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Posted on May 3, 2018 Print this Article

Issue 51: May 2018

This edition of CMR E-Notes presents significant news that will affect the future of our military and the Center for Military ReadinessPresident Donald J. Trump has taken the high ground with new policies regarding transgenders in the military.  At the same time, transgender activists have filed four lawsuits demanding that federal judges issue orders to usurp President Trump’s policy-making authority over the military.

Here's a surprise.  Lawyers representing transgender activist groups are not stopping with legal action against the President.  Now they are trying to drag this organization -- the Center for Military Readiness -- into federal court.

Transgender plaintiffs in lawsuits against President Trump have served two subpoenas on CMR as a "non-party" in the litigation.  They are demanding documents and emails that they think will prove a conspiracy theory about President Trump's motives for changing transgender policies. (See Part 2, below.)

CMR refuses to be intimidated, and we will not stop writing the truth about political correctness and social issues in our military.  We are celebrating our 25th Anniversary, and the information below demonstrates why we must persevere in our efforts to support readiness and morale in the only military we have.

1. Trump Administration Does the Right Thing on Transgenders in the Military

We were not sure whether or how President Donald Trump would deliver on his stated intent to review and revoke President Barack Obama's policies regarding transgenders in the military.  Following a series of CMR Special Reports, Policy Analyses, and articles published even before the Inauguration, CMR asked the President to "Just Do the Right Thing."

On March 23, President Trump approved previously-undisclosed recommendations he received from Secretary of Defense James Mattis on February 22.  Secretary Mattis, a retired Marine General, supported his professional advice with a 44-page, very detailed report, which makes a convincing case for restoring sound policies regarding persons who identify as transgender or suffer from a difficult psychological condition called gender dysphoria.

This article, posted on our website, highlights new information and empirical data drawn from Defense Department experiences since June 2016:

This comprehensive CMR Special Report is the first in-depth analysis of the Mattis/DoD policy:

The 44-page Mattis/DoD report is a valuable resource produced in consultation with military leaders, multi-disciplinary health care experts, and even currently-serving transgenders who will not be adversely affected when policies officially change.

Among other things, the report:  

  • Asserts sound priorities: mission readiness and combat lethality.
  • Honors previous commitments with "grandfather" provisions, nullifying lawsuit claims.
  • States that persons with gender dysphoria will not be eligible for military service.
  • Allows some gender-non-conforming individuals to serve as persons of their biological gender, if they meet other medical and deployment requirements.
  • Reveals DoD data gathered since 2016, showing that 994 service members with gender dysphoria accounted for 30,000 mental health visits.
  • Cites newly-released data from DoD Health System records showing 3-times greater (300% increase) in medical costs for persons seeking treatment for gender dysphoria.
  • Quotes commanders who said they had to use operations and maintenance funds to pay for extensive travel throughout the U.S. for specialized medical care.
  • Reports that individuals with gender dysphoria are (sadly)"eight times more likely to attempt suicide" and "nine times more likely to have mental health encounters" than other servicemembers.
  • Notes the lack of credible studies proving that transgender treatments and surgeries are effective in reducing psychological problems and high risks of suicide.
  • Criticizes the 2016 RAND Report, which failed to examine the potential impact of problems with readiness, personal safety, perceptions of fairness and equity, privacy, and other factors that are critical to unit cohesion.

This is a concise summary of persuasive facts that justify changes in Department of Defense policies in order to put military readiness first:

Federal judges who have issued preliminary injunctions keep insisting that President Trump should have sought the opinions of military leaders like those who implemented former Defense Secretary Ashton Carter's transgender mandates.  But there was no consultation with military leaders in 2015 or 2016.  They all were duty-bound to implement orders given them at the time.

