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Posted on Jan 20, 2019 Print this Article

Trump Administration Wins Appeals Court Ruling on Military Transgender Policy

Appeals Court Respects Presidential Prerogatives
Litigation Update #4

News Update:

On January 22, the U.S. Supreme Court (SCOTUS) granted a request from the Department of Justice for stays of lower district court national injunctions that have been blocking implementation of the Trump/Mattis policy regarding transgenders in the military.  Former Defense Secretary James Mattis had recommended the current policy on February 22, 2018, and President Donald Trump approved it with a Memorandum dated March 23, 2018.

This is a concise, 4-page CMR Policy Analysis that summarizing major reasons why the Defense Department adopted a new policy that assigns priority to mission readiness and combat lethality:

In December, the Department of Justice made a compelling case in its petition for stays of lower court preliminary injunctions, which had been enforced with national effect.  As a result of the Supreme Court’s decision, three of the four lower court preliminary injunctions have been stayed (Washington, DC, Seattle, WA, Riverside, CA), pending further litigation, and the fourth (Baltimore, MD) soon will follow for the same reasons.

The Supreme Court did not approve the Justice Department’s second petition, asking the Court to hear the transgender cases before judgements in the various federal Courts of Appeals. (See article below.)  This would have been an unusual action, but the Supreme Court’s action to stay national injunctions issued by the activist district judges, pending further litigation, signals that the Supreme Court is prepared to rule in the government’s favor when cases are heard on the merits.

The ruling gives the Defense Department (DoD) a green light to implement the Trump/Mattis policy, though it’s been reported that the Pentagon is still waiting for the paperwork staying the fourth preliminary injunction.

Now that the ball is in the DoD’s hands, who will carry it down the field?  President Trump should nominate a new Secretary of Defense who understands the issue and is fully prepared to advance the Trump/Mattis policy.  The key position of Under Secretary for Personnel & Readiness also needs to filled by a qualified nominee who will faithfully implement the Trump/Mattis policy regarding transgenders in the military.

CMR will provide more Litigation Updates as this story develops.                                   -- CMR

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The ongoing campaign to misuse the federal court system to overturn policies regarding transgenders in the military, which President Donald Trump has tried to revise, recently took interesting turns.

As the Center for Military Readiness previously reported in Litigation Update #3, a small army of lawyers representing activist LGBT groups like the Human Rights Campaign, the ACLU, and LAMDA Legal have filed lawsuits to stop implementation of President Trump's plans to review and revise controversial policies regarding military persons who identify as transgender or suffer from gender dysphoria.

Starting in the fall of 2017, like-minded activist judges issued injunctions usurping President Trump’s power and re-imposing Obama-era transgender policies.  These orders disregard the fact that under Article III of the U.S. Constitution, federal judges have no power to run the military.

Four federal district judges, in Washington, D.C., Seattle, WA, Baltimore, MD, and Riverside, CA, have ruled in favor of the LGBT groups and plaintiffs.  Their over-reaching national preliminary injunctions enjoined the Trump policy because, in their opinion, it is causing irreparable harm to the plaintiffs, who have demonstrated a likelihood of success on the merits.  In their preliminary injunctions, the district judges applied unprecedented legal standards of review and adopted without question the assumptions, vocabulary, and ideology of the LGBT Left.

In 2017, the Department of Justice (DoJ) petitioned the various Courts of Appeals for stays of the district court rulings, pending release of the Defense Department study and recommendations that were due in February 2018.  These appeals were unsuccessful, even though President Trump revoked his own previous policy and adopted recommendations for a nuanced policy that then-Secretary of Defense James Mattis submitted, following the
Defense Department study.

On January 4, 2019, a three-judge panel of the Court of Appeals for the District of Columbia Circuit ruled in favor of the Trump Administration in the case titled Jane Doe v. Trump.  This was a significant victory, even though the ruling did not resolve the issue.

The five-page Appeals Court opinion said that the Trump Administration should be allowed to implement the policy that Trump had adopted after the Pentagon study, noting that Washington. D.C. District Judge Colleen Kollar-Kotelly had erred when she issued a national preliminary injunction to block implementation of Trump’s new policy.  Quoting from the Appeals Court opinion:

“It was clear error to say there was no significant change with respect to at least two aspects of the policy recommended by Secretary of Defense James Mattis in February 2018 and approved by the President in March 2018 (“the Mattis Plan”).  First, the District Court made an erroneous finding that the Mattis Plan was not a new policy but rather an implementation of the policy directives enjoined in October 2017.

The government took substantial steps to cure the procedural deficiencies the court identified in the enjoined 2017 Presidential Memorandum.  These included the creation of a panel of military and medical experts, the consideration of new evidence gleaned from the implementation of the policy on the service of transgender individuals instituted by then-Secretary of Defense Ash Carter (“the Carter Policy”), and a reassessment of the priorities of the group that produced the Carter Policy.

