Donald Trump seems to have a pattern: declare a progressive Obama-era policy dead then order someone else to deal with it. That’s what he did with DACA and Congress still hasn’t figured out a fix. And that’s what he did with former Defense Sec. Ash Carter’s lifting of the ban on open service by transgender members of the military—a policy much studied, agreed upon and embraced by the armed forces, and trained for by the troops. It’s a policy trans servicemembers and recruits are counting on in California, the largest state with the most military bases and servicemembers.
Trump’s infamous July 26, 2017 tweet threw everything into chaos. “After consultation with my Generals and military experts,” he tweeted, the government would no longer allow transgender individuals “to serve in any capacity in the US Military.” Trump then dumped the upheaval in the lap of Defense Sec. James Mattis and Gen. Joseph Dunford, chair of the Joint Chiefs of Staff, to figure out how to ban trans people from serving.
Mattis convened a panel of experts “to provide advice and recommendations on the implementation of the president’s directive.” In the meantime, he said, “current policy with respect to currently serving members will remain in place.”
Theoretically, if Mattis had a problem with the policy, Trump gave him cover to suspended it then and there. But instead he kept the policy and issued a memo reminding all members of the military to treat everyone with dignity and respect.
It’s been a roller coast ride ever since, resulting in court-ordered injunctions from four lawsuits, including one from Equality California and California Attorney General Xavier Becerra, saying the directive is discriminatory.
But apparently Mattis did not meet his Feb. 21 deadline. “The secretary hasn’t made his recommendation to the president yet,” Maj. David Eastburn, a Pentagon spokesperson, told the Washington Blade’s Chris Johnson. The looming deadline for enactment is March 23.
So while the collective holding of breath continues, a Feb. 20 Buzzfeed story lent speculation to the possibility that no matter what Mattis recommended—including following court orders—the White House would do what it wanted anyway. According to emails obtained by Buzzfeed, Dunford told his top brass the day after Trump “ban” tweet that he was “not consulted,” as Trump touted, and the abrupt directive “was unexpected.”
In fact, as the LA Blade and others have reported, Vice President Pence and his Svengali sidekick, Family Research Council head Tony Perkins, orchestrated the whole trans ban in the first place—and Trump may decide to go with his loyal evangelical base. Then Mattis, ever the good soldier, would have to follow whatever presidential orders he’s given.
But what about that stumbling block of those court orders? It appears the Pence/Perkins team has devised a new tactic to try to get around the injunction: if they convince the judge that the White House white paper is a “new policy,” the LGBT lawsuits against the ban would then be rendered moot.
Except that’s blatant obfuscation, a version of “the fruit of the poisonous tree.” If the whole purpose of Trump’s directive was to find a way to ban trans people, anything short of total acceptance of trans people is tainted by the original bias.
“It’s very clear the courts in four cases enjoined the president and the military from taking steps that harm transgender people who serve or enlist. It is not clear what the Trump administration may decide,” says Equality California Executive Director Rick Zbur. But the courts will enjoin any attempt by the administration to enforce the ban or deprive trans servicemembers of medical care.
“This president is erratic and it is unclear what kind of crazy action he might take,” say Zbur. “What we do know is that the policy to permit trans service was study by the military—which was a long process—and supported by the military hierarchy….Nothing has changed since the military reviewed this policy during the Obama administration—that’s what we know.
“I assume Gen. Mattis will continue to abide by what was the result of the military’s long process of studying this matter in detail,” Zbur continues. “There is no justification for treating trans servicemembers any differently from any other military personnel. And any special test applied to trans individuals or women is unlawful and the existing injunction would prevent implementation of anything like that.”