March 28, 2018 at 3:16 pm EDT | by Chris Johnson
Who’s to blame for trans military ban: Mattis or Pence?
James Mattis, gay news, Washington Blade

LGBT advocates had varying takes on whether Defense Secretary Jim Mattis is culpable for the new trans military ban. (Photo courtesy Department of Defense)

When President Trump reaffirmed his ban on transgender military service last Friday, the memo was backed up by a report from Defense Secretary James Mattis in which he asserted that a nine-month review of the issue revealed “substantial risks” in allowing transgender people in the U.S. military. But was it really his doing, or that of Vice President Mike Pence, who has a virulent anti-LGBT record?

Upon the release of the memo, many were surprised Mattis — who’s seen as one of the more mature voices in the Trump administration — was found to have signed his name to a document against transgender military service. After all, media reports from the time the memo was delivered in February indicated Mattis would advise Trump to allow transgender people to keep serving.

That wasn’t the case in the memo. Apparently by relying on junk science on transgender people, the memo came to the conclusion the Obama administration was in error by lifting the ban on their service and they shouldn’t be in the military.

“The Department of Defense concludes that there are substantial risks associated with allowing the accession and retention of individuals with a history or diagnosis of gender dysphoria and require, or have already undertaken, a course of treatment to change their gender,” Mattis writes. “Furthermore, the department also finds that exempting such persons from well-established mental health, physical health, and sex-based standards, which apply to all service members, including transgender service members without gender dysphoria, could undermine readiness, disrupt unit cohesion and impose an unreasonable burden on the military that is not conducive to military effectiveness and lethality.”

As a result, Trump was able to simply defer to a military expert (this time, for real, as opposed to when he made highly dubious claims on consulting military experts when he announced his ban in July) to maintain the policy. Further, Mattis’ voice gives ammunition to the U.S. government as it defends the policy in court. Now, the Justice Department can clearly argue the ban is a military decision, and the courts traditionally give deference to the military leaders on military matters.

Ashley Broadway-Mack, president of the American Military Partner Association, said Mattis may have been influenced by Pence or President Trump, but signing his name to the document makes the defense chief culpable.

“At the end of the day, Mattis agreed to allow his name to be attached to the final recommendation including outrageous and false claims used to try to justify this administration’s unconscionable transgender military ban,” Broadway-Mack said. “That fact is deeply troubling, and dare I say, a breach of trust for the transgender service members and their families he is charged with leading.”

The conclusions that Mattis reached in his memo are different from views he stated before. During his confirmation hearing last year, Mattis said he intended to reverse Obama-era changes allowing LGBT people in the U.S. military under questioning from Sens. Kirsten Gillibrand (D-N.Y.) and Mazie Hirono (D-Hawaii).

“I believe that military service is a touchstone for patriots of whatever stripe,” Mattis said at the time. “It’s simply the way that they demonstrate their commitment. And I believe that right now the policies that are in effect — unless a service chief brings something to me where there’s a problem that’s been proven — then I’m not going in with the idea that I’m going to review these and right away start rolling something back.”

Broadway-Mack said Mattis should remember the words he said under oath before the Senate Armed Services Committee.

“In the end, however, we are confident that justice will prevail in our lawsuit and hopeful that Secretary Mattis will return to the promises he made during his confirmation hearing of ensuring all service members — including transgender service members — are treated with the dignity, respect, and support they need and deserve,” Broadway-Mack said.

For his part, Mattis is keeping tight-lipped about the ban. According to The Hill newspaper, Mattis said new policies “stand on their own” when speaking to reporters Monday prior to meeting with the Indonesia Minister of Foreign Affairs Retno Marsudi.

“I think the statements stand on their own right now, and I don’t need to waste our guests’ time reiterating what’s already down,” Mattis is quoted as saying.

Keep in mind the transgender military ban isn’t in effect thanks to court order against Trump’s earlier policy and that’s highly unlikely to change given that courts determined banning transgender people is a form of sex discrimination and a violation of due process under the Fifth Amendment of the U.S. Constitution.

A Defense Department spokesperson told the Blade prior to the time the memo was public the military will “still comply with federal court rulings and continue to assess and retain transgender service members.” In oral arguments for litigation against the ban on Tuesday, U.S. District Judge Marsha Pechman in Washington State said the Trump administration can’t implement any policy barring transgender individuals from serving in the military as a result of her earlier injunction and those of other courts.

