, these

But don't we look at this at the moment

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that the case was filed and her surgery was canceled?

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hasn't she sustained a harm in being unable to proceed with her

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surgery, and the emotional problems that that may cause, and

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worry, and upset?

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you could have something and then take it away?

Doesn't that give one standing, to be told

MR. LUCAS:

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So

Your Honor, right now, though, I believe

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Chief Warrant Officer Muller is currently exploring the

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possibility of receiving the surgery, and is in consultation

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with her commanding officer.
THE COURT:

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But that's not my question.

My question is, what point in time do we view this?

Do

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you view the standing issue at the time that the lawsuit is

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filed?
MR. LUCAS:

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Your Honor, I'm not sure if -- and I'd

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have to go back and take a look.

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specific allegation at the particular complaint, or -- but we

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do consider the facts, Your Honor, and declarations, even on a

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motion to dismiss, when assessing standing.

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Plaintiff Muller, right now, is suffering any injury.
THE COURT:

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that?

I'm not sure if this was a

And I don't think

And do you have an affidavit that says

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MR. LUCAS:

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Well, we do have an affidavit -- a

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declaration from her commanding officer, Easley, who says that

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under the interim guidance, she can reschedule surgery, but has

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not -- and has shown an interest in doing so.
THE COURT:

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But my point is, apparently at the time

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of the filing of the suit and the filing of her initial

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declaration, she had surgery scheduled that was canceled.

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MR. LUCAS:
assertion she made.

Yes, Your Honor.

We believe that's the

But we do believe right now, and as we ask

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Your Honor to consider our affidavits in considering our motion

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to dismiss, that she can get surgery at this point, and has,

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indeed, shown an interest in doing so.
THE COURT:

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Well, if you're talking about standing,

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is standing a moveable point in time?

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telling me that standing can change as you -- as you compromise

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or settle with each plaintiff, or give them the surgery that

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they desire?
MR. LUCAS:

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Yes, Your Honor.

In other words, are you

There could be

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intervening events that moot the case.

And we think that there

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have been intervening factual developments.

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first filed their complaint even before the interim guidance

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was released, and there's been a lot that's happened since

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then.

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interim guidance or what current measures are being taken by

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the Defense Department to address their concerns.

The plaintiffs

And when they amended it, they didn't really address the

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THE COURT:

All right.

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MR. LUCAS:

But, Your Honor, if I may return to the

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retention issue for a moment.

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Go ahead.

In addition to Secretary Mattis' response to all of this,

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I'd also like to point to specifically what the sex

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reassignment surgery directive suggests about retention.

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we think that if the memorandum did, indeed, mandate that

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discharge had to occur on March 23, this directive, and its

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exception, wouldn't serve any purpose, because this directive

And

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only takes effect on March 23.

So if all of the transgender

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individuals currently serving in the military were going to be

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simply discharged on that date, there would have been no need

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for this sex reassignment surgery directive, or its exception,

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going forward.

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that, even within the presidential memorandum itself, the

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outcome of the study is not preordained.

So we think this is yet another clue suggesting

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Now, Your Honor, I realize the plaintiffs have relied

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heavily on Section 1(b) of the memorandum, which instructs

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Secretary Mattis to return to the military's longstanding

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policy and practice on service by transgender individuals.

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we'd like to point your attention to the fact that 1(b), in

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that statement and directive, comes with a caveat, quote,

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"until such time as a sufficient basis exists upon which to

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conclude that terminating that policy and practice would not

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have the negative effects discussed in Section 1(a)."

But

And this

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is consistent with Section 1(a), which does call for further

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study of this issue.

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this issue and may provide and conclude that the transgender

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individuals currently serving do not impose these negative

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effects raised in Section 1(a).

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THE COURT:

And Secretary Mattis is, indeed, studying

One moment, please.

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Could I have everyone please have a seat?

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Go ahead.
MR. LUCAS:

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Thank you.

Thank you, Your Honor.

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So in light of this, we think that plaintiffs simply lack

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standing to challenge the memorandum with respect to currently

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serving transgender individuals.

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current service members are going to be discharged on the basis

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of their transgender status.

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speculative, at this point, what will occur on March 23, 2018,

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what Secretary Mattis will ultimately conclude and decide.

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we think that the issue should be revisited then.
THE COURT:

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It's undisputed that no

And we think that it's

And

Isn't there damage simply by having your

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Commander in Chief declare that you're unfit and that he wants

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you out?

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MR. LUCAS:

Your Honor, two points to respond to

that, if I may.
First, in the presidential memorandum, the President has

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specified that he simply wants more study into this issue, and

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that process is currently going on.

And that's what the

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plaintiffs are challenging, and we think that is not the same

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as just simply saying, "We want you all out immediately."

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But secondly, Your Honor, we also read Allen vs. Wright,

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the Supreme Court decision, to say that any sort of stigmatic

5

injury that plaintiffs might be alleging, they have to actually

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show a concrete effect to themselves.

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guidance, they are fully protected from having any adverse

8

action taken against them while they're serving in the

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military.

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And under the interim

So we don't think that that is ultimately a

cognizable injury, for those two reasons.
THE COURT:

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Well, there's at least one plaintiff in

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this suit that is claiming that they have not been promoted, or

13

that their promotional papers have been ignored.

14

Isn't that damage?
MR. LUCAS:

15

Yes, Your Honor.

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that particular plaintiff.

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Schmid.

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and if I may move there, right now.

19

I would like to address

I believe that's Staff Sergeant

And that's with respect to the accessions directive,

And so the accessions directive -- and that's in Section

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2(a) -- directs the Defense Department to maintain its

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longstanding accessions policy, which generally barred

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transgender individuals from joining the military, but also

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included a waiver process, past January 1, 2018, until

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Secretary Mattis studies the issue and provides the President

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with a convincing recommendation to abandon this policy.

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Now, because the accession policy allows for

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individualized waivers, and none of the plaintiffs have sought

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one, we believe it's speculative that the accessions policy

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will actually have any effect on them.
THE COURT:

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6

Has anybody ever sought one and been

granted it?
MR. LUCAS:

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Not to my knowledge, Your Honor, but we

8

don't think that's dispositive in this case.