  • Current Secretary of Defense James Mattis confirmed this in recent testimony before the Senate Armed Services Committee.  In response to questions from Sen. Kirsten Gillibrand (D-NY), Mattis said that he had asked military leaders whether they had been invited to provide input before Secretary Carter imposed transgender mandates.  They said "no, they did not" -- an admission that Secretary Mattis called "very, very newsworthy."
  • Secretary Mattis also explained why military leaders appearing before Sen. Gillibrand at previous budget hearings were constrained from answering her questions about the effects of Obama-era policies on "unit cohesion," which she inaccurately redefined to mean satisfaction among transgender servicemembers.  Secretary Mattis said it would be "impossible" for military service chiefs to accurately respond to her questions because "[U]nder the Carter policy, the reporting is opaque."  He added that the Carter policy prohibits negative information from rising to service chief levels because it is considered private information.

Secretary Carter ordered military commanders and medical personnel to act upon unscientific theories regarding human gender identity, including the biologically unsound notion that alterations in personal appearance can change a man into a woman or a woman into a man.

To make a case for President Barack Obama's pre-determined conclusions, Secretary Carter commissioned and paid for the 2016 RAND report, which was largely based on mistaken assumptions and selective information that relied on less than credible sources.

In his recommendations provided to President Trump, Secretary Mattis criticized what he called "significant shortcomings" in the RAND report.  CMR's analysis of the Mattis/DoD report explains why that comment was an understatement.

The CMR Special Report notes several ways that the policy could be strengthened:

  • The Department of Justice must continue to protect presidential prerogatives against federal judges who have exceeded their authority.
  • While litigation is in progress federal judges are still running the military, but the situation could change if the U.S. Supreme Court intervenes.  In the interest of fairness, new recruits enlisted under court orders should be informed that their contracts are being issued on a conditional basis.
  • For the sake of clarity and morale, personal conduct regulations should make it clear that disciplinary rules apply at all times, on-base and off-base.

These matters require attention, but first the Administration must fight and win legal battles so that President Trump's new policies can take effect.

Articles I and II of the U.S. Constitution invest policy-making power in the Legislative and Executive branches of government, respectively.  The Judicial branch, established under Article III, has no power to usurp presidential powers in national defense matters, including decisions about the composition of the armed forces.

No one can guarantee future rulings, but the Mattis/DoD recommendations and report will provide a powerful rationale for Supreme Court intervention on constitutional grounds, especially in view of many legal precedents justifying "deference" to the elected branches of government on matters of national defense.

2. Transgender Plaintiffs Subpoena CMR in Pursuit of Conspiracy Theories

When President Trump formally announced his intent to review and revise Obama-era policies on August 25, 2017, a number of transgender servicemembers filed predictable lawsuits.  Representing them were LGBT activist groups such as the Human Rights Campaign (HRC), the GLBTQ Legal Advocates & Defenders (GLAD) and the American Civil Liberties Union (ACLU).

District judges in four federal courts — the District of Columbia, Baltimore, Seattle, and the Center District of California — issued nationwide preliminary injunctions (PIs) preventing President Trump from exercising his executive power to change Obama-era policies regarding transgenders in the military.  The over-reaching PIs ordered President Trump and Defense Secretary Mattis to restore all Obama-era military transgender policies by January 1, 2018, including unprecedented mandates to induct new recruits who suffer from gender dysphoria.

The Department of Justice appealed the first two injunctions to the Courts of Appeals for the District of Columbia and the Fourth Circuit, respectively, to no avail. CMR and other organizations recommended an immediate petition to the Supreme Court for a stay of these orders, but administration officials decided to wait for release of findings from a "panel of experts" study that President Trump initiated with a Memorandum dated August 25, 2017.

  • As directed, on February 22 Defense Secretary James Mattis submitted recommendations on the issue to President Trump, which were fully supported by the comprehensive 44-page Mattis/DoD Report produced by the Pentagon panel. (See analysis above.)
  • With a 2-page Memorandum issued on March 23, President Trump concurred with Secretary Mattis' recommendations.  The new policy will not be implemented, however, until the Supreme Court intervenes to lift the lower courts' preliminary injunctions, which are usurping the constitutional powers of both the President and Congress.

