House Passes Military “Mutiny” Resolution

On March 28, 2019, Democrats in the House of Representatives staged a show of partisan disdain not just for President Donald Trump, but also for former Defense Secretary James Mattis and anyone who supports the Trump/Mattis policy regarding persons who identify as transgender.  This would include more than 60% of recently-surveyed servicemembers and veterans. [1]

HR 124 – a non-binding “sense of Congress” measure “Expressing opposition to banning service in the Armed Forces by openly transgender individuals” – should have been called the “Military Mutiny Resolution.” [2] 

The bill includes a string of inaccurate and misleading “Whereas” statements, ending with a “Resolved” clause that “strongly urges the Department of Defense to not reinstate President Trump’s ban on transgender members of the Armed Forces . . .”  

The language encourages the Defense Department to ignore the new Trump/Mattis personnel policy (which has yet to be implemented) and the professional military judgement on which it is based.  Webster’s dictionary defines “mutiny” as “passive resistance to lawful authority; to rebel against military authority.”  [3]

During the hour allotted for floor “debate,” supporters of HR 124 refused to acknowledge the detailed work of Pentagon experts who spent months studying whether the psychological condition called gender dysphoria contributes to or detracts from mission readiness and combat lethality.  Instead, House Speaker Nancy Pelosi (D-CA) and her allies substituted intimidation and strident rhetoric for fact-based arguments. [4] 

Resolution sponsor Joseph P. Kennedy (D-MA), joined with Speaker Pelosi, House Armed Services Committee Chairman Adam Smith (D-WA), Personnel Subcommittee Chairman Jackie Speier (D-CA), and several others in castigating President Trump and, by implication, Secretary Mattis and military supporters of the Trump/Mattis policy. 

Several “woke” speakers lined up to vilify the president and people who support the Trump/Mattis transgender policy as “bigots,” comparable to those who favored racial segregation in the military before President Harry Truman ended it. [5]

During her speech, Speaker Pelosi claimed that current members of the Joint Chiefs of Staff – Generals Mark Milley (Army), David Goldfein (Air Force), Robert Neller (Marine Corps) Admiral John Richardson (Navy) and Admiral Karl Schultz (Coast Guard) – had denounced the Trump/Mattis transgender policy. [6] 

A search reveals nothing supporting this claim.  However, General Milley correctly told a Senate committee last year that the transgender issue is not a “civil rights” issue. [7]  (Title VII of the Civil Rights Act of 1964 does not apply to uniformed military personnel.)

The toxic rhetoric and factual inaccuracies streaming from the Democratic side of the aisle were not a credit to Congress.  Several times the presiding officer pro tem, Hank Johnson (D-GA), cautioned Speaker Pelosi and others about “engaging in personalities,” meaning personal attacks.

Floor speakers supporting HR 124 were particularly critical of “tweets” that President Trump issued in July 2017.  His comments on Twitter, they said, constituted policy directives that were motivated by “animus” and imposed on a whim.  The record, however, contradicts that narrative.

As former Secretary Mattis said in congressional testimony last year, in June 2017 he responded to the concerns of military leaders by suspending orders to begin recruiting persons with gender dysphoria on July 1.  Mattis also initiated his own study of the previous administration’s transgender policy.[8] This occurred several weeks before President Trump informally announced his intent.

President Trump signed a formal Memorandum on August 25, 2017, but he left the door open for revisions if Secretary Mattis made a case for them.[9]  Mattis convened a Defense Department “panel of experts” to study the issue for six months. 

The panel produced a 44-page report full of reality-based findings, but advocates for HR 124 ignored inconvenient facts. [10]  Little was said about the consequences of gender dysphoria, a serious psychological condition requiring compassion, competent medical care, and honesty. 

The vote on HR 124 smacked of a media event, orchestrated for posturing politicians.  In the corridors of office buildings surrounding the Capitol, many POW/MIA remembrance flags were replaced with pink, white, and blue transgender banners. 

