By Lisa Keen
Gauging the significance of statements from officials in Washington, D.C., has often been a dicey sort of pursuit, especially on LGBT matters.
In President Clinton’s first days in office, he said he would issue an executive order ending the military’s policy of banning gays; the Joint Chiefs of Staff and Congress pushed back and, 10 months later, he signed into law the infamous “Don’t Ask, Don’t Tell” policy that forbid gays from serving openly. Running for the White House in 2000, George W. Bush said he thought gays and lesbians should have the “same rights as other Americans;” four years later, he called on Congress to pass a constitutional amendment to ensure that same-sex couples not have the same rights as other Americans when it comes to marriage. At first, President Obama was “not in favor of gay marriage;” then, he became a champion.
Enter President Donald Trump, a man known to contradict himself without any influence from outside forces. On July 26, he announced on Twitter that the Department of Defense should ban transgender people in the military. He issued an official memorandum, “Military Service by Transgender Individuals,” August 25, directing the DOD to do so. But the memo says the ban, which is due to begin March 23, would stay in place “until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice” would not have negative effects. And in an impromptu press gaggle August 31, Trump’s Secretary of Defense Jim Mattis said the president is “leaving it up to me” to determine the military’s policy of transgender service members.
Mattis was responding to a question about whether “you agree with the president” on banning transgender people. President Trump formally conveyed his directive to Mattis in an August 25 memo.
“The president gave me the time to look at this,” replied Mattis. “And obviously he wanted me to do something, or he would have said, ‘I want something done tomorrow.’ He’s told me what he wants, in theory — in broad terms — and now he’s leaving it up to me.”
“Leaving it up to me.” That comment came just two days after Mattis issued the “Statement by Secretary of Defense Jim Mattis on Military Service by Transgender Individuals”that led some to believe he might not agree with President Trump’s directive. The Statement asserts the DOD “will carry out the president’s policy direction,” but it also states Mattis will provide “my advice to the president concerning implementation of his policy direction.”
In the August 29 Statement, Mattis says he will base his “advice” on the findings of a newly forming panel of “senior civilian [DOD] leadership” which will “thoroughly analyze all pertinent data” regarding the issue.
“As directed, we will develop a study and implementation plan, which will contain the steps that will promote military readiness, lethality, and unit cohesion, with due regard for budgetary constraints and consistent with applicable law.”
“In the interim, current policy with respect to currently serving members will remain in place.”
Does the Trump memo’s “sufficient basis” clause and Mattis’ “leaving it up to me” claim signal any likelihood that the Trump administration might not go through with the proposed ban on transgender service members?
LGBT activists say ‘No way!’ And they are alarmed that some major news outlets have suggested that Mattis’ remarks constitute a “freeze” on Trump’s directive or that he might advise the president to withdraw the order to ban.
Shannon Minter, legal director for the National Center for Lesbian Rights, said the language of the Trump memo and the Mattis statement amount to “a patently bogus strategy to make it appear that there is going to be some new ‘study’ that will legitimate” Trump’s proposed ban.
“The August 25 Memorandum is perfectly clear: President Trump has ordered the military to ban transgender people from serving,” said Minter. “That ban will go into effect in about 7 months, on March 23.”
Minter dismissed the idea that the panel Mattis is assembling to study the issue. Noting that the DOD had already spent two years reviewing the issue, Minter said Mattis’ panel is “a transparent effort to provide a retroactive fig leaf for the President’s bigotry.”
“The notion that there is any good faith ‘study’ being conducted,” said Minter, “is a blatant pretext for unmitigated, vicious, baseless discrimination.”
Meanwhile, NCLR and GLAD (the GLBTQ Gay & Lesbian Advocates & Defenders) on August 31 filed a motion for a preliminary injunction to stop President Trump’s proposed ban until the group’s lawsuit against it can be resolved in the federal courts.
And two more legal groups have filed their own lawsuits against the ban. While the NCLR-GLAD lawsuit (Doe v. Trump) is filed in the U.S. District Court for D.C., Lambda Legal and Outserve-SLDN have filed a challenge (Karnoski v. Trump) in the U.S. District Court for Western Seattle. And that same day, the ACLU has filed its challenge (Stone v. Trump) in U.S. District Court for Maryland.