On March 23, the Justice Department filed a "Motion to Dissolve" the Seattle court's preliminary injunction, incorporating in their filing the new Mattis/DoD report and recommendations.  The Justice Department also noted that currently-serving transgender plaintiffs in that and other district court cases had no standing to sue, since they were "grandfathered" under new Trump policy provisions that continue to honor previous commitments to the plaintiffs.

   a.   Facts vs. Conspiracy Theories

Seattle district Judge Marsha Pechman dismissed the government's motion, and ordered that discovery proceed. She also ordered the White House to release visitor logs, emails, and other documents that the plaintiffs believe will help them make their case.

LGBT attorneys who are conducting depositions and demanding documents are trying to prove what amounts to a conspiracy theory.   In their minds, President Trump did not announce a change in policy for pro-defense reasons.  He must have been motivated by personal "animus" against transgenders, not the advice of military leaders.

They also believe that President Trump must have consulted with a few private organizations, including the Center for Military Readiness, who supposedly influenced President Trump, Vice President Mike Pence, and other White House officials who, they say, wrote the new transgender policy.

Like all public policy organizations, CMR hopes that our work will be read in high places, but this conspiracy theory has no basis in fact.

  • Contrary to theories believed by the transgender plaintiffs and their attorneys, the Associated Press reported at the time that three of four military service leaders wanted one or two years more time before implementing Obama-era mandates to begin recruiting new transgender personnel by July 1, 2017.
  • In recent testimony before the House Armed Services Committee, Defense Secretary Mattis Secretary was asked about outside groups that might have influenced his policy decisions.  In reply, Secretary Mattis said of the DoD report "It was the best military advice I could draw from civilian overseers and military personnel, both officer and senior enlisted." (HASC video, time marker at 1:01:24 to 1:01:44)
  • Secretary Mattis also said that when military leaders expressed concerns about implementation questions early in the Trump administration, he called for an in-house study of the issue on June 30, 2017.  (HASC video at 2:32:26 to 2:33:32)  That review began weeks before President Trump first expressed his intent to change Obama-era policies with July tweets and his presidential Memorandum in August, 2017.

Inconvenient facts discredit LGBT conspiracy theories but getting to the truth is not their goal.

   b.   CMR Targeted for Harassment with Subpoenas
 

In the Jane Doe v. Trump case being handled by Washington, D.C Judge Colleen Kollar-Kotelly, the White House is claiming executive privilege in refusing to provide visitor logs and other documents that the plaintiff's attorneys are hoping will prove their "animus" theories.

Since the White House won't cooperate in the fishing expedition, plaintiff attorneys slapped subpoenas on the Center for Military Readiness, a non-party, demanding speedy production of emails that they think might be helpful in making their case.

To prove their bogus theories about President Trump's motives, plaintiff attorneys handed two subpoenas to Michigan-based CMR, in February and April.

The subpoenas demand that CMR search our computers and submit to the plaintiffs suing President Trump all e-mails addressed to the White House and Defense Department officials that pertained to military service by people who identify as transgender.

The first subpoena demands production of emails from Inauguration Day (January 20) until September 1, 2017, and the second one demands emails from September 1 through “the present.” 

These intrusive subpoenas are open-ended attempts to infringe upon the First Amendment rights of the Center for Military Readiness to research, report, and analyze national defense policies, and to petition the government on matters of public policy.

CMR is not the only target.  Plaintiffs have imposed similar demands on the Family Resource Council (FRC), The Heritage Foundation, and Liberty Counsel.

CMR tried in good faith to accommodate reasonable requests, but it soon became apparent that the plaintiffs’ demands were not reasonable or acceptable.  As of this writing, the ball is back in the court of the plaintiffs’ attorneys.  CMR is prepared to defend its right to communicate with government officials, without being forced to allow those who oppose CMR’s policy positions to rummage through our emails.

— CMR

* * * * * *

The Center for Military Readiness is an independent public policy organization that reports on and analyzes military/social issues.  More information is available on the CMR website, www.cmrlink.org, and CMR President Elaine Donnelly can be reached at elaine@cmrlink.org or 734/464-9430.

Posted on May 3, 2018 Print this Article