9

now, the policy is currently in flux.

I mean, right

Things are being

10

studied.

And I would point you to the interim guidance where

11

Secretary Mattis expressly states that this is subject to the

12

waiver process.
THE COURT:

13

So if nobody has done it, and nobody has

14

ever been granted a waiver, why would you want to make someone

15

go through a needless process?

16

MR. LUCAS:

Your Honor, we don't think it's a

17

needless process.

18

Secretary Mattis has provided for that in his interim guidance.

19

And so if plaintiffs want to apply for waiver, we urge them to

20

do so and see if the process happens.

21

guidance that Secretary Mattis has given, that a waiver process

22

is available, and they can apply for it right now.
THE COURT:

23
24
25

We think that the waiver is available, and

waiver?

We're taking the

Well, why would somebody apply for a

Isn't this just like "blacks need not apply"?
MR. LUCAS:

No, Your Honor.

We take the point of --

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1

that plaintiffs have raised of all of these cases involving

2

competitive injury, but we don't think that those cases are

3

squarely on point.

4

cases, there was no dispute that the plaintiffs were otherwise

5

eligible to obtain the desired benefit.

6

concerned the matter of, they didn't want to apply, because

7

they didn't want to compete for the same benefit under the

8

particular policy.

9

And the reason why is, in all of those

Those cases simply

But here, it's unclear whether the plaintiffs could meet

10

all of the other requirements that would render them otherwise

11

eligible to be assessed into the military.

12
13

THE COURT:

Well, Counsel, you've got thousands of

transgender people who are already performing in the military.

14

Why is it that they would not -- are you telling me that

15

it's your position that these people would not be eligible to

16

compete because of some issue?

17

MR. LUCAS:

No, Your Honor.

All we're saying is, we

18

don't -- for especially the accessions plaintiffs, we don't

19

know whether there will be some other disqualifying factor.

20

There are many different requirements to be met before one can

21

assess into the military, and we simply just don't have that

22

information right now.

23
24
25

THE COURT:

So you're saying you don't know whether

they have bone spurs.
MR. LUCAS:

We don't know enough information, Your

19

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1

Honor, to make -- to be sure whether they could accede or not,

2

totally apart from the challenged accessions policy.

3

I would like to point you to Staff Sergeant Schmid, where

4

this issue is somewhat more concrete.

This is the member who's

5

applied to be a warrant officer.

6

accessions, but she's not applied for a waiver.

7

issue.

8

that would bar her from obtaining a position as a warrant

9

officer, and that is specifically her -- that she's exceeded

And she's applied for
So that's one

But even in addition to that, there's another issue

10

the maximum years of federal service allowed, under Army

11

regulation.

12

these are the kinds of examples where someone may not even be

13

eligible to accede into the military, and thus the accessions

14

policy may have no ultimate effect on them.

15

Now, a waiver is available for that, as well, but

And we realize, Your Honor, that plaintiffs do claim that

16

seeking a medical waiver would be futile.

They make this a

17

point of their argument.

But we think that rests on two

18

problematic assumptions.

First, as I discussed before, the

19

interim guidance does expressly provide that a waiver process

20

is available.

21

waiver process would be futile is because you cannot grant a

22

waiver for a retention-disqualifying condition.

23

assumes that Secretary Mattis will, indeed, conclude that

24

transgender status is a retention-disqualifying condition,

25

which we dispute and think is part of an ongoing study.

And second, plaintiffs argue that the reason the

But that

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1

So finally, Your Honor, I return to the sex reassignment

2

surgery directive and just address why plaintiffs don't have

3

standing to challenge that either.

4

Now, we know that the interim guidance provides that

5

current service members may receive funding for these

6

procedures.

7

occurred just last week.

8

Department will pay for these procedures if they are necessary

9

to protect the health of those who have already done a course

10
11

Indeed, as news reports indicate, such a surgery
But even after March 23, the Defense

of treatment to reassign their sex.
Now, the Doe court, in D.C., dismissed the claims

12

challenging this directive, because none of the plaintiffs had

13

shown they were likely to be affected by it.

14

the same is true here.

15

may all seek these surgeries now.

16

it's speculative whether they will ever be denied funding after

17

March 23.

18

begun a course of treatment to reassign their sex, and thus

19

they may qualify for this exception.

And we believe

First, the currently serving plaintiffs
And due to the exception,

All of the named service member plaintiffs have

20

Now, I realize that plaintiffs do argue that this

21

exception will not apply, because they read the exception to

22

cover only measures that would address complications arising in

23

surgery.

24

reading of the provision, and we are unaware of anything that

25

would support it.

But they offer nothing to support that particular

22

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1
2
3
4
5

THE COURT:

So as I understand it, this process

begins with a plan.
Are you telling me that the government is going to cover
all of the costs for anyone who has a plan?
MR. LUCAS:

Your Honor, I can't commit to ultimately

6

what the exception will cover in the future.

That is being

7

currently determined by the Defense Department.

8

that, right now, under the interim guidance, they may seek

9

funding for this particular surgery.

But I will say

And in the future, if

10

they've begun a plan, they may very well qualify for the

11

exception.

12
13
14

THE COURT:

Well, what does it mean to say "protect

the health of an individual who has already begun"?
MR. LUCAS:

Your Honor, DOD is currently resolving

15

what the scope of this exception will be.

I'm sorry.

I can't

16

give you a definitive answer.

17

take a very narrow reading of that.

18

to assume that that's the only reading, or that it is the

19

reading that DOD will ultimately adopt.

But I will say that plaintiffs
But we just have no basis

20

And finally, I would address Plaintiff Jane Doe, who

21

claims that surgery is necessary for her, but she's not sought

22

it, out of fear of discharge, and thus would not qualify for

23

the exception.

24
25

THE COURT:

Just a minute.

Everyone needs to have a seat, please.

23

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1
2

Go ahead.
MR. LUCAS:

Thank you, Your Honor.