The displays drew justifiable outrage from the American Legion, which denounced the switching of transgender banners for POW/MIA flags with “extreme displeasure.” [11]

Messaging for Mutiny

Armed Services Committee Ranking Member Mac Thornberry (R-TX) took issue with the non-binding “messaging” bill, which was taken up outside of the normal process of writing the annual National Defense Authorization Act (NDAA). 

The “message” conveyed by HR 124 – encouraging military leaders to defy lawful policy directives from the Commander-in-Chief – was even worse than the sponsors’ disregard for legislative protocols.  None of the advocates seemed to realize how inappropriate it was to vote for a Mutiny Resolution encouraging defiance of presidential authority on a matter of policy. 

Even military veterans such as Seth Moulton (D-NY) and Tulsi Gabbard (D-HI), who should have known better, voted “Yes” on HR 124.  Rep. Joe Kennedy’s great uncle, President John F. Kennedy, never would have tolerated anything like this.

Vicky Hartzler (R-MO) joined Ranking Member Thornberry in speaking against the non-binding resolution, and all but five Republicans voted “No.”  With majority Democrats marching in lock-step, HR 124 passed 238-185 with 8 not voting and 1 “present.” [12]

The 238 members of the House who voted in favor of the Mutiny Resolution apparently think that implementing their preferred policy position is more important than fundamental principles of good order and discipline, obedience to lawful authority, and civilian control of the military.  All should be held accountable for supporting HR 124, an irresponsible resolution urging the military to disobey, ignore, or resist the lawful orders and directives of the president and leaders in the chain of command.

Heritage Action for America, Family Research Council, Concerned Women for America Legislative Action Committee, and Eagle Forum announced in advance they would “score” the vote in future candidate evaluations, and several more organizations joined with the Center for Military Readiness and other groups in raising awareness of the issue. 

The Need for Responsible Oversight, not Posturing

The Department of Defense is part of the Executive Branch.  Under the Constitution the president is Commander-in-Chief of the armed forces.  It is a dangerous day when members of the Legislative Branch try to advance their own favored policy positions by urging the military to disobey presidential orders and directives. 

Such a move is particularly inappropriate because Congress has not conducted hearings with independent experts on the transgender/gender dysphoria issue, in order to formulate sound policy that strengthens mission readiness and combat lethality in the armed forces. 

A February 27, 2019, hearing of the House Armed Services Personnel Subcommittee invited five military persons identifying as transgender, followed by James N. Stewart, a Pentagon official who explained implementation plans. [13]   The hearing would have been more informative if Chairman Speier also had invited active-duty military people who have experienced problems under the Obama/Carter policy.

These would include doctors and nurses facing conflicts with medical ethics, commanders coping with non-deployability problems due to long-term transgender treatments, women whose expectations of privacy have been violated by biological males, and chaplains struggling with transgender-related conflicts involving religious liberty. 

The armed services committees in both Houses also should hear from independent medical experts who have publicly disputed transgender theories that have no basis in scientific fact.  Absent diligent, responsible oversight, 238 House members darkened the day by voting for the Military Mutiny Resolution.

Lessons Learned about the “New Normal”

It was highly inappropriate for members of Congress to pass a resolution, even a non-binding one, encouraging defiance of the Commander-in-Chief on a matter of policy.  The fact that this measure passed, however, teaches certain lessons.

On every issue that the Trump Administration has addressed, verbal attacks and intimidation have become the rule, not the exception.  Lawmakers who want to conduct responsible oversight and vote for sound policy should prepare themselves for more of the same invective – and do the right thing anyway.

Chairman Adam Smith indicated that he likely will take up the issue in the Armed Services Committee when it writes the annual defense bill.  Rep. Speiers and Sen. Kirsten Gillibrand are expected to offer problematic legislation to restore Obama-era transgender policies.

