The stand-alone bill, House Resolution 124, labeled as “Opposition to Banning Service in the Armed Forces by Openly Transgender Individuals,” makes numerous assertions that are not credible, and demands that military leaders ignore directives for implementation of the new Trump/Mattis transgender policy on April 12. 

HR 124 is an audacious appeal for military defiance of the Commander-in-Chief on a matter of national security.  The final “Resolved” statement in HR 124 actually encourages the Defense Department and military personnel to ignore the new Trump/Mattis policy and the many facts that back it up:

“(3) [The House of Representatives] strongly urges the Department of Defense to not reinstate President Trump’s ban on transgenders members of the Armed Forces and to maintain an inclusive policy allowing qualified transgender Americans to enlist and serve in the Armed Forces.” 

President Trump exercised his powers under Article II of the U.S. Constitution to make policy for our military.  Imagine the outrage if the formerly Republican-controlled Congress proposed a resolution urging military leaders to defy President Barack Obama on personnel policies governing the armed forces.  And how would Rep. Kennedy’s great-uncle John F. Kennedy have reacted if Congress had passed a resolution encouraging the military to ignore presidential orders?

This ill-advised legislation urges military leaders to ignore the carefully-considered policies recommended by former Defense Secretary James Mattis after six months of study.  The measure does not deserve support, and members of the Senate also should reject similar legislation that Sen. Kirsten Gillibrand (D-NY) and others are sponsoring to codify the previous administration’s policies.  

The fifteen “Whereas” statements in HR 124 are full of factual errors and glaring omissions of the many facts reported by the panel of experts that former Defense Secretary James Mattis convened in 2017.  The panel’s report, which supported recommendations for a new policy that President Trump approved on March 23, 2018, recognized the very real and serious medical concerns about persons with gender dysphoria. 

Contrary to claims in the legislation, the Defense Department is not implementing a “ban” on transgenders in the military.  The Trump/Mattis policy focuses on a serious psychological condition called gender dysphoria, not a class of people who identify as transgender.

The Trump/Mattis Policy: Implementation Begins

After months of lawsuits and four lower court preliminary injunctions to block implementation, The Supreme Court ruled on January 4, (5-4) that implementation of the Trump/Mattis policy could proceed, pending ongoing litigation.

The Department of Defense announced the process would begin on April 12, and posted five key points explaining how the Trump/Mattis policy assigns priority to military readiness, morale, and combat lethality: 

• DoD: 5 Things to Know about DoD’s New Policy on Military Service by Transgender Persons & Persons with Gender Dysphoria (Mar. 13, 2019)

• The DoD page includes a concise graph that visually summarizes the new policy.

• This is a link to the Directive-Type Memorandum (DTM) 19-004 which provides details and principles guiding the Trump/Mattis policy.

On February 27, Acting Defense Under Secretary for Personnel & Readiness James N. Stewart testified at a hearing of the House Armed Services Committee Personnel Subcommittee, chaired by Rep. Jackie Speier (D-CA). 

Mr. Stewart’s statement accurately reflected the 2018 Trump/Mattis policy and legal arguments in defense of it being made in several federal courts.  On March 7, CMR issued a news release defending Mr. Stewart when his testimony was attacked by four former Obama Administration political appointees.

Court of Appeals Unanimously Overturns Lower Court Rulings

Judge Stephen F. Williams is a member of a three-judge panel of the Court of Appeals for the District of Columbia, which recently reversed a district court’s preliminary injunction against the Trump/Mattis policy.  On March 8, Judge Williams issued a concurring opinion in the District of Columbia Jane Doe 2 v. Trump case.  That opinion, which should be read in full, systematically discredited claims similar to those in HR 124.  Wrote Judge Williams:

“[Transgender plaintiffs’] claims are fundamentally flawed in almost every respect.  They give short shrift to the findings of a panel of military experts commissioned by the secretary of defense.  They never grapple with the fact that the presidential tweet, on which they place so much weight, post-dates—rather than ante-dates—the decision of the secretary to reevaluate the previous administration’s policies.”  (p. 61)

CMR has prepared excerpts of an instructive Timeline that Judge Williams included in his concurring opinion:

• CMR: Military Transgender Policy Timeline & DoD Summary Graph

Appeals Court Judge Williams’ concurrence with the three-judge panel’s unanimous reversal of the district court’s preliminary injunction against President Trump is another indication that the Trump/Mattis policy has a good chance of prevailing on the merits when it reaches the Supreme Court, but there are no guarantees.

Congress Should Defer to Department of Defense

Neither the House nor Senate have conducted thorough hearings on the military transgender issue, but a Department of Defense panel of experts cited recent Military Health System data in reporting high costs and harmful consequences of the previous administration’s policies.

For example, 994 (not “thousands”) active-duty personnel sought treatment for gender dysphoria between October 2016 and July 2017.  These personnel accounted for 30,000 medical visits, with medical costs increasing by 300%.  Lost time was considerable – averaging 167 and 159 days per person in the Army and Air Force, respectively.

Some commanders reported that it was necessary to divert operational and maintenance funds to pay for active-duty transgender servicemembers’ extensive travel throughout the United States to obtain specialized medical care.  Sadly, according to the 2018 Defense Department report, high risks of psychological conditions and suicide are not helped by LGBT-approved hormone treatments and sometimes body-altering surgeries. 

Claims in the resolution reflect LGBT ideology promoted by RAND, a largely-civilian Pentagon contractor paid to write a deeply-flawed 2016 report supporting the previous administration’s social agenda for the military.  In his February 2018 recommendations to President Trump, Secretary Mattis criticized “significant shortcomings” in the RAND report.  

In contrast, Secretary Mattis and the Pentagon panel of experts established to study the issue assigned priority to mission readiness, not political correctness or “gender diversity.”  As CMR reported in April 2018, the panel did a thorough job assessing the high costs and consequences of accommodating persons who have been diagnosed with gender dysphoria, a difficult psychological condition that requires compassion and competent medical care:

• CMR Special Report: Trump Transgender Policy Promotes Military Readiness, Not Political Correctness (34 pages)

This is an updated 4-page Summary of the Trump/Mattis policy and a more detailed report on the findings supporting it:

• CMR Policy Analysis: Trump/Mattis Transgender Policy Promotes Military Readiness (March update)

On this and other national security issues, members of Congress should understand, respect and defer to carefully-considered policies formulated in consultation with the Department of Defense.  To show true support for all men and women in the military, Congress should allow the Trump/Mattis policy to go into effect as planned on April 12. 

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The Center for Military Readiness is an independent, non-partisan public policy organization that reports on and analyzes military/social issues.  More information is available at www.cmr.link.org.