3

But we read this theory to be foreclosed by the Supreme

4

Court's decision in Clapper vs. Amnesty International, which

5

held that a plaintiff can't manufacture standing by imposing

6

burdens on himself or herself based on fears, even reasonable

7

ones, of a speculative future harm.

8

position and our belief that it's simply speculative that

9

transgender individuals will be discharged from the military

10

following this study, we think that Plaintiff Jane Doe cannot

11

make -- somehow create standing to challenge the surgery

12

directive on the basis of her fears.

13
14
15
16

THE COURT:

And because it is our

Well, Jane Doe also talks about a fear of

talking to others in the military about her authentic feelings.
Isn't that a harm as well?
MR. LUCAS:

Your Honor, we don't think so.

Right

17

now, she's currently protected under the interim guidance.

18

action can be taken against her for talking, or expressing, or

19

doing any things along that nature.

20

speculative that any harm would occur in the future.

21

just don't know.

22

THE COURT:

No

And we think it's
We simply

Well, isn't it realistic to assume that

23

if the President's tweet goes into effect, if she or he

24

identifies themselves, that they run the risk of being severed

25

from the military?

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MR. LUCAS:

1

Your Honor, we don't take that to be the

2

position of the memorandum.

3

And we think that, if there's a risk, it's simply not

4

significant enough, or likely enough, or settled enough, to

5

create standing.

6

for a certainly impending harm, or at least a substantial risk

7

of harm, and we just don't think that is met here.

8
9
10
11

We think it is an open question.

Using the Supreme Court's language, it calls

THE COURT:

So you're not accepting that there could

be any emotional damage from having to live this particular
silence?
MR. LUCAS:

Your Honor, we understand the emotional

12

damage that plaintiffs have alleged, and we acknowledge that,

13

but we don't think it confers standing in this case.

14

right now, it's an uncertain policy.

15

resolved, soon, in a few months.

16

don't think that concern or worry over the outcome of the final

17

policy is a sufficient basis to create Article III standing.

Because

It's going to be

In the meantime, we just

18

THE COURT:

So if there is standing, is that a harm?

19

MR. LUCAS:

Well, for -- with respect to irreparable

20
21

injury, Your Honor, or -THE COURT:

The emotional distress from having to be

22

silent about one's life choices, or one's gender, is that a

23

harm that is compensable, if there's standing?

24
25

MR. LUCAS:

Your Honor, we're -- I think the whole

discussion of harm, and our consideration of it, has been done

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1

largely in the context of standing.

2

any sort of authority that would support saying that concern

3

over a future policy is a sufficient basis to create a harm, I

4

guess, either for standing or otherwise.

5

THE COURT:

And so we don't know of

So you're telling me that that's not a

6

harm that would -- that would confer damages.

7

would be the kind of harm, if one were in any regular tort

8

suit, that emotional distress would be one of the things that

9

would be compensated.

10
11

It certainly

Is this different?
MR. LUCAS:

Your Honor, I guess we don't -- because

12

of the speculative nature of this, we just don't see it as an

13

actual harm.

14

this, if we simply don't know what the final policy is,

15

especially under the particular terms of the presidential

16

memorandum.

17
18
19

And so I'm not sure how plaintiffs can create

THE COURT:

Now, am I correct in understanding that

the report needs to be back by February 21, I believe?
MR. LUCAS:

Yes.

Let me -- yes.

So February 21,

20

Secretary Mattis will provide the President with an

21

implementation plan.

22

THE COURT:

23
24
25

So we're probably 60 days away.

Are you still thinking that that is a speculative time
frame when these things will go into effect?
MR. LUCAS:

Yes, Your Honor.

The military is

25

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1

currently studying this and devoting a considerable amount of

2

resources to it.

3

a plan on the 21st, after he comes to his conclusions and

4

receives his expert recommendations.

5

the plan will take effect on March 23, 2018.

The Secretary will provide the President with

And then at that point,

6

THE COURT:

All right.

7

MR. LUCAS:

Thank you, Your Honor.

8

MR. RENN:

9

Thank you.

Good afternoon, Your Honor.

I'll turn first to standing.

And I'd like to address the

10

relevant facts that I think support plaintiffs' injury and

11

facts, and then turn separately to the reasons why plaintiffs

12

have standing to challenge each of the three components of the

13

ban with respect to retention, accession, and denial of medical

14

care.

15

The government's defense here is built on the fictional

16

premise that the President has not yet made a decision about

17

whether or not transgender people should be allowed to serve in

18

the military.

19

President has already made that decision, and all that's left

20

is for a subordinate to carry that plan out.

21

But the facts show quite plainly that the

First of all, the tweets, as Your Honor pointed out, make

22

exceptionally clear what the President meant here.

He said

23

that transgender people shall not be allowed to serve, quote,

24

"in any capacity in the military."

25

up here and argue that the President didn't mean what he said.

The government can't stand

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1

And as Your Honor noted, there's really no ambiguity in the

2

phrase "in any capacity."

3

of the policy change.

4

perhaps the clearest and most candid insight into his own

5

intentions.

6

The President, here, is the source

And so his words, unfiltered, provide

But even if we were to set aside the tweets and look just

7

at the memorandum, the memorandum mandates a return to the

8

pre-2016 policy.

9

directing the military, quote, "to return to the longstanding

It provides, in relevant part, that it is

10

policy and practice on military service by transgender

11

individuals that was in place prior to June 2016," end quote.

12

Notably, the memorandum does not ask the military for advice on

13

whether or not to return to that policy.

14

"This is our governing policy now," in the most unequivocal

15

terms.

16

Instead, it mandates,

Now, the government also stood up here and argued that

17

laws can always change, and that the President is willing to

18

accept a different interpretation if someone convinces him

19

otherwise.

20

changed.

21

exist today.

22

this.

23

before February 21, 2018.

24

supposedly provides evaporates in an instant, once it reaches

25

its expiration date.

But it's always the case that laws could be

We have to evaluate standing based on the facts that
Nothing about the interim guidance changes any of

That document merely defines the rules of engagement
But whatever protection it

28

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1

Now, it's true, of course, that the military has been

2

ordered to draw up implementation plans.

