Donald Trump is sticking with his ban on military service by transgender people, releasing a memo to that effect Friday evening.
The presidential memo cites a report received last month from Secretary of Defense James Mattis concluding that trans people are not fit to serve.
“Among other things, the policies set forth by the Secretary of Defense state that transgender persons with a history or diagnosis of gender dysphoria — individuals who the policies state may require substantial medical treatment, including medications and surgery — are disqualified from military service except under certain limited circumstances,” the memo states.
This comes even though four federal courts have blocked implementation of the ban while lawsuits against it proceed, appeals courts have upheld those actions, and military experts have concluded that the cost of providing treatment to trans troops would be minimal.
Because of those court injunctions, the memo issued by Trump will have no immediate effect, according to LGBT organizations involved in the legal fight against the ban. And earlier in the day, a Defense Department spokesman told the Washington Blade that the department would obey the court orders and retain trans troops no matter what Trump announced.
LGBT and other civil rights groups were quick to denounce the president’s action. On a conference call with reporters Friday night, several advocacy groups said the ban is the same one Trump tweeted last July, just dressed up this time with language from Mattis seeking to justify it.
“Mattis was backed into a corner and asked to come up with justification post-hoc,” said David Stacy, government affairs director for the Human Rights Campaign, which is a party to one of the suits.
Mattis’s “justification,” laid out in a report he presented to the White House last month (but just released today), includes the argument that a study prepared by the RAND National Defense Research Institute, on which President Barack Obama’s administration relied in lifting the ban in 2016, “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,” Mattis wrote. “In short, this policy issue has proven more complex than the prior administration or RAND assumed.”
However, advocates on the conference call pointed out that in the time in which trans troops have been able to serve openly, no problems have arisen. RAND also estimated costs of transition-related health care at between $24 million and $84 million over the next 10 years, when the military budget is $600 billion a year, making those health care costs a drop in the bucket.
“This is still a policy in search of a problem,” said Natalie Nardecchia, senior attorney with Lambda Legal, on the conference call. Lambda and OutServe-SLDN brought one of the suits against the ban, on behalf of current and aspiring transgender military members, in addition to three organizations, the HRC, the Gender Justice League, and the American Military Partner Association.
Mattis prepared the report at Trump’s behest. In August, a month after issuing his tweet, Trump asked the secretaries of Defense and Homeland Security to develop a “study and implementation plan” on banning military service by transgender people, to be delivered in February.
The Mattis report does seem to allow for a very few trans troops to continue serving. One portion states, “currently serving Service members who have been diagnosed with gender dysphoria since the previous administration’s policy took effect and prior to the effective date of this new policy, may continue to serve in their preferred gender and receive medically necessary treatment for gender dysphoria.” It also says trans people can serve in their “biological sex,” which the LGBT rights groups say is a blurry term legally.
But overall, the report prepared by Mattis and approved by Trump’s memo says that people with a diagnosis of gender dysphoria, outside the exceptions outlined above, are disqualified from military service. “It’s quite clear this is a complete ban,” Stacy said.
The groups assured trans service members, however, that the memo does not affect the court injunctions already issued to block the ban while the various lawsuits make their way through the courts. Therefore trans troops can continue to serve openly, and trans people can continue enlisting. Lambda and OutServe-SLDN will be back in court Tuesday seeking to have the temporary injunction against the ban made permanent.
That suit is being heard in U.S. District Court in Washington State, where Thursday Justice Department lawyers, representing the Trump administration, refused to provide a judge with the names of the “military experts” Trump had supposedly consulted before sending his tweet in July. The judge had given them a deadline of 8 p.m. Eastern time Thursday, but instead of providing the names by then, they filed a document saying executive privilege allowed them to withhold the names.
The other suits against the ban are two brought by the National Center for Lesbian Rights and GLBTQ Legal Advocates and Defenders in federal courts in California and Washington, D.C., and one brought by the American Civil Liberties Union in federal court in Maryland. The clients included current and aspiring trans service members as well as organizations.
All the groups involved in the various suits issued statements denouncing Trump’s action today. A sampling:
“This is exactly the discriminatory, categorical ban that four federal courts have already barred from going forward. This is just the sort of baseless attack on dedicated service members we have come to expect from this administration, and we will continue to fight this shameful ban vigorously in federal court.” — Shannon Minter, legal director, NCLR
“This Trump-Pence plan categorically bans transgender people from service, with no legitimate basis. It requires the discharge of trained, skilled troops who have served honorably for decades. It’s a gross mischaracterization of transgender people, and it’s bad for our military.” — Jennifer Levi, Transgender Rights Project director, GLAD
“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.” — Peter Renn, senior attorney, Lambda Legal
Added: “This policy is a thinly veiled and feeble attempt by the Trump-Pence administration to justify the unnecessary discrimination of qualified patriots in order to advance their own personal agendas and in defiance of the administration’s top military leadership. This plan is riddled with blatant animus, bigotry, and ignorance but conveniently void of any foundational bases or facts. We are calling this what it is— an attempt to legitimize an unwarranted and unnecessary attack that targets individuals who have volunteered their lives in support of this country.” — Matt Thorn, president and CEO, OutServe-SLDN
“What the White House has released tonight is transphobia masquerading as policy. This policy is not based on an evaluation of new evidence. It is reverse-engineered for the sole purpose of carrying out President Trump’s reckless and unconstitutional ban, undermining the ability of transgender service members to serve openly and military readiness as a whole.” — Joshua Block, senior staff attorney, ACLU LGBT & HIV Project
Statements also came from groups not directly involved in the suits.
“Discrimination is not a national security strategy. That’s why military officials, members of both parties, and our justice system have opposed the president’s senseless ban. Those who defend our right to live freely should be able to serve freely. And Democrats will keep fighting for the transgender community and all those who put themselves in harm’s way to protect our nation.” — Democratic National Committee chair Tom Perez, national finance chair Henry Muñoz, LGBT Caucus chair Earl Fowlkes, and treasurer Bill Derrough
"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. As we have heard military leaders and lawmakers of both parties say so many times, any American who can meet the military’s tough standards and is willing to risk their life to keep our country safe should be able to serve. We will continue to fight this unconstitutional ban and we are confident that Congress or the courts will put an end to it once and for all." — Mara Keisling, executive director, National Center for Transgender Equality
“The families and allies of PFLAG, zip code by zip code, from sea to shining sea and beyond, will fight this un-American plan. PFLAGers will stand and speak up for truth, justice, and the American way of respectful and fair inclusion for our servicemembers, whether active duty, prospective, or veteran. This policy will affect not only servicemembers, but also their families, their spouses and children.” — Diego M. Sanchez, director of advocacy, policy, and partnerships, PFLAG National