Something’s gotta give. The Unites States is fighting in Iraq, Afghanistan and Syria, with military involvement in wars or skirmishes in Pakistan, Yemen, and Somalia and North Korea upping the ante for a nuclear war at any moment. And yet, the US Army is now tearing up promised enlistment contracts for hundreds of immigrants and the Pentagon is giving transgender troops until February to serve their country before their fate is finally decided by President Trump, who may or may not take into consideration recommendations from Sec. of Defense Mattis and the Pentagon.
Meanwhile, a bipartisan group of US senators has introduced a bill to prohibit the Defense Department from kicking out trans servicemembers based solely on their gender identity. Senate Majority Leader Mitch McConnell, who refused to allow a vote on similar amendment to the defense appropriations bill, will decide if the bill will be allowed to come to the floor for an up-or-down vote in the Senate.
That may mean that the best long-term solution to the issue of open transgender military service may be through the courts. NCLR and GLAD filed a complaint Aug. 8 on behalf of Jane Does 1-5; the ACLU filed a lawsuit on Aug. 28 on behalf of the ACLU of Maryland and six currently serving trans servicemembers; and on Sept. 14, Lambda Legal and OutServe-SLDN also filed suit in the U.S. District Court for the Western District of Washington representing nine individual plaintiffs, all of whom are transgender (six serving and three who want to enlist), and three organizational plaintiffs – the Human Rights Campaign (HRC), Seattle-based Gender Justice League, and the American Military Partner Association (AMPA). The latter two also seek an immediate injunction against all steps being taken to implement Trump’s directive.
“Before the President’s vicious attack on transgender Americans, transgender service members had been serving openly and proudly in every branch of the U.S. Military for more than a year,” Lambda Legal Senior Attorney Peter Renn said in a press release. “Since the President’s tweets, and his mandate for the Pentagon to implement his ban, those same service members have been branded as unfit to serve – to do the jobs they have been doing successfully – simply because they are transgender. That harm is real, it is palpable, and it is discriminatory.”
“It is unacceptable to destroy the careers of patriotic and courageous members of the U.S. military,” said Peter Perkowski, Legal Director for OutServe-SLDN. “This ban must be stopped dead in its tracks before it goes any further so that these brave men and women can focus on their real jobs – protecting and serving the country they love.”
In addition to the legal arguments, Lambda Legal/OutServe-SLDN also included a Declaration from Admiral Mike Mullen, who became an LGBT hero when, as Chair of the Joint Chiefs of Staff, he testified before the Senate Armed Services Committee in support of repealing the harmful anti-gay Don’t Ask, Don’t Tell (DADT) policy.
“Mr. Chairman, speaking for myself and myself only, it is my personal belief that allowing gays and lesbians to serve openly would be the right thing to do,” Mullen said. “No matter how I look at the issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens.”
“For me, personally, it comes down to integrity — theirs as individuals and ours as an institution,” he said. “I also believe that the great young men and women of our military can and would accommodate such a change,” continued Mullen. “I never underestimate their ability to adapt.”
In his Declaration for transgender service members, Mullen is equally as strong. He noted that he concurred with then-Defense Secretary Ash Carter’s July 2015 assessment that “the Defense regulations regarding transgender service members ‘[were] outdated and [were] causing uncertainty that distracted commanders from our core missions’” and said he closely followed Carter’s direction to Armed Services leadership to evaluate all the implications of open trans service. The conclusion drawn after a “thorough research and evaluation process” was that an “inclusive policy for transgender troops promotes readiness. I agree with this conclusion.”
Mullen says he supported Carter’s June 2016 directive. “To reverse this policy by implementing a ban on open service would go against the best interests of thousands of service members currently serving. As the Pentagon has pointed out, it may also deprive our military of trained and skilled service members and leave vacancies that may not be easy to fill. This would harm military readiness as well as morale. The military’s prior considered judgment on this matter should not be disregarded and we should not breach the faith of service members who defend our freedoms, including those who are Transgender,” Mullen says.
“Just as gay and lesbian soldiers should not have to lie about who they are to serve, nor should transgender soldiers,” Mullen says. “The now repealed DADT was problematic and flawed in similar ways as the ban on open service by transgender service members. Both DADT and the ban on open service by transgender individuals set apart a subset of brave women and men serving in uniform and treat them worse than other soldiers for no valid reason – and both policies potentially undermine military readiness”.
