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Posted on Apr 4, 2020 Print this Article

Legal Battle Over Trump/Mattis Transgender Policy: Update #5

Advocates of social causes enjoyed free rein during the Obama Administration, and they are still pressing hard to impose their agenda on the military.  In the summer of 2017, when President Donald Trump announced his intent to review and revise the previous administration’s transgenders in the military policy, activist lawyers filed lawsuits in four federal courts around the country, challenging Trump’s revocation of the Obama policy.

The same activists targeted the Center for Military Readiness (CMR), serving subpoenas on CMR to obtain information that they thought would help them prevail in their lawsuits against President Trump.  The following article provides an update on the legal battle that was triggered when the Trump Administration made policy changes that deserve continued support.

Background

In June 2017, Secretary of Defense James Mattis responded to the concerns of military leaders by calling for a six-month review of Obama Administration transgender mandates.  On July 26, President Trump posted three tweets announcing his intent to review and revoke Obama’s policies.

On August 25, President Trump called for a Pentagon review of the subject, and Secretary of Defense Mattis organized a “Panel of Experts” that produced a 44-page Report and Recommendations.

The panel’s report presented detailed Department of Defense (DoD) data documenting high health care costs and other issues affecting morale, cohesion, and readiness to deploy worldwide on short notice.  A 32-page CMR Special Report analyzed the DoD report data, which made a compelling case for change.

On February 22, 2018, Secretary Mattis submitted recommendations for a new policy regarding persons who identify as transgender or suffer from gender dysphoria.  Secretary Mattis’ 3-page Memorandum was based on sound principles that assigned priority to mission readiness and combat lethality. 

Mattis also noted that unlike previous reviews on military service by transgender individuals, the Panel's analysis was informed by the Department's own data obtained since the previous administration’s policy began to take effect in 2016.  President Trump approved Secretary Mattis’ recommendations and issued a March 23, 2018 Memorandum to establish the new Trump/Mattis policy.

As the Department of Defense explained in a Five-Point Summary, the Trump/Mattis policy takes a nuanced approach that:

a) Allows persons identifying as “transgender” but without gender dysphoria to serve in their biological gender, if they have been “stable” for 36 months and meet requirements for deployability; b) Disqualifies persons with gender dysphoria from military service; and c) Retains “grandfathered” personnel identifying as transgender and receiving treatment under previous administration policies.

Under Article II of the U.S. Constitution, President Trump had every right to change the previous administration’s policies and to do so for reasons advancing mission readiness and combat lethality.  Lawyers for plaintiffs in the lawsuits are trying to prove otherwise.

No one can guarantee a future court decision, but it was a promising sign when the  U.S. Supreme Court issued a preliminary ruling last year, allowing the Trump/Mattis policy to be implemented while the underlying litigation continues.

SLAPPing CMR

Even before completion of the Pentagon’s study, LGBT groups and plaintiffs sought nationwide federal court injunctions to nullify Trump’s policy that, they claimed, was determined by his tweets in July.

Plaintiffs in the four coordinated lawsuits included well-funded LGBT advocacy groups such as the Human Rights Campaign (HRC), LAMBDA Legal, and OutServe-SLDN.  Plaintiffs also included individuals who identified as transgender who were serving under the Obama policy and individuals who identified as transgender and wished to join the military.

Four federal district judges, in Washington, D.C., Seattle, WA, Baltimore, MD, and Riverside, CA, ruled in the plaintiffs’ favor.  This was only the beginning of complex litigation that is probably destined for review by the Supreme Court.

Plaintiffs’ general claim was that President Trump’s motivation for revoking the Obama policy and reinstating the long-standing medical disqualification was that he harbored “animus” towards transgenders.  Therefore, they argued, Trump’s policy decision as Commander-in-Chief should be declared unconstitutional.

As part of their wide-ranging discovery effort, and to prove unfounded theories about President Trump’s motives for changing the military transgender policy, plaintiff attorneys served subpoenas on several “non-party” individuals and organizations, including CMR, the Heritage Foundation and the Family Research Council.

LGBT activist lawyers served three subpoenas on the Center for Military Readiness – two in the Washington, D.C.-based Doe v. Trump case and one in the Seattle-based Karnoski v. Trump case.  (This was an example of what is often called “Strategic Litigation Against Public Participation”SLAPP for short.)

By seeking access to communications between CMR and various public officials and private individuals concerning the transgender policy, plaintiffs are trying to prove that CMR harbored animus towards those with gender dysphoria, communicated that animus to others who (like COVID-19) passed that animus along to Donald Trump, who was then “infected” with that animus, and acted on that animus in reversing the Obama policy.

To call such a theory absurd was an understatement.  CMR vigorously resisted plaintiffs’ efforts to gain access to its emails.

From the beginning, CMR has been represented by an outstanding legal team – Law Prof. Emeritus William A. Woodruff, a retired Army Colonel and Judge Advocate, and the Thomas More Law Center of Ann Arbor, Michigan, which is headed by Chief Counsel Richard Thompson.

First Amendment Rights at Risk

The subpoenas demanded access to emails and communications regarding the transgender issue with the Trump campaign, the White House, or Pentagon officials, during a span of time from the first day of the Trump presidential campaign in New York City to “the present.”

