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2017-JUL/AUG: Trump's memo. Response.
Public opinion polls. Lawsuits filed. Cost.

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Image by Maiconfz. Downloaded from Pixabay. CC0 Creative Commons

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Part 7

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2017-AUG-25: President Trump signed a memo that implements his new policy to discriminate against transgender service members. General Mattis responds:

The President's memo states that:

  • No new transgender individuals will be allowed to join the Military unless and until the Secretary of Defense recommends otherwise.

  • No new transgender individuals will be allowed to join the Coast Guard unless and until the Secretary of Homeland Security recommends otherwise.

  • For transgender service members who are currently serving, the departments of Defense and Homeland Security will determine what to do with them based on how their continued service affects military effectiveness, lethality, resources and unit cohesion.

  • Effective 2018-MAR-23, sex confirmation surgery (formerly called sex change surgery) will be stopped, except for those service members currently being treated. 1

  • Implementation plans are to be submitted to the President by 2018-MAR-25.

Webmaster's comment:

We believe that this is the first time in the history of the U.S. Armed Forces that discrimination against a group of potential service members was phased out and later restored. In the past, after the military terminated discrimination on the basis of race, gender, and sexual orientation, the changes were permanent.

Sarah McBride, National Press Secretary of the Human Rights Campaign (HRC) said:

"It is an unconscionable and unconstitutional breach of trust for the president to single out brave transgender service members and able recruits for discrimination." 2


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On AUG-28, two lawsuits were quickly filed to challenge the ban:

  • The American Civil Liberties Union of Maryland filed a lawsuit "Stone v. Trump" in federal court on behalf of six transgender service members. It is based on the 14th amendment to the U.S. Constitution which guarantees citizens due process and equal protection. This Amendment has been the basis of many past, successful, and major legal human rights challenges that have affecting minorities, including the legalizing of interracial marriages, the decriminalizing of consensual same-gender sexual behavior in private, and the legalizing of marriage by same-sex couples. 3

    The ACLU claims that President Trump's transgender:

    "... ban is based on uninformed speculation, myths and stereotypes, moral disapproval, and a bare desire to harm this already vulnerable group."

Josh Block, senior staff attorney with the ACLU’s LGBT & HIV Project, said:

"Each and every claim made by President Trump to justify this ban can be easily debunked by the conclusions drawn from the Department of Defense’s own review process. Allowing men and women who are transgender to serve openly and providing them with necessary health care does nothing to harm military readiness or unit cohesion. Men and women who are transgender with the courage and capacity to serve deserve more from their commander-in-chief. 4

  • Lambda Legal and OutServe-SLDN filed a lawsuit in the U.S. District Court for the Western District of Washington state on behalf of three persons and two other groups:

    "... two individuals who seek to join the military; one current service member who seeks appointment as an officer; the Human Rights Campaign; ... and [the] Gender Justice League."

    Peter Renn, Lambda Legal Senior Attorney said:

    "This ban not only wrongfully prevents patriotic, talented Americans from serving, it also compromises the safety and security of our country. Thousands of current service members are transgender, and many have been serving openly, courageously and successfully in the U.S. military for more than a year -- not to mention the previous decades when many were forced to serve in silence. Once again attacking a vulnerable population based on bias, political opportunism and demonstrably untrue ‘alternative facts,’ President Trump is denying brave men and women the opportunity to serve our country without any legitimate justification whatsoever."

    Plaintiff Staff Sergeant Catherine Schmid said:

    "I love serving my country, which I’ve been doing for more than 12 years. Since the ban on open service by transgender men and women was lifted, I’ve been able to live and serve as my authentic self, which has allowed me to form stronger bonds with my fellow service members."

