Zachary D. Rosenbaum, Jennifer Fiorica Delgado, and Meg Slachetka achieved a key victory as plaintiffs’ pro bono counsel in Doe v. Esper, a constitutional challenge to the Pentagon’s transgender service policy. The government’s policy is to discharge or deny enlistment to anyone who will not serve in the gender to which they were assigned at birth, or who is undergoing hormone therapy or other gender-confirmation procedures.
The Hon. Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia granted the team’s motion to compel production of documents withheld by the Department of Defense (DOD) and other government defendants. The court rejected the government’s argument that it should automatically be accorded a high level of deference because the policy resulted from military-decision-making, and ruled that “[a]dditional discovery is needed to determine if the [challenged Mattis] Plan is the product of considered military decision-making that reasonably and evenhandedly regulates the matter at issue.”
The judge further agreed that DOD could not invoke the deliberate process privilege, which protects documents revealing the process behind government decisions, because "[t]hose documents go to the heart of Defendants' intent and decision-making process … — both key issues in establishing the legitimacy of the disputed transgender policy.” The opinion made clear that “Plaintiffs’ need for the information overcomes Defendants’ privilege.”
“It’s gratifying to use the trial skills we have honed in our Capital Markets Litigation Group to protect the rights of individuals fighting on behalf of our country,” said practice leader Zachary D. Rosenbaum.