“Although the parties dispute whether these efforts were independent of the policy announced in the 2017 Presidential Memorandum, the record indicates that it was [an] error for the district court to conclude that the Mattis Plan was foreordained.  Second, the District Court made an erroneous finding that the Mattis Plan was the equivalent of a blanket ban on transgender service . . .” (U.S. Court of Appeals for the District of Columbia Circuit, Jane Doe v. Trump, No. 18-5257, Jan. 4, 2019, emphasis added, citations omitted, pp. 2-3)

The Appeals Court quoted several landmark Supreme Court precedents upholding a sound principle that the District Judge Kollar-Kotelly forgot: Under the U.S. Constitution, federal courts should defer to the judgment of the elected branches of government in matters involving national defense.  As stated in the opinion:

“. . . [T]he Constitution vests ‘[t]he complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force’ exclusively in the legislative and executive branches . . .” (p. 3)

“[A previous court explained] . . . ‘courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest’  . . . because it is ‘difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible—as the Judicial Branch is not—to the electoral process.’ (pp. 3-4)

“. . . Although today’s decision is not a final determination on the merits, we must recognize that the Mattis Plan plausibly relies upon the “considered professional judgment” of “appropriate military officials,” and appears to permit some transgender individuals to serve in the military consistent with established military mental health, physical health, and sex-based standards.  [Accordingly] . . . we think that the public interest weighs in favor of dissolving the injunction.”  (p. 4)

These statements reflect what the Department of Justice and CMR’s legal team have been saying all along.

Department of Justice Appeals to Supreme Court

In a petition filed with the Supreme Court, U.S. Solicitor General Noel J. Francisco provided several compelling reasons why the Court should agree to hear the transgender cases in the current term.  The Solicitor General’s action was unusual, since the Supreme Court typically does not hear specific cases at this stage in litigation.  He did so because the four district courts issued injunctions with national effect on an issue affecting national defense.

Francisco asked the Court to intervene and consolidate the pending cases, and to issue a ruling overturning previous district and appeals court rulings that imposed a higher standard of review in preliminary rulings blocking implementation of the Trump/Mattis transgender policy.

Francisco’s petition stressed the recent trend toward national injunctions, which increases the need for the SCOTUS to intervene in the four pending military transgender cases.  Even if the Court vacated the nationwide scope of preliminary injunctions in Karnoski and two other cases, (Attorneys claimed there is a “fair prospect” this could happen) a national injunction in the remaining fourth case would still prevent implementation of the Mattis policy. (p. 28)

The Justice Department asked for the Court’s immediate review of all pending cases because the military has been forced to maintain Obama-era transgender policies for more than a year and it is unlikely that the military will be able to implement its new policy any time soon. The prospect of uncertainty and constitutional disorder, as well as military complications, are very good reasons for the Supreme Court to intervene sooner rather than later.

Plaintiffs Oppose Justice Department Petition to the SCOTUS

On the plaintiff side, LGBT litigants filed a 40-page opposition motion that made several dishonest arguments.  For example, plaintiffs’ attorneys argued that Secretary of Defense Mattis and current military leaders had no choice but to implement “tweets” that President Trump sent out in July 2017, which was followed by his August 25 Memorandum that directed Secretary Mattis to study the issue and recommend ways to change Obama-era policies.

They further claimed that since the study done by the Pentagon “panel of experts” could not be objective, and there are no differences between the 2018 and 2017 Trump policies, both should be declared unconstitutional.

The same litigants simultaneously argued that Carter’s military leaders freely chose to implement Carter’s policy change after “extensive study,” and “[T]he military considered and rejected all of the arguments the government presses when it adopted the Carter Policy in 2016.”  The facts discredit these contradictory arguments.

The 3-page DTM 16-005 Directive-Type Memorandum, signed by then-Defense Secretary Ashton Carter on June 30. 2016, clearly ordered military leaders who were on duty during the Obama Administration to carry out the change in policy, based on pre-emptive assertion that transgenders or persons diagnosed with gender dysphoria would be eligible to serve in uniform.  Defense Department contractor RAND Corporation supported the administration’s agenda with a deeply-flawed report produced in consultation with LGBT activist groups.

Constraints put on military leaders who are now being quoted as "experts" who support the Carter policy were confirmed by Defense Secretary James Mattis during a Senate hearing last April.  In responses to several questions, Mattis effectively rebutted everything the plaintiffs are saying now about military support for the Carter policy.

Mattis told Senator Kirsten Gillibrand (D-NY) that he had determined that military leaders under Obama had no choice in the matter, and no opportunity to study the issue beforehand.  “The reason is that under the Carter policy the reporting is opaque. We cannot report that problems emanated from a transgender.  So, the questions you’ve asked the service chiefs and the chairman are ones that right now the Carter policy prohibited that very information from coming up because it is private information.”

Mattis also said he learned that military service chiefs were not consulted before the Obama administration issued directives mandating recruitment of transgender troops. Carter set a July 2017 deadline for recruiting persons identifying as transgender, but Mattis delayed it because “They (military leaders) were asking me questions because we were coming up on the advent of the induction of transgender, and they wanted to know how they were going to deal with certain issues, basic training, deployability,”

Mattis also told Gillibrand. “I said didn’t you get all of this when the policy was rolled out? … They said ‘no,’ and I said well did you have input, and they said ‘no’ they did not.’”  Mattis called the lack of consultation with service chiefs “very, very newsworthy.” (excerpts of testimony, April 26, 2017, emphasis added)

It is unfortunate that only the Washington Examiner and the Center for Military Readiness reported that news.