    Peter Perkowski, Legal Director for OutServe-SLDN, said:

    "We promised that we would sue if the president took this action. The law is on our side; justice is on our side. And we are on the side of every single transgender service member and those who want to serve. The nation’s courts exist to protect the people whom tyrants would otherwise abuse. Trump can’t tweet his way out of this one." 5

On AUG-29, General Mattis, the Secretary of Defense, announced that he was setting up a panel of experts to study the ban and recommend how to implement it. He will then advise the President. He said:

"Once the panel reports its recommendations and following my consultation with the secretary of Homeland Security, I will provide my advice to the president concerning implementation of his policy direction. In the interim, current policy with respect to currently serving members will remain in place." 6

His response appears ambiguous with regard to the scheduling of future gender confirmation surgery for transgender members of the Armed Forces and Coast Guard. Carlos Garcia, writing for The Blaze stated that:

"Secretary of Defense James Mattis issued a statement of implementation of President Trump's transgender ban that many believed actually undermined his order." 7

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Federal District Judge invokes temporary injunction against President Trump's transgender directive:

District Court Judge Colleen Kollar-Kotelly concluded that the plaintiffs in the lawsuit raised by GLAD and NCLR during August are likely to succeed. She issued a temporary injunction. Trump's directive cannot be enforced while the case is being heard in court. She wrote:

"As a form of government that classifies people based on their gender identity, and disfavors a class of persecuted and politically powerless individuals, the President’s directives are subject to a fairly searching form of scrutiny. ... The court finds that a number of factors—including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the President’s announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself — strongly suggest that Plaintiffs’ Fifth Amendment claim is meritorious."

She noted that while the government’s arguments for dismissal of the request for an injunction are:

"... perhaps compelling in the abstract, [they] wither away under scrutiny. ... The memorandum unequivocally directs the military to prohibit indefinitely the accession of transgender individuals and to authorize their discharge. This decision has already been made. These directives must be executed by a date certain, and there is no reason to believe that they will not be executed. Plaintiffs have established that they will be injured by these directives, due both to the inherent inequality they impose, and the risk of discharge and denial of accession that they engender."

Referring to the mlitary's 2016 study which led to allowing transgender persons to serve in the military, she said that the government's argument for the transgender ban:

"... appear to be hypothetical and extremely overbroad. ... As far as the court is aware at this preliminary stage, all of the reasons proffered by the president for excluding transgender individuals from the military in this case were not merely unsupported, but were actually contradicted by the studies, conclusions and judgment of the military itself."

Shannon Minter, NCLR’s legal director, issued a statement, saying:

"This is a complete victory for our plaintiffs and all transgender service members, who are now once again able to serve on equal terms and without the threat of being discharged."

Jennifer Levi, director of GLAD’s transgender rights project, issued a statement, saying:

"This court saw straight through the smokescreen the government tried to create to hide the bias and prejudice behind Trump’s change in military policy. This clear, powerful ruling confirms that there is no legitimate reason to exclude transgender people from military service. ... The President abruptly announced [the ruling], via Twitter -- without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans -- that all transgender individuals would be precluded from participating in the military in any capacity. These circumstances provide additional support for plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy."

However, it wasn't a complete victory for transgender equality, because Judge Kollar-Kotelly left the ban on funding gender reassignment surgery intact.

Tony Perkins, who heads the conservative Family Research Center, said:

"This is where judicial activism is leading us. The courts have moved beyond legislating on the invented rights of abortion and same-sex marriage to clearly usurping the constitutional authority of the executive branch. The president has the primary task of protecting Americans, but we see the courts weakening his immigration policies designed to protect America from threats and now telling the commander-in-chief how to run the military." 8

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2017: Estimates of the cost of allowing qualifying transgender individuals to serve in the military:

  • The total U.S. Department of Defense budget is expected to be $640 billion dollars. 9

  • At the top of this page, the text on a sign held by a pro-equality protestor said that the cost to the military is 0.001% of the total military spending.

  • The RAND analysis commissioned by the Department of Defense estimated between $2.4 million and $8.4 million annually for the cost of gender confirmation surgery. That would be between .0003% and 0.001% of the total military spending.

  • The New England Journal of Medicine in 2015 estimated the cost at $4.2 million to $5.6 million. That would be between 0.0007 to 0.0009% of the total military spending.