3

responsibility of the military is to implement the President's

4

policy, not to create a new policy out of whole cloth.

5

President has essentially said, "Tell me how we are going to

6

execute my vision, but understand that whatever you come back

7

to me with, a fixed constant, and not a variable, is that we

8

are authorizing the discharge of service members merely because

9

they are transgender."

10

But the

And the

And that same constraint applies to

both Secretary Mattis and to the panels that he is convening.

11

Now, the government also argued that there would be no

12

point to drawing up implementation plans if the military wasn't

13

also authorized to decide the question of whether or not

14

transgender people should be discharged.

15

true, for the simple fact that discharges don't happen

16

overnight.

17

implementation and study, and --

That, understandably, requires some amount of

18

THE COURT:

19

vacant would have to be filled.

20

But that's simply not

MR. RENN:

Presumably, all those jobs that would be

Absolutely, Your Honor.

And the

21

plaintiffs who occupy mission-critical positions right now,

22

those would have to be filled, taking a very time-intensive and

23

consuming process to actually implement.

24

that goes to the reason why the government does need to devote

25

substantial resources to understanding how it's going to roll

And I think all of

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1

out this policy.

2

memorandum itself actually acknowledges that discharges don't

3

happen overnight.

4

surgical care after March 2018, because it recognizes they may

5

not be able to discharge everyone immediately.

6
7

And that is the reason why it freezes

Plaintiffs have standing, in light of all of this context,
to challenge each of the three aspects of the policy.

8
9

And I also want to emphasize that the

THE COURT:
happen.

Well, talk to me about when does standing

Counsel appeared to argue to me that standing can go

10

away, it can come back.

11

of where standing is.

12

MR. RENN:

And that's not quite my understanding

Well, I think plaintiffs do need to

13

establish standing at the time that they filed this action.

14

And I think there's no question that, in light of the impending

15

harms from the policy, that they satisfied standing at that

16

point in time.

17

And it's also true, of course, that plaintiffs have to

18

maintain standing throughout the action for purposes of

19

obtaining injunctive relief.

20

to get surgical care outside of the military, and no longer had

21

a need for surgical care, we wouldn't argue that they would be

22

injured by any sort of surgical ban.

23

that's not what happened.

24
25

THE COURT:

So, for example, if someone were

But here, of course,

Well, they're arguing that Plaintiff

Muller can get -- can go forward with the surgery that was

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1
2

canceled.
Does that destroy the standing for that individual?
MR. RENN:

3

I don't think it does, Your Honor, but I

4

do think that plaintiffs only have to show one plaintiff who

5

has standing for each aspect of the relief that they're

6

seeking.

7

Doe and Stephens as the plaintiffs who have very clear,

8

undeniable standing to challenge the surgical ban.

9

issue with Plaintiff Muller is informative and relevant,

And I would direct this Court more towards Plaintiffs

I think the

10

because it shows that the threat of not being able to get the

11

medical care that you need is credible.

12

canceled once before, and that was before even the policy

13

technically went into effect.

14

plaintiffs to fear that they will not be able to get the care

15

that they need.

16

It's already been

So it's certainly credible for

And we know for certain that Plaintiff Doe, for example,

17

will be injured by the policy.

18

yet even begun to transition.

19

perhaps some plaintiffs might be able to qualify for an

20

exception to the surgical ban if they've already undertaken

21

transition.

22

exception, for purposes of standing, it will never be broad

23

enough to cover Plaintiff Doe.

24

THE COURT:

25

And that's because she hasn't
So the government argued that

But no matter how broad they try to stretch this

She faces harm, no matter what.

Let's talk about Plaintiff Doe, since you

brought it up, and I brought it up previously with counsel.

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1
2

Is there a harm that she is sustaining by not being able
to be authentic with those in the military around her?
MR. RENN:

3

Absolutely, Your Honor.

It's an irreparable harm.

And it's more

4

than just a harm.

5

Jane Doe is deterred from living openly and honestly as the

6

woman that she is is a day that she cannot get back.

7

are irretrievable losses to her First Amendment, due process,

8

and equal protection rights.

9

those rights to claim that an award of damages would in any way

10

be an adequate substitute.

11

once she comes out.

12

Every day that

And those

And I think it really trivializes

Because there is no going back,

I mean, the government argued that essentially she's

13

protected, right now, under the interim guidance.

14

play that out.

15

command, even though the interim guidance supposedly provides

16

her protection from discharge until March 23, 2018, what

17

happens after that point in time?

18

the bell.

19

transgender people are subject to discharge after March 23,

20

2018.

21

plaintiffs.

22

But let's

If she were, in fact, to come out to her

She can't very well un-ring

And the President has made clear that openly

So there's certainly standing currently happening to the

And it's not at all limited to Jane Doe.

I think that the

23

other plaintiffs likewise face an incredible harm in the form

24

of stigma.

25

as being presumptively unfit to serve.

They have been branded by their Commander in Chief
They have been told, to

32

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1

all the world, that they are burdens and disruptions.

2

have to carry around that badge of inferiority with them as

3

they try to go about their everyday life and do their job.

4

that understandably weakens the bonds and the trust that exists

5

between service members right now.

6

words in SmithKline, this stigma harm is one of great

7

constitutional significance.

8

about the current harms right now, plaintiffs absolutely have

9

standing, based on those alone.

10

THE COURT:

11
12

And

And in the Ninth Circuit's

So even if we were only talking

Let's talk about waiver.

Opposing counsel seems to say, "Well, look, you can waive.
You can apply.

Why isn't that good enough?"

MR. RENN:

13
14

And they

Certainly, Your Honor.

Well, the government has argued that, as a theoretical

15

matter, perhaps waivers could be obtained.

16

record shows that the government is not actually in the

17

business of giving out waivers, undisputedly.

18

conceded that he wasn't aware of any instance in which a waiver

19

had ever been granted.

20

But first, this

And counsel

But second of all, even if a waiver were to be granted, it

21

wouldn't actually cure the equal protection violation.

So part

22

of the harm that we allege here is not merely denial of entry

23

into the military.

24

transgender people will have to play on under the President's

25

policy.

