In view of litigation before current courts, the question is not far-fetched.  Critics of President Donald Trump repeatedly have persuaded federal judges to nullify policy changes that the U.S. Constitution authorizes the President to make, even in matters affecting national security.

The makeup of the All-Volunteer Force, and the eligibility of persons to serve if they are diagnosed with physical or psychological conditions that detract from readiness to fight in combat, are matters affecting national defense.  President Trump has every right to review and change policies imposed by his predecessor, Barack Obama, especially when his own policy decisions are made to strengthen our military.

Nevertheless, within the past year, four federal district judges have issued orders compelling the Trump Administration to reinstate controversial Obama-era policies regarding military people who identify as transgender or have been diagnosed with gender dysphoria – a psychological condition involving confusion about gender identity.

Preliminary injunctions halting all Trump Administration policy changes came in response to an army of lawyers representing transgender personnel and various LGBT Left activist groups, such as the Human Rights Campaign, the ACLU, LAMDA Legal, OutServe-SLDN, and the entire State of Washington.

A series of lower-court rulings against President Trump, including so-far unsuccessful appeals to higher levels, were not based on facts.  They were based on theories and mind-reading suspicions about the President’s motives for exercising his constitutional powers as Commander-in-Chief.  LGBT activist are demanding that the courts overrule the President and revoke policies that were motivated by “animus” against transgenders, rather than concerns about national defense.

As part of the lawsuit discovery process, activists also are demanding internal White House and Defense Department documents that they hope will prove that President Trump called for a review and revision of military transgender policies because he was influenced by outside groups with unacceptable attitudes.

The same lawyers initiated a coordinated legal campaign to drag the Center for Military Readiness and several other organizations into their litigation against President Trump through “non-party” discovery.

Starting in February, LGBT lawyers slapped subpoenas on CMR, demanding access to private emails and communications regarding the transgender issue with White House or Pentagon officials, going back three years to the first day of the Trump for President campaign.

The purpose of the subpoenas is to prove an absurd conspiracy theory – the idea that President Trump changed the military’s transgender policies for reasons of “animus,” not national defense.  Activists claim, therefore, that federal courts should strike down Trump Administration transgender policies, even though the Supreme Court historically has shown “deference” to Congress and the Executive Branch in disputes involving national security.

These tactics are a new type of “Strategic Litigation Against Public Participation,” known by the acronym SLAPP.  Non-party CMR is not being sued, but court-enforced subpoenas ordering the production of private emails and documents would impose disproportionate, heavy burdens and a serious chilling effect on CMR’s First Amendment rights.

This CMR Policy Analysis provides a comprehensive update on the escalating campaign to overturn President Trump’s policies by misusing the federal courts:

Litigation Update #3: LGBT Lawyers Suing to Revoke Trump Military Transgender Policies

The Policy Analysis reports details of the litigation for historic purposes, but the process of connecting dots also reveals a disturbing big picture and a fundamental question:  Why are federal courts running our military?

Since the Fall of 2017, four district judges have issued Preliminary Injunctions in Washington, D.C., Baltimore, MD, Seattle, WA, and the Central District of California (Riverside).  In every case, the judges:

1)     Usurped constitutional prerogatives of the duly-elected Commander-in Chief, even though the Judicial Branch of government has no power to run the military under Article III of the U.S. Constitution.

2)     Issued nationwide preliminary injunctions even before a panel of Defense Department experts completed a major study of the costs and consequences of Obama-era transgender policies.

3)     Adopted without question the vocabulary, assumptions, and ideology of the LGBT Left, including the unscientific notion that human gender identity can be changed by alterations in outward appearance.

4)     Ordered the Trump Department of Defense to continue an array of controversial Obama-era mandates, including irreversible hormone treatments and sometimes surgeries as matters of “civil rights.”

5)     Refused to consider the medical and military implications of accommodating persons who identify as transgender or suffer from gender dysphoria, which used to be on the list of physical and psychological conditions that disqualified persons from military service.

6)     Applied unprecedented legal standards of review, such as “heightened” or “strict scrutiny,” which exceed the “rational basis” standard that courts have applied in previous cases involving similar military issues.

7)     Ignored facts set forth in the Pentagon panel’s March 2018 report, which Defense Secretary James Mattis initiated in response to the concerns of military leaders even before President Trump called for a study and revisions of transgender policies in July and August 2016.