These values seem to be more or less consistent. One can probably assume that the pro-equality protestor is correct: the medical cost of transgender surgery would be less than 0.001% of the total military spending.

Peter Sprigg writes for the Family Research Council, a conservative Christian advocacy group that has been listed as an active anti-gay hate group by the Southern Poverty Law Center. 9,10 The Council computed a very different value, which included the cost of potential lost time of deployable service. They estimate values almost 100 times greater: U.S. $190 to 370 million per year (.03 to .06%). 11 That works out to $0.59 to $1.14 per year per person in the country, or $0.001% to $0.002% of the Gross Domestic Product per person. Not a large amount.

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Previous articles in this series on transgender persons in the U.S. military:

The above article is Part 5 in a series of articles on transgender persons in the U.S. military. Previous essays are:

  • Part 1: 2011/2012: Overview. Support. Current military policies. Care for veterans.

  • Part 2: 2016: Previous ends to discrimination by the military. Pentagon announces an end to discrimination against transgender members. Negative reactions.

  • Part 3: 2016: More negative reactions to the ending of discrimination. Positive reactions.

  • Part 4: 2016: President Trump's ban on transgender persons in the military 

  • Part 5: 2017: Trump bans transgender military service members via tweets. Federal court blocks the move.

  • Part 6: 2017-JUL/AUG: Impact on Trump's Ban of Transgender Military Service members. Public opinion polls. Court cases.

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A helpful list:

  • The Toronto Star has a list of false claims made by President Trump. At the end of his first six months in office, the list totals 447 false claims. They average 2.4 per day. At this rate he will accumulate over 3,500 false claims by the end of his first term in office. Daniel Dale, writing for the Star, commented:

    "... Trump has proven uniquely willing to lie, exaggerate and mislead. By all expert accounts, he is more frequently inaccurate than any of his predecessors." 12

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Gordon Lubold, "White House Sets Rules for Military Transgender Ban," The Wall Street Journal, 2017-AUG-23, at: https://www.wsj.com/
  2. Merrit Kennedy, "2 Lawsuits Challenge Trump's Ban On Transgender Military Service," NPR, 2017-AUG-28, at: http://www.npr.org/
  3. "ACLU sues Trump over transgender military ban," Associated Press, 2017-AUG-28, at: http://www.latimes.com/
  4. "ACLU Files Lawsuit Challenging Trump’s Transgender Service Member Ban," ACLU, 2017-AUG-28, at: https://www.aclu.org/
  5. "HRC Represented By Lambda Legal & OutServe-SLDN in Lawsuit Against Trump’s Trans Military Ban," Human Rights Campaign, 2017-AUG-28, at: https://www.hrc.org/
  6. Tom Vanden Brook, "Mattis freezes transgender policy; allows troops to continue serving, pending study," USA Today, 2017-AUG-29, at: https://www.usatoday.com/
  7. Carlos Garcia, "Defense Secretary Mattis halts Trump’s transgender ban until this happens." The Blaze, 2017-AUG-29, at: http://www.theblaze.com/
  8. Claire Chretien, " 'Judicial activism': Judge blocks Trump’s ban on transgenders in the military," Life Site News, 2017-OCT-31, at: https://www.lifesitenews.com/
  9. "Intelligence Files: Family Research Council," Southern Poverty Law Center, 2013, at: http://www.splcenter.org/
  10. "Intelligence Report, "18 anti-gay groups and their propaganda," Southern Poverty Law Center, Winter 2010, Issue #140, at: http://www.splcenter.org
  11. Peter Sprigg, "Transgender Policy Could Cost Military Billions Over Ten Years," Family Research Council, 2017-JUL, at: http://www.frc.org/
  12. Daniel Dale, "Donald Trump just had his most dishonest week as president: 7 days, 34 false claims," Toronto Star, 2017-JUL-27, at: https://www.thestar.com/

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Copyright © 2017 by Ontario Consultants on Religious Tolerance
Latest update : 2017-NOV-01
Author: B.A. Robinson
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