It is also the uneven playing field that

That unequal treatment is, itself, cognizable injury,

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1

regardless of whether or not someone would actually be able to

2

get into the military.

3

has bone spurs, for example.

4

to show that as part of our case.

5

they are ready, willing, and able to apply to the military, and

6

that the military has basically put up a barrier to their entry

7

on discriminatory grounds.

8

but-for causation.

Perhaps one of the accession plaintiffs
We don't know, but we don't have
All we have to show is that

That's it.

We don't have to show

9

And there are a long line of cases in the education

10

context that basically make clear, if you want to challenge a

11

school's race-conscious admissions policy, for example, you

12

don't need to prove that but for that policy, that you would

13

have gotten admission into a particular school.

14

standing to be able to challenge it.

15

answer to the waiver piece.

You still have

So I think that is the

16

And the answer is similarly true for the argument that

17

they raised with respect to Staff Sergeant Schmid, who was able

18

to join us here in the courtroom today.

19

waiver based on the number of years that she's already served

20

in the Army.

21

ultimately granted, she still has standing to challenge the

22

aspect of the discrimination here that she faces, which is

23

independent of that waiver process.

24
25

She is eligible for a

And regardless of whether or not that waiver is

So plaintiffs have standing to challenge both the medical
ban, the accession ban, and also, of course, the retention ban,

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1

which we haven't yet discussed.

2

that the legal standard is whether or not plaintiffs face a

3

credible threat of discharge.

4

establish to show injury in fact.

5

out that Plaintiff Megan Winters was already threatened with

6

separation proceedings, right after the President's tweets.

7

And now, in light of the President's policy, he has authorized

8

the discharge of all transgender service members merely because

9

they're transgender.

10
11

But the core point here is

That's all they need to
And indeed, I have to point

So it is certainly a credible threat that

the harm of discharge will actually materialize.
I'm happy to turn to the preliminary injunction, unless

12

the Court would like further argument on the standing ripeness

13

issues.

14

THE COURT:

No.

Let's talk about the preliminary

15

injunction.

16

Ms. Baker was here last week, arguing.

17
18

And you were here last week -- or I should say,

Is there a reason for this Court to issue a third opinion?
MR. RENN:

There is, Your Honor.

And, of course, the

19

Stone vs. Trump decision was just issued hours ago, and so we

20

haven't had an opportunity to fully review it yet, but I

21

imagine we will submit a notice of supplemental authority.

22

But the government has made no secret of its views about

23

the first D.C. injunction that was issued.

It has said that it

24

believes that decision was plainly erroneous.

25

that they will not take a different view about the second

And I suspect

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1

injunction that has been issued.

And I think all of that shows

2

that the injunction that's been granted in another case is in

3

no way a substitute for the injunction that plaintiffs are

4

entitled to here, because the injunction in another case is

5

invariably of a different duration, scope, and certainty than

6

the one that this Court would issue.

7

the Court granted the motion to intervene, by the State of

8

Washington, was because the State of Washington presented

9

distinct interests as a sovereign entity, that private

Part of the reason that

10

plaintiffs cannot possibly bring into the fold.

And plaintiffs

11

are entitled to an injunction supported by the array of factual

12

circumstances that give rise to their injuries.
So I think the medical ban is actually another

13
14

illustration of the reason why this Court can and should still

15

issue an injunction.

16

about the scope of the exception to the medical ban, that

17

applies if someone has already begun a course of treatment to

18

reassign his or her sex.

19

shape that exception ultimately takes, it will never be broad

20

enough to cover Plaintiff Jane Doe.

21

government will continue to press, in any ensuing appeal of the

22

Maryland decision, for example, that those plaintiffs do not

23

have standing to obtain a preliminary injunction on the medical

24

ban.

25

this context, in light of Plaintiff Jane Doe, and also the

There's a dispute going on, right now,

And our point is that, no matter what

And I'm sure that the

But I don't think that argument has any legs here, in

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1
2

other plaintiffs, as well.
And I also have to emphasize that it is par for the course

3

that courts issue overlapping injunctions, particularly on

4

issues that affect huge swaths of people and that implicate

5

important national interests.

6

course, in the context of the travel ban, in the context of the

7

Affordable Care Act litigation.

8

prevents them from doing that.

9

development of federal law on important issues that multiple

Courts have done that, of

And there's nothing that
It is, in fact, helpful to the

10

courts, particularly in different circuits, decide the same or

11

similar issues.

12

the cases.

13

we've been discussing in the context of Plaintiff Jane Doe,

14

that is not at play in either of the two cases in which

15

preliminary injunctions have been granted.

16

And, of course, there are differences between

We, for example, have a First Amendment claim, that

Plaintiffs satisfy all of the requirements for a

17

preliminary injunction.

18

of my time today talking about the equal protection claim, and

19

begin by discussing the proper level of scrutiny that applies

20

to that claim.

21

for reasons that I'll explain.

22

discriminates based on sex, it's subject to intermediate

23

scrutiny, at a minimum.

24

under any standard of review.

25

And if I could, I'd like to spend most

Strict scrutiny is the appropriate standard,
But because this policy also

And in any event, plaintiffs prevail

First of all, the policy is subject to strict scrutiny

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1

because discrimination against transgender people exhibits all

2

of the indicia of a suspect classification.

3

have suffered a long and painful history of discrimination on

4

the basis of an immutable characteristic, that has no bearing

5

on their ability to contribute to society.

6

case so powerfully illustrates, they also often find themselves

7

in the crosshairs of discrimination because they remain a

8

politically vulnerable minority.

9

against transgender people is also inherently sex

Transgender people

And as I think this

But second, discrimination

10

discrimination.

Gender identity is, itself, a sex-related

11

characteristic.

So when someone discriminates based on gender

12

identity, they are necessarily discriminating based on sex.

13

So regardless of which form of heightened scrutiny this

14

Court applies, the import is that the government bears the

15

burden of justifying the discrimination.

16

are limited, in terms of the support that they draw upon, to

17

what was actually available and what actually influenced the

18

decision that was made at the time it was made.

19

rely on after-the-fact, post hoc factual support that they

20

conceive in litigation.

