LGBT Lawyers Suing Trump for Military Trans Policy Subpoena Outside Groups

By Elaine Donnelly | May 15, 2018 | 11:07am EDT
Secretary James Mattis Shakes hands with President Donald J. Trump (Screenshot)

Much to the dismay of his critics, President Trump has taken steps to deliver on his promise to end political correctness in the military.  In August 2017, President Trump announced his intent to review and revoke Obama-era policies mandating retention and recruiting of transgender personnel, meaning persons diagnosed with a psychological condition called gender dysphoria.

Individuals who are confused about their gender identity deserve compassion and competent psychological care.  Gender dysphoria, however, has been on the long list of physical and psychological conditions that disqualify individuals from military service. 

President Trump has every right to review and revise his predecessor’s policies in the interests of strengthening our military, but leaders of the LGBT left believe otherwise.  Starting last fall, lawyers from LGBT activist groups such as the Human Rights Campaign, the ACLU, and LAMDA Legal filed predictable lawsuits against President Trump in four federal district courts. 

They demanded that the judges overrule President Trump’s transgender policy changes, and the lower courts did just that.  Nationwide preliminary injunctions ordered Defense Department officials to continue President Barack Obama’s controversial transgender policies.  

Even though federal judges have no constitutional power to make policy for the military, two Courts of Appeals failed to restore the constitutional order, and the government chose not to petition the Supreme Court for intervention.  The preliminary injunctions still stand, therefore, and federal judges are running the military under LGBT law. 

The judges issued high-handed orders before they heard merits of the case, and before a Pentagon panel of experts completed a full review of the subject and a comprehensive report. 

Secretary James Mattis submitted recommendations for policy changes in February, citing new data in the 44-page Defense Department Report.  On March 23 President Trump endorsed Secretary Mattis’ nuanced policy, which asserts sound priorities: mission readiness and combat lethality. 

In summary, the policy would a) Disqualify persons with gender dysphoria from military service; b) Allow persons identifying as “transgender” but without gender dysphoria to serve in their biological gender, if they have been “stable” for 36 months and meet requirements for deployability; and c) Retain “grandfathered” personnel identifying as transgender and receiving treatment under previous administration policies.

A CMR analysis of the Mattis/DoD report highlights new data documenting high costs incurred under Obama-era mandates.  For example, according to DoD Health System records gathered since 2016, 994 service members seeking treatment for gender dysphoria showed a 300 percent increase in medical costs, and accounted for 30,000 mental health visits. 


Some commanders said they had to use operations and maintenance funds to pay for extensive travel throughout the U.S. for specialized transgender medical care.  So much for low-ball estimates in the discredited 2016 RAND Report, paid for by the Obama administration, which attempted to downplay potential costs and impacts on readiness, safety, and personal privacy, especially for women in separate-gender facilities. 

The DoD panel reviewed a wide array of studies analyzing the effectiveness of transgender treatments and surgeries, and found that the science is far from settled.  Sadly, the Mattis/DoD analysis reports that individuals with gender dysphoria are “eight times more likely to attempt suicide” and “nine times more likely to have mental health encounters” than other servicemembers.

LGBT Lawyers are demanding that the courts disregard inconvenient facts, and focus on political conspiracy theories instead.  In their minds, President Trump was motivated by “animus” against transgender personnel, not advice from military officials. 

To prove this narrative, LGBT lawyers served three subpoenas on the Center for Military Readiness and three more organizations, trying to drag us into the litigation as “non-parties.”  The subpoenas demand production of emails and communications with White House and Pentagon officials related to the transgender issue, dating from June 16, 2015, the day Trump announced his candidacy, to the open-ended “present.”

Pretenses aside, subpoenas were issued to punish CMR for engaging in public policy discussions, and to chill our First Amendment right to participate in important debates.  Facts already known, however, contradict bogus theories.      

In June 2017, for example, AP reported that three of four military service leaders wanted one or two years more time before implementing Obama-era transgender mandates.  This is consistent with Defense Secretary Mattis’ recent congressional testimony, indicating that military leaders had expressed concerns about implementation mandates early in the Trump administration.

In response, Secretary Mattis called for a study of the issue in June 2017 – weeks before President Trump first expressed his intent to change Obama-era policies in July and August.  Mattis affirmed that his recommendations and report constituted thebest military advice he could draw from “civilian overseers and military personnel, both officer and senior enlisted.”

Secretary Mattis also informed Sen. Kirsten Gillibrand (D-NY) that he had asked military leaders whether they had input before the previous administration imposed transgender mandates.  They said “no, they did not’ – an admission that Secretary Mattis called “very, very newsworthy.”

Current Pentagon advisors have provided their best military advice, backed by facts that justify “deference” by the courts.  No one can guarantee future court decisions, but President Trump has a good chance of prevailing before the U.S. Supreme Court.  The Administration has seized the high ground, but now they will have to fight in the courts to keep it. 

Elaine Donnelly is President of the Center for Military Readiness, an independent public policy organization that reports on and analyzes military/social issues.


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