More LGBT Claims

In future arguments, the Justice Department should vigorously challenge LGBT litigants who erroneously stated that opinions favoring transgender ideology is a “settled, medical and scientific consensus.”

One of the authorities cited in support of this notion was a so-called “blue-ribbon” commission chaired by Joycelyn Elders, a controversial former U.S Surgeon General who created controversy by advocating for unusual forms of sexual expression.  The lawyers also referred to “peer-reviewed” studies done by what appears to be the also-unnamed Michael D. Palm Center, an academic LGBT activist group based in San Francisco.

The plaintiff attorneys’ briefs ignored the findings of many independent studies cited in the February 2018 Defense Department report, which have called into question the notion that a biological man can be transformed into a woman, and vice versa.  (The Defense Department report and the resulting Trump policy are analyzed in this April 2018 CMR Special Report,)

Their boast of “30 months of problem-free experience with open service” also was discredited by details in the Defense Department report, which reported significant costs and lost-time associated with 994 active-duty personnel who identified themselves as transgender or were diagnosed with gender dysphoria under the Obama policy.

The Pentagon panel of experts reported 30,000 mental health visits between October 2015 and October 2017 – a 300% increase – plus lengthy absences for hormone treatments and surgeries, and high rates of mental health conditions such as anxiety, depression, and substance use disorders.  Sadly, suicide rates were found to be eight times higher than for service members as a whole, even after sex-change hormone treatments or surgeries.

None of this seems to matter to LGBT activists, who seem to believe that the only issue of concern is professed hostility toward transgenders in uniform, which doesn’t seem to have materialized.  Non-transgender personnel have no way to report problems associated with the policy.

Incidents involving privacy violations, medical treatment-related non-deployability, high costs, and other consequences that detracted from mission readiness would not have been reported as a matter of policy, for reasons that Secretary Mattis explained in his testimony.  The Trump Administration should be allowed to restore sound priorities, without interference from federal district courts.

As of this writing, it is not known whether the Supreme Court will act in this term to accept the Department of Justice petition asking for an immediate hearing on the Seattle Karnoski v. Trump case or, in the alternative, stays on all the national injunctions pending future decisions.  A decision in the Karnoski case is currently pending before the Ninth Circuit Court of Appeals, and there is no way to predict how courts at any level will rule.

CMR Legal Team Presents Case Against LGBT Subpoenas in Detroit Federal Court

LGBT activists have tried to bolster their lawsuits by serving subpoenas on the Center for Military Readiness and several other organizations, starting in February 2018.  The subpoenas demand access to private CMR emails and communications regarding the transgender issue with White House or Pentagon officials, going back as far as June 2015 - the first day of the Trump for President campaign.

The purpose of the subpoenas is to prove mind-reading speculations about the President's "state of mind," which LGBT lawyers believe to be motivated by “animus” against transgenders, and to persuade federal judges to second-guess and nullify presidential decisions on matters involving national security.  To prove their conspiracy theory, LGBT lawyers hope to prove “animus” on the part of outside organizations, which reached the ear of President Trump and led to his call for change in the military transgender policy.

The conspiracy theory driving their case is ridiculous, but that did not deter LGBT plaintiff lawyers, who have served CMR with three intrusive subpoenas in two of the four federal courts.  More details are in this article:

Even though CMR is a “non-party” in litigation against President Trump and his Administration, plaintiff attorneys filed motions in a case titled Karnoski v. Trump, being heard in the courtroom of Judge Marsha Pechman in Seattle, WA, and with the federal court in Detroit, Michigan.  Plaintiffs’ motions asked for enforcement of their “motion to compel” the Michigan-based CMR to comply with a subpoena demanding production of emails relating to the transgender issue.

CMR challenged the motion to compel with its own petition for a “protective order” against the LGBT plaintiff demands.  A hearing on both Karnoski case motions took place on October 23, 2018, in a courtroom of the U.S. Court for the Eastern District of Michigan.

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 General, and Kate Olivieri, an attorney with the Thomas More Law Center of Ann Arbor, Michigan, which is headed by Chief Counsel Richard Thompson.

On November 6, Detroit Magistrate Judge Elizabeth A. Stafford issued a Report and Recommendations that granted and denied in part elements of the CMR and plaintiff motions before the court.  Both CMR and the Department of Justice (DOJ) filed detailed objections to Magistrate Stafford’s report on several compelling grounds.  As of this writing, there has been no ruling in the Detroit case.

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The Center for Military Readiness, founded in 1993, is an independent public policy organization that reports on and analyzes military/social issues.  More information on this and related issues can be found at www.cmrlink.org.  To support CMR’s public policy work, please click on the easy-to-use Contribution Page.

Posted on Jan 20, 2019 Print this Article