As CMR President Elaine Donnelly stated in a news release, plaintiffs have been 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.  None of this is true. "

The subpoenas sought to violate CMR’s First Amendment rights of free speech, and to punish CMR for engaging in public policy discussions as an independent source of information and analysis.  Two years of legal battles have not intimidated, silenced, or deterred CMR from its mission.

Fighting for CMR Principles

As CMR has often stated, America has only one military with a critically important, unique mission: defending America.  We cannot and must not sacrifice the military’s ability to fight and win our nation’s wars on the altar of political correctness or identity politics.

President Obama, as Commander-in-Chief, had the constitutional authority to change policies regarding transgenders and persons suffering from gender dysphoria.  The Center for Military Readiness – an independent non-profit organization with a focus on preserving and improving the combat capabilities of our Armed Forces – had the constitutional right to speak out against that policy choice.

Consistent with CMR’s purpose, when President Obama revoked the long-standing medical enlistment disqualification of those with gender dysphoria, CMR spoke out against that policy by analyzing its purpose and implementing directives in a CMR Special Report.  As with other physical or psychological medical conditions that detract from readiness to deploy world-wide on short notice, the psychological condition called gender dysphoria is problematic.

Pentagon data on the consequences of Obama’s policy later revealed high costs and complications of medical treatment that were detracting from deployability and readiness, as well as higher suicide rates associated with gender dysphoria.  These issues raised serious questions about the wisdom of President Obama’s policy mandates and the need for constructive change.

President Trump’s Right to Change Policy

CMR exercised its First Amendment right to oppose President Obama’s policy decisions.  So did the new President, Donald J. Trump.

In the summer of 2017, President Trump tweeted that he, in the exercise of his constitutional powers as the new Commander-in-Chief, would reverse the decision of his predecessor.  In furtherance of the exercise of that legitimate constitutional power, President Trump issued an August 25, 2017, Memo directing Defense Secretary James Mattis to study the matter and to make recommendations for appropriate changes in the policy.

CMR applauded President Trump’s decision and published several articles, Policy Analyses, and Special Reports on the issue, all of which were posted on CMR’s website.  In a four-page summary of the Trump/Mattis policy, CMR noted that it primarily reflected medical concerns, not “animus” toward anyone.

As part of its mission, CMR also used email communications to send CMR articles and those of other experts to various government officials, organization leaders, members of Congress, and CMR supporters nationwide.

Subpoenas served on CMR threatened these First Amendment rights.

CMR’s Free Speech: Worth Fighting For

Plaintiffs filed a motion to compel compliance with their subpoena in the U.S. District Court for the Eastern District of Michigan.  CMR opposed the motion and filed for a protective order.

The subpoena served on CMR as part of the Karnoski v. Trump case, as originally written, would have required CMR to produce virtually every email to and from every member of the military with whom CMR communicated about the policy.  The mandate would apply even though most of those emails were between CMR and individuals who had no role or responsibility for the policy.

Following a hearing before a Magistrate in a Detroit courtroom, the Court drastically reduced the scope of the subpoena insofar as it sought emails with members of the military who had no role or responsibility for the policy.  Inexplicably, however, the Court refused to limit the scope of the subpoena to exclude non-DoD personnel who had no role or responsibility for the policy and non-government officials.

CMR exhausted the available mechanisms to get the Court to amend its inconsistent ruling and to exclude non-DoD persons and non-government individuals who had no role or responsibility for the policy.  These efforts, unfortunately, were not successful.  As a result of the Court’s order, CMR has provided plaintiffs with copies of the emails covered by the subpoena as modified by the Court’s order.

The emails to or from individuals using non-government email addresses are marked as “Confidential” under a Global Protective Order applicable to all four lawsuits against President Trump.  The Protective Order limits the use and distribution of the produced emails and their contents to the lawyers handling the litigation.

CMR has notified persons whose email address was in the “To,” “From,” “CC,” or “BCC” block of responsive emails about the military’s transgender policy during the designated time (June 16, 2015, through March 23, 2018), making those emails part of CMR’s court-ordered production of the required documents.

CMR’s legal defense over two years has been costly in terms of time and money.  We are indebted to our legal team for countless hours they devoted to wage this legal fight on behalf of CMR over the past two years.

Fortunately, the Court shifted to the plaintiffs the technical IT costs involved in searching for and producing the emails covered by the Court’s order, which have been substantial.

Fight for Free Speech Worth Waging

Since its founding in 1993, CMR has consistently advocated for personnel policy positions that are grounded in appropriate principles of military effectiveness.  There is nothing in CMR’s  public articles or private correspondence that conveys any “animus” toward anyone.

It is regrettable that in our current climate of political divisiveness, any disagreement with policy positions favored by the progressive left could be misinterpreted and twisted to demonize the people and organizations with the temerity to express their disagreement.  CMR stands by our many publications and communications, even if plaintiff lawyers and activists try to distort their meaning and clear intent.

With the support of individuals who stand by our men and women in uniform, CMR will continue to advocate for a strong and effective military capable of protecting America and her vital national interests.

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The Center for Military Readiness is an independent public policy organization that reports on and analyzes military/social issues.  To make a tax deductible contribution to CMR, using our secure Contribution Page, please click here.  Thank you for your continued support of CMR and its mission.

Posted on Apr 4, 2020 Print this Article