To prepare themselves, lawmakers on both sides of the aisle should review Department of Defense informational materials that include a single-page graph summarizing all aspects of the Trump/Mattis policy. [14] 

They should also consider the statement of Judge Stephen Williams, a member of the Court of Appeals for the District of Columbia, who wrote a compelling Concurring Opinion in a 3-judge panel ruling that reversed a lower court injunction, which had been blocking implementation of the Trump/Mattis policy. [15]

Judge Williams criticized the claims of LGBT plaintiff lawyers for being “fundamentally flawed in every respect.”  Their arguments, said Williams, fail to recognize that Secretary Mattis began a study well before the presidential tweets, and the Trump/Mattis policy that was adopted in March 2018 is not a “ban” of transgenders as a class.

The Center for Military Readiness has prepared a summary of ten points that often come up in discussion of this issue:

                           The Trump/Mattis Transgender Policy -- What are the Facts?

Doing some homework won’t prevent name-calling from LGBT advocates, but a thoughtful review of credible information will help in countering frequently-heard claims that are not consistent with reality.

 Endnotes:

[1] Terence Monmaney, Smithsonian Magazine: New Poll of U.S. Troops and Veterans Reveals Their Thoughts on Current Military Policies, January 2019.

[2] HR 124, lead sponsor Joseph P. Kennedy (D-MA).

[3] Article 94, Uniform Code of Military Justice, makes mutiny a court-martial offense.  Article 82 of the UCMJ makes the solicitation of mutiny punishable by court-martial as well.

[4] See video of House Session May 28, 2019, starting at approximately 31:14. 

[5] This argument is intimidating, but lame.  The 1992 Presidential Commission on the Assignment of Women in the Armed Forces determined that President Truman signed his 1948 Executive Order 9981 for reasons of military necessity as well as civil rights.  Minority soldiers had proven themselves in battle and the nation needed them to meet “existing manpower needs” during the Korean War.   Presidential Commission Report, Nov. 15, 1992, Findings # 1.33 and 1.33A, p. C-40.

[6] See video of proceedings at approximately 54:06.  Pelosi seems to have confused statements from the military leaders she named who criticized President Trump for controversial remarks after a racially-charged incident at Charlottesville, VA.  (Those remarks, on closer examination, were widely misconstrued.)

[7] Travis Tritten, Washington Examiner, Army Chief Says Transgender Service Is Not a Civil Rights Issue, April 12, 2018. 

[8]  Travis Tritten, Washington Examiner Jim Mattis, Kristen Gillibrand Butt Heads Over Transgender Policy, Apr. 26, 2018.  Also see Excerpts of testimony, SASC hearing, April 26, 2018, time mark 1:16, emphasis added.

[9]  Whitehouse.gov: Presidential Memorandum to the Secretary of Defense and Secretary of Homeland Security, Subject: Military Service by Transgender Individuals, August 25, 2017.

[10] Defense Department Report and Recommendations on Military Service by Transgender Persons, February 2018, 44 pages. Also see CMR Special Report: Department of Defense & Military Services Should Revoke Problematic Transgender Policy Directives and Instructions, July 2017, 27 pages.

[11] American Legion News Release, Apr. 2, 2019, and Patricia Kime, Military.com, American Legion to Congress: Don’t Replace POW/MIA flags with Transgender Banners, Mar. 29, 2019.

[12] Roll Call #135: HR 124, Mar. 28, 2019.  The five Republicans voting “Yes” were Trey Hollingsworth (IN), Will Hurd (TX), John Katko (NY). Thomas W. Reed (NY), and Brian Fitzpatrick (PA).  Justin Amash (MI) voted “present.”

[13] Statement of James N. Stewart, Acting Under Secretary of Defense for Personnel & Readiness, on the DoD Transgender Policy, Feb. 27, 2019.

 [14] DoD Implementation Briefing: 5 Things to Know about DoD’s New Policy on Military Service by Transgender Persons & Persons with Gender Dysphoria (Mar. 13, 2019)  See chart showing how new policy affects different groups of people, with or without gender dysphoria.

 [15] Concurring Opinion of Judge Stephen E. Williams, U.S. Court of Appeals for the District of Columbia, Jane Doe 2 v. Shahanan, No. 18-05257, March 8, 2019, p. 61.  CMR has prepared excerpts of the Williams Concurring Opinion, linked here: CMR: Military Transgender Policy Timeline & DoD Summary Graph.