Amid Legal Chaos, New Trans Military Policy Expected Wednesday

Defense Secretary James Mattis

The Department of Defense is likely to announce a new policy on service by transgender troops this week, even though the Trump administration’s ban on trans service members has been temporarily blocked by four federal courts.

Also, emails have been made public that, if authentic, provide evidence that Donald Trump did not consult with military leaders before announcing the ban via Twitter last July, reversing the action by President Barack Obama’s administration to lift the ban. Lifting the ban meant trans people already in the military could serve openly without fear of being discharged solely for their identity, and paved the way for enlistment of new openly trans troops.

Before the ban was stayed by courts while lawsuits against it were heard, the administration had announced that Defense Secretary James Mattis and other military experts would develop a plan for its implementation by February 21 — this Wednesday.

Mattis is expected to keep with that schedule, USA Today reports, and was scheduled to have lunch with Trump and Vice President Mike Pence at the White House today. Approval of the plan would be up to Trump and his White House advisers.

However, LGBT activists say officials should pay heed to the court actions when formulating the policy. The federal judges who have blocked the ban while cases are being heard have generally said the suits against the ban are likely to succeed.

“As Sec. Mattis prepares to release the road map for implementing President Trump’s ban tomorrow, he should keep in mind that four federal courts have blocked the ban from going into effect and have ruled that the only constitutional option is to apply the same standards to every service member, meaning that troops who are fit for duty can serve,” said a statement issued by Aaron Belkin, director of the Palm Center, a think tank that deals, among other issues, with sexual minorities in the military.

“Applying a single standard to all service members is not only the sole legal option, but is the best way to promote military readiness. Transgender troops have been serving openly in the U.S. military for nearly two years, and have been widely praised by commanders,” Belkin continued. “All available research, including the military’s own extensive study of the issue and the results of a thorough study by the RAND Corporation, indicates that inclusive policy promotes readiness by ensuring equal treatment and drawing on all available talent. Eighteen foreign militaries allow transgender troops to serve openly, and none have reported any compromise to readiness. The Trump administration should not politicize the evidence to score political points with its anti-LGBT base.”

Also, BuzzFeed has obtained emails, purportedly from the chairman of the Joint Chiefs of Staff —  the nation’s highest-ranking military officer — that say he was surprised by the ban announcement last July and was not consulted about it. Trump’s tweet said he had reached the decision on the ban after discussions with generals and other military experts.

The emails, according to BuzzFeed, were sent by Gen. Joseph Dunford, the Joint Chiefs chairman, to the generals of the Air Force, Army, Marines, National Guard, and Navy July 27, one day after Trump made his announcement. “They suggest widespread surprise among the chiefs, while raising further questions about Trump’s claim that he announced the position after consulting with military brass,” BuzzFeed reports. A spokesman for Dunford declined to confirm or deny the authenticity of the emails.

“This is more proof — as if any more were needed—that this ban is purely a political, ideological attack on qualified individuals who signed up to risk their lives for their country,” Mara Keisling, executive director of the National Center for Transgender Equality, said in a prepared statement regarding the emails. “President Trump told a pants-on-fire lie about consulting with the Pentagon and then ordered them to justify his reckless ban. It's no wonder that four federal courts have already declared the ban unconstitutional, the American Medical Association has said it has no medical basis, and majorities of lawmakers and the American public reject it.”

In one of the suits against the ban, lawyers from the Justice Department have cited executive privilege in refusing to turn over documents regarding Trump’s “consultations.” The judge hearing that case, Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia, has warned that executive privilege may not apply in this instance and asked the Justice Department for further information.

And the Palm Center today released a document that undermines the administration’s argument that the military was not ready to begin admitting transgender recruits as of January 1, the date set for such enlistments prior to the ban announcement. Several federal judges, having blocked the ban, declined the administration’s requests to delay these enlistments past that date.

The document, a Defense Department memo distributed to military commanders December 8, is titled “Transgender Applicant Processing” and “consists of a simple set of instructions for processing applications,” according to the Palm Center. “The December 8 memo proves that before the Justice Department told the courts that the military was unprepared to lift the ban, the Pentagon had already put in place everything that needs to be done,” Belkin said in a press release.

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