Now that Congress has returned from August recess, lawmakers are in discussions about a legislative response to thwart President Trump’s ban on transgender military service, according to Capitol Hill sources and LGBT advocates who spoke to the Washington Blade on condition of anonymity.
Action could come in the U.S. Senate as soon as next week when the chamber begins debate on the fiscal year 2018 defense authorization bill, a major defense policy bill that could be a vehicle for overriding Trump’s directive to the Pentagon to ban transgender people from the armed forces.
As the Washington Post reported, Sens. Kirsten Gillibrand (D-N.Y.) and Susan Collins (R-Maine), who championed efforts in 2010 for the legislative repeal of “Don’t Ask, Don’t Tell,” are planning an amendment to the defense authorization bill targeting the transgender ban. Meanwhile, Rep. Jackie Speier (D-Calif.) and Susan Davis (D-Calif.) are crafting standalone legislation along the same lines.
The plan in the Senate could work despite Republican control. If Collins and the entire Democratic caucus support the measure, 11 more Republicans would be needed to obtain the 60-vote threshold to overcome a likely filibuster. Any number of the Republicans who objected to Trump’s transgender military ban — either the substance or the process — could be candidates, such as Sens. John McCain (R-Ariz.), Orrin Hatch (R-Utah) or Joni Ernst (R-Iowa).
But one LGBT advocate said even a vote that falls short of the 60-vote requirement would still be helpful from a political standpoint if at least a majority of senators were on the record in opposition to Trump’s transgender military policy.
“At a minimum, we want a majority of the Senate, or a supermajority of the Senate, to say they disagree with the president’s approach, they disagree with a ban on trans service, and so that’s the minimal we’re going to try to get, and if we can get a little more, that’s what we want,” the LGBT advocate said.
One lingering issue about the plan is the scope of the amendment. One option, a non-discrimination measure that would require the U.S. military to accept transgender troops, may not obtain as much support among lawmakers in a Republican-controlled Senate compared to an amendment that would more modestly roll back Trump’s directive.
The extent of the rollback would also be an issue. Overriding the portion of Trump’s policy barring funding for gender reassignment surgeries, for example, may not be palatable to Ernst, who said she opposed U.S. military funds for that treatment.
“When you look at some of the statements of the conservative Republicans like Joni Ernst, for example, she didn’t wholly endorse trans service and I don’t think they are ready to sort of say we’re going to tell the Pentagon to have trans service,” one LGBT advocate said. “Hopefully, we can get to a point where the Pentagon is sort of given a free hand to look at what is best from a military readiness standpoint.”
One Capitol Hill source said as of the end of this week a determination on content of the amendment hasn’t been made final, although the more modest proposal to reverse the Trump ban seems more likely as opposed to a military civil rights bill.
Neither Gillibrand nor Collins’ office responded to the Washington Blade’s request for comment on their plan for an amendment against Trump’s transgender military ban.
Key to the success of the amendment and whether it will even be allowed for consideration is McCain, who as Senate Armed Services Committee chair will have considerable sway over whether an amendment on transgender military service will be permitted on the floor. Recently diagnosed with brain cancer, McCain may be ending his time in the Senate and working on his final authorization bill.
“We’re going back and forth in discussions with McCain staff and other Republicans to see what will be consistent with their statements when the ban was announced and be substantively helpful in keeping the ban from being fully implemented,” one LGBT advocate said.
Although Senate Majority Leader Mitch McConnell (R-Ky.) has authority on determining whether legislation will have amendments, he’d give McCain significant deference, the LGBT advocate said.
“If we have his support on an amendment, I think there’s a high likelihood it gets a vote regardless of what Mitch McConnell wants,” one LGBT advocate said.
McCain’s office didn’t respond to the Washington Blade’s request for comment on whether he’d support — or at least favor allowing to come up — an amendment against Trump’s transgender military ban.
Concurrent with a legislative process is litigation seeking to overturn Trump’s transgender military ban. In one of the lawsuits filed by the National Center for Lesbian Rights and GLBTQ Advocates & Defenders, the legal team has sought a preliminary injunction, which could come down at any time and effectively lift Trump’s policy.
The impact of a preliminary injunction, one LGBT advocate said, could go either way on legislation, either taking “the wind of out of the sails” for that course or giving more space to lawmakers to vote against the policy after the judiciary repudiated it.
“Generally, I think it might be less helpful, but it’s hard to say, and we could see a preliminary injunction at any time, but there’s no guarantee we see one at all,” the advocate said.
Even if the Senate approved an amendment against Trump’s transgender military ban as part of the defense authorization bill, many obstacles could prevent it from becoming law.
For starters, the provision could be stripped out in conference committee when House and Senate lawmakers agree to a final version of the defense bill. The House already approved its version of the legislation, which contains no provision on transgender service. (The House voted down an amendment proposed by Rep. Vicky Hartzler (R-Mo.) to bar funding in the U.S. military for transition-related care, including gender reassignment surgery).
If the amendment survives the entire process in Congress, Trump would then be in a position of having to sign a defense bill into law that includes a measure overriding his directive to ban transgender military service, which the president would likely not be keen to do.
One LGBT advocate said he wouldn’t sugar coat the difficulties in making an amendment against Trump’s transgender military ban a success because there’s no strategy for “a guaranteed win.”
“I do think House Republicans are going to be resistant to it,” the LGBT advocate said. “We don’t know what the final NDAA process is going to be. There are a lot of issues around the bill unrelated to any of our issues as far as what the DOD funding level is going to be. There are other issues around specific weapons. It is very possible that the final bill is going to need Democratic votes in the House, which will give us tremendous leverage at that point, but those are sort of unknowables at this point”
One Capitol Hill source was nonetheless optimistic about the potential to override Trump’s anti-trans directive through the legislative process — at least in the House — based on rejection of the Hartzler amendment.
“I think people recognize that this is a ridiculous overreach by the president that literally no one asked for,” the source said. “Even Vicky Hartzler, her floor amendment was on health care, and in committee she pulled the amendment that would have been an outright ban. Even Vicky Hartzler was not asking for this in her amendment. I would feel pretty good about how this would go if it comes back over to the House, but obviously I can’t speak to what the count is like in the Senate.”