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Will New Trans Military Ban Sidestep Court Injunctions?

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Secretary of Defense James Mattis. | DEPARTMENT OF DEFENSE/ AIR FORCE TECH. SGT. BRIGITTE BRANTLEY

In a policy roll-out that may successfully sidestep existing court injunctions against President Donald Trump’s proposed ban on transgender military service, the White House on March 23 announced a policy, based on the recommendations of Defense Secretary James Mattis, that would bar service by almost any trans individual, with only very limited exceptions.

In a 48-page memorandum to the president dated March 22, Mattis recommended that anyone with a history of gender dysphoria — the sense that one’s gender identity is different than the gender they were assigned at birth based on biology — is barred from military service, unless the individual has been “stable” in their biological gender for three years prior to enlisting, has been diagnosed with gender dysphoria while in the service but does not require gender transition, or was in the service and began to transition under former President Barack Obama’s policy, announced in 2016, to open military service to transgender people.

Amplifying on those guidelines, the Pentagon chief specifically stated that any transgender person who requires or has undergone gender transition — except the limited group who began doing so under the Obama reform — are disqualified. And transgender individuals who never received a gender dysphoria diagnosis may serve, but only in their biological sex.

The practical impact of this policy is that it would essentially ban transgender enlistment and mean the discharge of actively serving trans members of the military — with the exception of those willing to live in their biological sex despite the gender identity they feel psychologically and emotionally.

For advocates who have worked for years to open up military service to transgender Americans and were buoyed by a series of four federal court decisions enjoining Trump’s policy as announced last summer from taking effect, the reaction was swift.

In a written statement, Mara Keisling, executive director of the National Center for Transgender Equality, said, “This is the same reckless ban that has been rejected by the federal courts, the American Medical Association, many bipartisan members of Congress, and most of the American people. Yet the Trump-Pence administration keeps trying to barrel ahead. This plan has no basis in science, medicine, facts, or military readiness — only weak, after-the-fact justifications for President Trump’s irresponsible tweets. It aims to force out trained, capable service members and prevent the military from obtaining the most qualified personnel. A fraction of current service members who have already transitioned may be ‘grandfathe­red’ in and not discharged — but after this announcement, they will serve under a cloud of hostility. Transgender troops have always served our country, and thousands of trained and capable transgender troops have been serving ably and openly for nearly two years without issue. Implementing this plan would cause needless chaos and expense for the military and discard valuable personnel with critical skills, not because they can’t do their job but because of who they are.”

Peter Renn, a senior attorney at Lambda Legal, which has challenged the president’s proposed ban in court, stated, “The ‘plan’ unveiled today is nothing more than a transparent ruse cobbled together with spittle and duct tape designed solely to try to mask discrimination. A plan to implement an unconstitutional decree is an unconstitutional plan. In 2016, after careful and deliberate study, the Pentagon determined that the prohibition on open service by transgender people lacked any foundation and lifted the ban. Since then, transgender troops had been serving openly and successfully — until President Trump unleashed his incendiary barrage of uninformed tweets.”

Aaron Belkin, director of the Palm Center, a research institute focused on policy questions regarding sexual minorities in the military, issued a statement saying, “In service to the ideological goals of the Trump-Pence base, the Pentagon has distorted the science on transgender health to prop up irrational and legally untenable discrimination that will erode military readiness. There is no evidence to support a policy that bars from military service patriotic Americans who are medically fit and able to deploy.”

The advocates clearly aim to characterize Mattis’ conclusions as an after-the-fact rationalization of a policy Trump first announced in a tweet storm last July with no apparent reliance on military advice. The president’s motivation, instead, seems to have been to placate House conservatives unhappy about funding for gender reassignment surgery who threatened to withhold their votes from a military spending bill.

In four different federal courts, judges issued temporary injunctions against implementation of Trump’s policy, finding that it did not seem grounded in any military expertise — and was at odds with Pentagon findings late in the Obama administration that transgender service was not inconsistent with military readiness and imposed no significant cost in terms of health care spending. Two federal appeals courts declined to block two of the injunctions the Justice Department had challenged. And just this week, DOJ refused to comply with an order from District Judge Marsha J. Pechman in Seattle that the White House identify the “generals” and other “military experts” Trump’s tweets claimed he relied on in initiating the policy change.

Mindful that Trump’s effort to reverse the Obama policy on transgender troops flew in the face of the conclusions of a lengthy Pentagon review, Mattis argued that review was largely based “on a study prepared by the RAND National Defense Research Institute; however, that study contained significant shortcomings. It referred to limited and heavily caveated data to support its conclusions, glossed over the impacts of healthcare costs, readiness, and unit cohesion, and erroneously relied on the selective experiences of foreign militaries with different operational requirements than our own.”

Advocates will pour through the Mattis memo to counter his revisionism on the issue, but the legal challenges to the new policy now face an important new obstacle: the court’s traditional deference to military expertise in Pentagon’s personnel policy, something that hobbled challenges to the Don’t Ask, Don’t Tell policy for years. The White House announcement rescinded Trump’s August order to the Pentagon that followed on his July tweets, stating, “The Secretary of Defense, and the Secretary of Homeland Security, with respect to the U.S. Coast Guard, may exercise their authority to implement any appropriate policies concerning military service by transgender individuals.”

The courts may be far more reluctant to challenge a report from the Pentagon, informed by a “Panel of Experts,” than tweets from the president that seemed clearly informed by his gut instincts.

Arthur S. Leonard, Gay City News’ legal correspondent and a New York Law School professor, in a preliminary reading of the Mattis memo, said, “The report, while undoubtedly subject to various criticisms and failing to identify by name its authors, reads like a serious, detailed study of the issues raised by transgender service.”

Leonard continued, “The question for the courts will not be whether this is ‘correct’ — it will be whether it meets the standard for judicial deference, which is a different question. I’m not sure how that one will come out. We have to remember that the preliminary injunctions were focused on the tweet and the conclusory August White House memorandum. Mattis had an assignment from the president, and his subordinates have carried it out.”

Leonard will review the issues raised by the Mattis report and the new policy announcement in greater detail early in the coming week.

Updated 2:20 pm, September 4, 2018
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