21

this, for the most part, is to say that because the

22

discrimination here occurred in the military context, that

23

heightened scrutiny should be suspended.

24
25

And furthermore, they

They can't

The government's only response to

But I think that deference is -- the case law is quite
clear, that deference is not automatic.

Cases like Rostker,

38

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1

for example, teach that, in order to get the benefit of

2

deference, the government has to do its due diligence.

3

to do things like engage in a meaningful factual inquiry.

4

must consult with the range of officials with relevant

5

information.

6

And it has to do all of this before it makes the decision, not

7

afterwards.

8

possibly influence the decision at issue.

9

It has
It

And it has to engage in careful deliberation.

Because otherwise, those steps, logically, cannot

And the government has not exercised its due diligence

10

here.

11

process about whether to return to the pre-2016 policy largely

12

begins and ends with the President's three tweets.

13

a stark contrast to the facts of Rostker, where Congress held

14

hearings, took testimony, and engaged in debate about whether

15

or not to exclude women from the draft, based on their

16

exclusion from combat positions at the time.

17

President didn't do any of that.

18

did engage in a deliberative process, a year-long one.

19

resulted in the very policy of allowing transgender people to

20

serve openly, that the President has now discarded.

21

President is essentially overriding the very considered

22

judgment of the military that courts have found to

23

appropriately warrant deference in other cases.

24
25

On this record before the Court, the decision-making

And that is

Here, the

But the military did.

They
And it

So the

The government has essentially argued three justifications
for its discrimination here.

It has argued military readiness,

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cost, and unit cohesion; but none can justify the sweeping

2

scope of the President's ban.

3

turn.

And I'll address each one in

4

First of all, with respect to military readiness, the

5

government claims that its policy promotes readiness, but they

6

have no evidence of that.

7

President's tweets, we don't have a single declaration from a

8

military official in support of the government's readiness

9

justifications.

Even four months now after the

And in fact, this assertion contradicts the

10

evidence the government already has in its hands.

11

study, for example, systematically analyzed this issue, and it

12

concluded there were no readiness implications that prevented

13

transgender people from serving openly.

14

declarations on file of former military leaders all show that

15

discrimination actually undermines readiness, because it

16

focuses on a characteristic that has no bearing on a person's

17

ability to serve.

18

Honor noted, discharges, in particular, are very disruptive,

19

and they damage readiness because they consume resources to

20

fill those positions that are now vacant.

21

The RAND

Similarly, the

And I also want to emphasize that, as Your

Now, the government does note that transition-related care

22

can lead to periods of limited deployability, but so too do a

23

variety of other medical conditions, none of which are

24

disqualifying.

25

example of another condition that leads to a period of limited

And I think pregnancy, itself, is one clear

40

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1

deployability.

2

require the discharge of pregnant troops as unconstitutional

3

discrimination, as in the Crawford case.

4

But courts there have struck down rules that

Second, the government also asserts cost.

But the mere

5

fact that it saves the government money to deprive one group of

6

medical care, which will always be true, no matter what group

7

of people we're talking about, is not a legally adequate

8

justification.

9

justification on this record, because we know from Secretary

And it's also not a factually supported

10

Mattis that the government actually crunched the numbers.

11

as he describes it, the cost of providing transition-related

12

care amounts to mere budget dust in the military's nearly

13

$50 billion annual healthcare budget.

14

THE COURT:

Well, Counsel, are there any other things

15

that have been crunched to make a comparison?

16

cost the military to treat athlete's foot?

17

cost the military to provide Viagra?

18

military to deal with poison oak?

19

And

How much does it

How much does it

How much does it cost the

I'm trying to get a handle on what "budget dust" is.

And

20

if the dollars are going to be something that the government

21

uses to justify it, is there anything in the record that shows

22

a comparison?

23

MR. RENN:

I think that the best estimate would

24

probably come from the RAND study itself, which I don't know if

25

it gets into that level of granular detail about the costs of

41

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1

other conditions.

2

President's tweets, that the cost of providing

3

transition-related care would be a small, small fraction of the

4

amount that the government also spends on providing treatment

5

for sexual health issues, as Your Honor noted.

6

end of the day, you know, it's a small, small drop in the

7

bucket of what the military spends on healthcare.

8
9

But there were reports, of course, after the

And so at the

And again, there's no limiting principle to this.

Because

if it's -- if the government could say that it saves money to

10

get rid of care for this group of people, then it could say

11

that about any group of people.

12

example, what if the government deprived healthcare to those

13

individuals?

14

it wouldn't be a rational thing for the government to do.

Surely, that would save the government money, but

THE COURT:

15

Left-handed people, for

Unit cohesion is the third one.

And I

16

would like to have you talk to me about that, because I

17

honestly don't know what that term encompasses, and whether it

18

means the ability to get along, or does it mean the ability to

19

carry through on a task?

20

another?

21

Does it mean you have to like one

What is it?
MR. RENN:

Sure.

I don't think the government

22

actually pinpoints what aspect of unit cohesion forms the basis

23

of the interest that they're asserting.

24

Professor Eitelberg, I think, goes into this a little bit and

25

talks about the difference between social cohesion and task

But the declaration of

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1

cohesion.

2

part that matters for getting a job done.

3

along with people well enough that you can focus on the

4

mission, but it doesn't necessarily mean that you have to

5

actually like the person that you're working with.

6

And he explains that task cohesion is actually the
You have to get

But I have to emphasize that, regardless of what form of

7

unit cohesion we're talking about, there is no evidence on this

8

record that allowing transgender people to serve openly, which

9

they've been doing for the last year and a half, has had any

10

compromise whatsoever on unit cohesion, which is exactly what

11

the RAND study, and also the experience of foreign militaries,

12

confirmed would be the case.

13

have evidence that shows that open service actually promotes

14

cohesion, because people don't have to lie about who they are.

15

And when they drop those barriers, that creates and fosters

16

better bonds and trust between service members.

17

And in fact, on this record, we

And, of course, I think it's also important to emphasize

18

that unit cohesion has historically been used to justify all

19

sorts of discrimination in the military context, whether on the

20

basis of race, or sex, or sexual orientation.

