## Facts

- In 2016, the Department of Defense adopted a policy permitting open military service by transgender individuals and allowing their accession.
- In July 2017, the President announced that transgender individuals would not be allowed to serve in the U.S. military.
- In August 2017, a presidential memorandum directed the military to return to the pre-2016 approach and to halt accession of transgender persons.
- Plaintiffs (transgender service members, prospective service members, and advocacy organizations) and the State of Washington sued, alleging violations of the equal protection component of the Fifth Amendment, among other claims.
- In December 2017, the district court entered a nationwide preliminary injunction barring enforcement of the 2017 directives, finding plaintiffs likely to succeed and rejecting asserted justifications tied to military effectiveness and costs.
- In February 2018, after an internal review, the Secretary of Defense proposed a revised policy disqualifying individuals with a history or diagnosis of gender dysphoria except in limited circumstances, while allowing service for some who identify as transgender if they had no such diagnosis and served in their biological sex.
- In March 2018, a new presidential memorandum revoked the 2017 memorandum and authorized implementation of the 2018 policy.
- The government moved to dissolve or modify the preliminary injunction based on the new policy; the district court struck the motion and left the injunction in place, reasoning the 2018 policy was not significantly different and that discovery should continue.
- The government took an interlocutory appeal under 28 U.S.C. § 1292(a)(1).

## Issues

1. Whether the district court abused its discretion by declining to reconsider the preliminary injunction after the 2017 directives were revoked and replaced by a materially different 2018 policy.
2. Whether the district court was required to apply the proper equal-protection framework to the 2018 policy (including any heightened scrutiny) while accounting for judicial deference in military affairs.
3. Whether the district court erred by maintaining a broad nationwide injunction without reassessing its tailoring in light of the changed policy.

## Decision

- The Ninth Circuit vacated the district court’s order to the extent it refused to reconsider the preliminary injunction in light of the 2018 policy and remanded.
- The court held the 2018 policy was significantly different from the 2017 memorandum and had to be evaluated on its own terms.
- The court did not decide the constitutionality of the 2018 policy, directing the district court to reassess likelihood of success and the other preliminary-injunction factors as applied to the new policy.
- The court instructed the district court to consider the proper level of scrutiny and deference and to reassess the scope of any injunctive relief, including whether nationwide relief was justified.

## Legal Principles

- When a challenged policy is replaced with a materially different policy, a court must reconsider existing preliminary injunctive relief and evaluate the new policy on its own terms.
- Preliminary injunctive relief must be tailored to the specific conduct shown to be unlawful and should not be more burdensome than necessary to provide complete relief to the plaintiffs.
- In equal-protection challenges involving military policy, courts may owe deference to military judgments, but deference does not eliminate judicial review of constitutional claims.
- A court must apply the appropriate level of constitutional scrutiny to the classification at issue, which may require heightened scrutiny depending on how the policy functions and what classifications it employs.

## Conclusion

The Ninth Circuit required the district court to re-evaluate the continued need, basis, and scope of the preliminary injunction after the government replaced the 2017 transgender military directives with a materially different 2018 policy, and to reassess the constitutional analysis and tailoring of any injunctive relief on remand.


Karnoski v. Trump, 926 F.3d 1180 (9th Cir. 2019)