8)     Mandated restoration of Obama-era policies that politicize health-care services with LGBT group-influenced medical mandates, allowing no dissent for commanders or health care personnel who object for reasons of medical ethics or personal convictions.

9)     Refused to consider extensive information derived from Military Health Service records since June 2016, which documented extremely high costs and problematic consequences of mandating long-term hormone or surgical treatments that tests have shown do not improve psychological problems, including very high risks of suicide.

Government and non-party disputes about discovery of internal documents will continue for months, and the underlying lawsuits likely will be heard by the Supreme Court.

Are Transgender Activists Gaslighting the Courts?

In recent years, many female athletes have been told they are wrong to oppose biological male athletes competing against them and winning in women's sports.   Some teachers and school board members also tell parents that they are the “only ones” who object to the presence of biological males in private facilities that used to be reserved for girls-only.  Use of the wrong pronouns can get a college professor fired.

How did science-defying groupthink take hold in so many civilian institutions, and why are federal courts ordering the Department of Defense to depart from reality in the same way?

The word “gaslighting” comes to mind.  According to articles in Psychology Today, the practice called gaslighting comes from a 1944 psychological thriller called Gaslight.  In the award-winning film, a manipulative husband controls his wife (Ingrid Bergman) by making her believe that she is losing her mind.

In an article titled “11 Warning Signs of Gaslighting,” Stephanie A. Sarkis, Ph.D. defined the tactic as a pattern of manipulation used to gain control by making victims question their own reality.  (Commentator Mollie Hemingway recently recognized political use of the technique in a Federalist article titled “Media Gaslighting Cannot Hide Fact That Trump Campaign Was Spied On.”)

In June 2016, Obama-era Defense Department groupthink morphed into what may be the most ambitious gaslighting campaign in history.  The organized transgender movement has convinced the Pentagon, and several federal judges, that biology doesn’t matter if a person identifies as the opposite sex, and anyone who believes otherwise is guilty of “animus.”

In June 2016, Defense Secretary Ashton Carter ordered the various military services to implement LGBT transgender ideology at all levels, and to comply with an array of Directives, Memoranda, Instructions, and Training Handbooks mandating denial of scientific realities and suspension of common sense.

A CMR Special Report in July 2017 analyzed fifteen of these extraordinary mandates, one of which was issued by an Obama holdover three days after the Trump Inauguration:

• Department of Defense & Military Services Should Revoke Problematic Transgender Policy Directives and Instructions, 27 pages.

Thanks to these directives, which federal courts have ordered to stay in place, personnel are duty-bound to act on logic-defying beliefs.  For example, when a bureaucrat changes a person’s “gender marker” from male to female, or vice versa, “transition” has occurred.  The person’s gender-determining DNA chromosomes remain unchanged, but that doesn’t matter.

All personnel must act on official policy, such as the notion that a transgender man can get pregnant, and women should get used to biological men using private facilities that used to be reserved for women.  Gaslighting tactics build on groupthink, and departures from reality weaken cultural principles on which national security depends.

LGBT Subpoenas Threaten First Amendment Rights and Independent Oversight

The Center for Military Readiness is an independent public policy organization that reports on and analyzes military/social issues.  (For purposes of Freedom of Information Act (FOIA) requests, CMR has been recognized as requesting media.)

Enforcement of the subpoena related to the Seattle case, and possibly two more related to the Washington, D.C. lawsuit filed against the Trump Administration would:

a)     Impose disproportionate costs on CMR in terms of time and money, even though a previous decision by the judge in the Seattle Karnoski v. Trump case indicated that the administration possesses relevant information sought by lawsuit Plaintiffs, and “there is no suggestion that this evidence can be obtained from other sources.”

b)     Violate CMR’s First Amendment rights to independently research, report on, and analyze military/social policies.

c)     Chill discussions with government officials and/or potential sources of information about the consequences of controversial policies; and

d)     Impede CMR’s ability to hold accountable government officials whose ill-advised decisions make military life more difficult or more dangerous.

CMR will continue to provide updates as court actions continue.

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The Center for Military Readiness, founded in 1993, is an independent, non-partisan, 501(c)(3) public policy organization that reports on and analyzes military/social issues.  More information is available on the CMR website, www.cmrlink.org. 

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