21

that we've taken away from each one of those experiences is

22

that the military grew stronger when it dismantled barriers to

23

service that had no bearing on an individual's ability to

24

serve.

25

But the lesson

If there are no further questions, I'll reserve the

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1

balance of my time for rebuttal.

2

THE COURT:

Ms. Baker?

3

MS. BAKER:

Good afternoon, Your Honor.

I'm La Rond

4

Baker, Assistant Attorney General for the State of Washington.

5

And as you know, the State of Washington was recently

6

granted intervention, and the defendants did not actually file

7

their motion to dismiss against the State.

8

incorporate their motion to dismiss in their response to the

9

State's motion for intervention.

They did

And so as such, I think it

10

might be best for me to talk about standing in the context of

11

the preliminary injunction.

Is that okay?

12

THE COURT:

That's fine.

13

MS. BAKER:

Okay.

14

Great.

So first, I want to address the fact that we now have two

15

injunctions that are in place, the Doe injunction and the Stone

16

injunction.

17

another injunction, or a third injunction.

18

State's perspective, our state interests are simply broader

19

than any other private plaintiff's interests that have been

20

protected by the Stone and the Doe injunctions.

21

defendants have consistently attacked the standing of private

22

plaintiffs, we don't feel that an injunction that is tethered

23

to private plaintiffs' standings is sufficient to protect the

24

State's interests, which are much broader than an individual's

25

or an organizational standing.

And you asked Mr. Renn, earlier, why we still need
And from the

And as the

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THE COURT:

1

Now, it's my understanding that the

2

California case that was set to be argued has been postponed

3

because California has intervened.
MS. BAKER:

4

That's correct.

I believe the hearing is

5

set for December 11, but intervention was granted on behalf of

6

the State of California.

7

are -- no P.I. motion has been adjudicated in that.

However, nothing has been -- there

8

THE COURT:

Thank you.

9

MS. BAKER:

There also is a potential for the other

10

injunctions to be narrowed, overturned, or vacated for specific

11

reasons.

12

quasi-sovereign and sovereign interests are protected, which

13

goes to our standing and our interests for a preliminary

14

injunction.

15

And the State wants to ensure that its

For a preliminary injunction, you have to prove that a

16

party is likely to succeed on the merits, likely to suffer

17

irreparable harm in the absence of preliminary relief, and that

18

the balance of equities tips in their favor, and an injunction

19

is in the public interest.

20

the irreparable harm to the State of Washington, which is also

21

tethered to our standing arguments.

We are going to address Prong 2,

22

First, Washington suffers harm to its parens patriae

23

interests in protecting the health, both physical and economic,

24

of Washingtonians from invidious discrimination based on

25

transgender status, gender identity, and sex.

Without a

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1

preliminary injunction, the approximately 38,000 transgender

2

Washingtonians would be subjected to defendants' discriminatory

3

ban.

4

the military, either openly or silently, would be denied access

5

to necessary medical treatment, equal opportunity, and would

6

suffer stigma.

7

in protecting Washingtonians who are transgender, and their

8

families, and it's the type of harm that no legal remedy or

9

award of damages can fully vindicate, and as such should be

Further, transgender Washingtonians currently serving in

This harms Washington's parens patriae interest

10

deemed irreparable harm sufficient to sustain the issuance of a

11

preliminary injunction.

12

Second, Washington has proprietary interests that are at

13

risk here and that would be in -- entered if defendants' ban is

14

not enjoined.

15

economic impact on the proprietary interests of government

16

entities is sufficient to warrant injunctive relief, here

17

Washington's proprietary interest in avoiding economic harm

18

that occurs to Washington's tax base and economy when

19

Washingtonians are denied employment and advancement

20

opportunities.

21

employer in the State of Washington, and indeed there are

22

approximately 60,000 active, reserve, and guard members in

23

Washington.

24

policies that restrict employment opportunity and advancement

25

opportunities on such a grand scale, that impacts Washington's

Courts have repeatedly found that non-trivial

The military is the second-largest public

When such a large employer enacts discriminatory

46

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1
2

economy and tax revenue.
Washington also has an interest in not spending its scarce

3

economic resources to support discriminatory policies.

4

State spends millions of dollars to support the Washington

5

National Guard, which is impaneled pursuant to the military's

6

accession policy.

7

by the Governor, the State pays the Guard members' wages, and

8

thereby manages and pays a guard body that has been staffed

9

pursuant to a discriminatory policy.

There are 8,000 members.

The

And when deployed

This is the type of harm

10

that no legal remedy or award of damages can fully vindicate,

11

and should be sufficient to show irreparable harm.

12

Third, Washington has sovereign interests that are

13

irreparably harmed by defendants' ban.

14

sovereign interests in ensuring that the National Guard can

15

protect its natural resources of the State and provide aid in

16

times of emergency.

17

seeks to serve reduces the strength and efficacy of the Guard,

18

and forces us to lose skilled and qualified personnel, and

19

potential personnel, which is something Washington can't

20

afford.

21

Washington has

Turning away a single Washingtonian that

Further, such discriminatory practices fly in the face of

22

longstanding policies against discriminatory employment

23

practices.

24

protecting its antidiscrimination laws and ensuring that itself

25

is not utilizing its resources and service opportunities in a

Washington also has sovereign interests in

47

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1

discriminatory manner.

Without a preliminary injunction, these

2

interests would be damaged, and no legal remedy or award of

3

damages could fully vindicate these harms; and as such, as said

4

before, they should be deemed irreparable harm sufficient to

5

sustain a preliminary injunction.

6

As such, Washington requests that this Court issue a

7

preliminary injunction barring defendants from implementing any

8

and all aspects of the transgender military service ban.

9

Washington also asks this Court to include in its consideration

And

10

the harms that Washington will suffer, that have been briefed

11

and argued today, in its consideration of the balance of

12

equities and public interest components of the Winter standard.

13

And if there are no further questions, or questions for

14

me, the State joins private plaintiffs' motion for a

15

preliminary injunction and all of the legal arguments put

16

forward.