“When I led our armed forces under DADT, I saw firsthand the harm to readiness and morale when we fail to treat all service members according to the same standards,” Mullen continues. “There are thousands of transgender Americans currently serving and there is no reason to single them out to exclude them or deny them the medical care that they require. 15. Moreover, I strongly believe that we should not return to the days of ‘forc[ing] young men and women to lie about who they are in order to defend their fellow citizens.’”
“Admiral Mullen is the epitome of leadership and clarity,” Matt Thorne, executive director of OutServe-SLDN, tells the Los Angeles Blade. “I have never respected someone more and I am grateful for his continued leadership and eloquence. He has a keen understanding and, as he says, he ‘saw firsthand the harm to readiness and morale when we fail to treat all service members according to the same standards.’ His statements and work in repeal of Don’t Ask Don’t Tell seven years ago is the same foundation and premise he uses in his Declaration for our transgender service members; that no service member should be treated less than any other.”
There’s an interesting historical sidebar for LGBT military observers, however. While many, including Mullen, note how supporters of the ban use the same or similar language to that used to oppose repealing DADT, there is some very important and distinct differences. For one, troops have had a year of experience working side by side with trans servicemembers—with no incidents. But in 2010, it was the threat of chaos, the not-knowing that changed many military minds on DADT’s repeal.
Sept. 8, 2010, District Court Judge Virginia A. Phillips seated in Riverside, California declared the anti-gay Don’t Ask, Don’t Tell military policy unconstitutional in a lawsuit filed by the Log Cabin Republicans. “The ‘don’t ask, don’t tell’ act infringes the fundamental rights of United States service members in many ways,” she wrote in her 86-page opinion.
“In order to justify the encroachment on these rights, defendants faced the burden at trial of showing the ‘don’t ask, don’t tell’ act was necessary to significantly further the government’s important interests in military readiness and unit cohesion. Defendants failed to meet that burden.”
Then, very quietly, all hell broke loose. LGB service members around the globe were free to be open about their sexual orientation as Phillips also issued an injunction against the military enforcing DADT. The DoD scrambled to get the court of appeals to overturn the district court’s injunction, which was granted, in part, the appeals judges noted, “because legislation pending before Congress to repeal the policy could render the case before them moot,” as CNN reported.
The House had passed the repeal provision, and the Senate was due to consider it as part of the defense authorization bill. After that failed, a stand alone bill was introduced with passed with no nails left to bite.
But that brief period of time when DADT had been formally killed by the district court resulted in a serious jolt of confusion and temporary chaos, something the Pentagon reasonably considers anathema. That prompted several military officials to change their minds about a legislative repeal of DADT, preferring legislative restrictions for in-depth planning and training the troops to chaos.
Mullen acknowledged this in his follow up statement to Sen. John McCain, Chair of the Senate Armed Service. “Finally, Mr. Chairman, I believe now is the time to act. I worry that unpredictable actions in the court could strike down the law at any time, precluding the orderly implementation plan we believe is necessary to mitigate risk,” Mullen wrote in 2010, backing legislation for repeal of DADT.
Despite the similarities to the repeal of DADT, the differences are striking: there could be disruption in the ranks, in military readiness and good order and discipline if the transgender ban is re-instated after a year of training and integration, especially if essential war-time personnel are discharged. Their friends, supporters and commanding-officer allies could be impacted, too. The all-volunteer Armed Forces would be branded as biased, not cool among the young they need to recruit.
Gillibrand says she had to votes to pass the pro-trans amendment to the defense bill on Thursday, but McDonnell would not let it proceed. Will he let a stand-alone bill be voted on the Senate floor? And will the courts stall a decision on any of the lawsuits if a stand-alone bill would render the cases moot?
Most importantly, unlike President Obama who listened to his Defense Secretary and the Chair of his Joint Chief of Staffs, President Trump is more likely to listen to whoever whispers in his ear last, as long as they sound like his base and kiss him with applause. Would Trump sign a bipartisan bill protecting transgender servicemembers or veto it because he needs the evangelical vote? Probably the latter, which is why these lawsuits about individual rights under the US Constitution matter.