17

briefing had been done, we did not want to put forward any new

18

legal arguments, but wanted to make sure that our interests

19

were before this Court.

20

As the State was granted intervention after the

Thank you.

21

THE COURT:

Thank you.

22

MR. LUCAS:

Thank you, Your Honor.

23

I'd like to just make two points.

First, there is no need

24

for a third injunction in this case.

The Stone court gave the

25

plaintiffs all the relief they seek.

It also gave all of

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1

Washington the relief it seeks.

2

protected under the terms of the Stone court's injunction, as

3

are all of its interests.

4
5
6

THE COURT:

All Washingtonians are

So we don't see --

So was there another state that was

involved in the Stone court?
MR. LUCAS:

No, Your Honor.

But the injunction

7

itself, that was issued by the Stone, were enjoining all

8

aspects of the memorandum, would conceivably give Washington

9

all of its relief.

We're not sure what else could be enjoined.

10

Because all of Washington's concerns flow from the presidential

11

memorandum.

12

THE COURT:

I see.

So not necessarily all the

13

reasons stated, but you're saying that the order covers all of

14

the concerns.

15

MR. LUCAS:

Yes, Your Honor.

16

THE COURT:

Okay.

17

MR. LUCAS:

And I'd also just like to reiterate that

18

Judge Robart did stay and decline to enter an overlapping

19

injunction in the travel executive order litigation, under very

20

similar circumstances here, and we think that that would be the

21

right course, as well.

22

And if Your Honor has any concerns over us appealing any

23

of these injunctions, or what will happen in the future, we

24

would just like to emphasize that the issue has been fully

25

briefed, the parties have been ably represented, and there's

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1

been argument.

2

decide to issue an injunction, if there's any concern that this

3

Court has in the future.

4

third one, right now.

5

So Your Honor can always come back to it and

THE COURT:

But we just don't see a need for a

Well, Judge Robart was asked to have a

6

second ruling within the same circuit.

7

not in the Ninth Circuit; correct?

8
9
10
11

MR. LUCAS:

The other opinions are

That is true, Your Honor.

Our primary

submission is that the plaintiffs, and Washington, as well,
have all the relief they seek.
But moving on to my second and final point, Your Honor, we

12

just want to be clear that we're not asking this Court to say

13

that it can never review the presidential memorandum or any

14

policy that is ultimately adopted by the military.

15

our position simply is that review would not be appropriate

16

with respect to these plaintiffs at this time.

17

simply ask you to conserve your resources, and just wait a few

18

months until the military finishes studying this issue and

19

issues a final policy.

20

much better position to assess the product of that deliberative

21

process and make a full and informed constitutional ruling.

22

Instead,

We therefore

At that point, this Court will be in a

And in the meantime, the plaintiffs are triply protected

23

under the -- what we view as the express terms of the

24

presidential memorandum, under the terms of the interim

25

guidance, and now under two separate injunctions, issued by two

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1

separate courts, in two separate circuits.

2

reasons, we ask you to dismiss their complaint right now.

3

So for these

Thank you, Your Honor.

4

THE COURT:

5

MR. RENN:

Thank you.
Your Honor, I just wanted to respond to

6

the last point about whether or not a third injunction is

7

necessary, and to emphasize, again, that it is par for the

8

course for courts, particularly in different circuits, to rule

9

on issues that are common.

And that is, for example, how

10

circuit splits are able to evolve, which I think the Supreme

11

Court finds quite helpful in knowing what issues merit their

12

attention.

13

travel ban and Judge Robart is quite distinguishable, because

14

there, it was another case that was already up before the Ninth

15

Circuit.

16

of Hawaii, whereas there is no other case, right now, in which

17

an injunction has been granted covering another state entity.

18

With respect to the second point counsel made about this

And as Your Honor noted, the situation with the

And that also involved another sovereign, the State

19

Court staying its hand until the results of this supposed study

20

come out, my response to that is that the study cannot change

21

the decision that was already made.

22

constitutional -- the government's action here has to be judged

23

on the information that it had at the time that it made the

24

decision.

25

can't go back and change the facts as they existed at the

The government's

And so whatever study that's going on right now

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1

relevant time.

They're designed, I think, to do so, to

2

implement and justify what the President already did, but they

3

can't change the facts as they existed on July 26, 2017, and on

4

the date that the President issued his memorandum, which is the

5

only relevant inquiry as to whether or not the government's

6

actions are constitutional or not.
THE COURT:

7

Counsel, opposing counsel argued to me

8

that the military would not go through this laborious process

9

if it were simply to have people exit.

10
11

Is there anything in the record that says anywhere what
they're doing, or what they are -- what their progress is?
MR. RENN:

12

The only thing we have in the record are

13

the statements of Secretary Mattis.

14

provide any clarity as to whether or not the study will go into

15

what the government claims that it will.

16

the memorandum sets the parameters of what discretion has been

17

delegated to the Secretary.

18

returning to our pre-2016 policy."

19

implementation that's happening, it has to happen within the

20

contours of that basic framework.

21

the only piece of this that we challenge.

22

matter how the government actually chooses to roll out its

23

policy.

24

is enough for plaintiffs to have standing.

25

And it doesn't at all

But we do know that

The memorandum says, "We are
So whatever study or

And that basic framework is
And it doesn't

The point is, it's doing it in the first place, which

THE COURT:

Thank you.

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1

MR. RENN:

2

THE COURT:

Ms. Baker, do you wish any further

4

MS. BAKER:

No, Your Honor.

5

THE COURT:

All right.

3

Thank you, Your Honor.

argument?
Thank you.

Counsel, I thank you for your

6

arguments.

7

that you've presented to me, and you will have an opinion by me

8

by December 8, if not before.

9

And I'm going to take some time to study the issues

So thank you.

10

(Adjourned)

11

(End of requested transcript)

12
13
14

Have a good holiday.

*

*

*

I certify that the foregoing is a correct transcript from
the record of proceedings in the above matter.

15
16

Date:

11/21/17

Andrea Ramirez

17
18
19
20
21
22
23
24
25

Signature of Court Reporter