Matt Thorn, executive director of the LGBT military group OutServe-SLDN, said the real villain behind the policy is Trump, although Mattis shares some blame.

“I wouldn’t characterize it as escaping culpability from this,” Thorn said. “He is making a recommendation that is counter-point to major, long studies and feedback that was provided to the Defense Department in 2016, but at the end of the day, this is the president and the president directing this decision.”

Amid expectations a new policy on transgender military service would emerge last week, rumors circulated Pence secretly harbored a desire to ban transgender people from military service and held an “ah hoc” meeting at the White House with anti-LGBT leaders — including Tony Perkins of the Family Research Council and Elaine Donnelly, who long opposed transgender military service — to keep the ban in place.

At the time, the rumors were unverified and not reported by the Washington Blade, but they’ve since they found their way to other media outlets. In fact, ThinkProgress reported Pence essentially swapped out the finding of Mattis in February with recommendations from the “ad hoc” group.

Given the report is dated Feb. 22, the time Mattis turned over his recommendation to the White House, and purports to represent the findings of the working group established by the Pentagon, such a substitution would rise to the level of fraud. The document was submitted to courts adjudicating the constitutionality of the ban, which could result in consequences, including criminal liability or being found in contempt of court, if the report was found to be fraudulent.

Even if the report wasn’t a substitute, Mattis was undeniably under pressure to produce a report against transgender service given his boss Trump had already tweeted he’d ban transgender people from the military “in any capacity” and the White House memorandum to the Pentagon in August sought to ban transgender military service.

Mara Keisling, executive director of the National Center for Transgender Equality, wasn’t sure if Mattis was culpable for the ban on transgender service given the rumors Pence secretly drafted the policy.

“It’s not clear how much Secretary Mattis has actually bought into this reckless ban, or whether he simply got rolled by the president and vice president and elected not to fall on his sword,” Keisling said. “There has been some reporting to suggest the latter scenario. What we do know is that the DOD recommendations and report are a weak attempt to reverse-engineer justifications for the same ban that President Trump recklessly tweeted last July. It doesn’t stand up to the least bit of scrutiny. The history of this issue makes clear this ban is being driven by the Trump-Pence White House and its bigoted agenda and nothing more.”

A Defense Department spokesperson referred to the recommendation made public by the White House as the Mattis report when asked by the Blade about its veracity, deferring additional questions to the White House.

A Pence official said the report the vice president swapped a recommendation is “patently false” and insisted he hasn’t been involved in a major way. The official said he defers to the Defense Department on the best way to handle transgender service in the military.

White House Deputy Press Secretary Raj Shah said via email to the Blade the Pentagon produced its recommendation on its own when asked if the president, vice president or anyone at the White House sought to influence the outcome.

“The Department of Defense’s panel of experts was comprised of senior uniformed and civilian leaders who considered the issue based on data and their professional military judgment, without regard to any external factors,” Shah said.

In response to a question from the Blade on whether the ban is a non-starter because of court rulings against banning transgender service, Shah referred to a comment from the Justice Department.

“After comprehensive study and analysis, the Secretary of Defense concluded that new policies should be adopted regarding individuals with gender dysphoria that are consistent with military effectiveness and lethality, budgetary constraints, and applicable law,” the statement says. “The Department of Justice will continue to defend DOD’s lawful authority to create and implement personnel policies they have determined are necessary to best defend our nation. Consistent with this new policy, we are asking the courts to lift all related preliminary injunctions in order to ensure the safety and security of the American people and the best fighting force in the world.”

(Shah responded to the Blade’s questions via email after the White House declined to call on the news outlet during the first two daily briefings after the administration went public with the ban. No reporter from any other outlet called on during the briefings asked the White House spokesperson at the podium about the transgender policy.)

The new transgender policy was met with stern condemnation not only from LGBT groups, but other organizations. The American Psychological Association issued a statement on Monday reiterating its opposition to banning transgender service, which it first issued in 2012.

“The APA stands firmly against discrimination against anyone, and this ban is a discriminatory action,” said APA CEO and Medical Director Saul Levin. “This ban not only harms those who have chosen to serve our country, but it also casts a pall over all transgender Americans. This discrimination has a negative impact on the mental health of those targeted.”

The San Fransisco-based Palm Center made public a statement from 26 retired generals and flag officers in opposition to the new policy as well as former U.S. Surgeons General Joycelyn Elders and David Satcher, who said the Pentagon “mischaracterized the robust body of peer-reviewed research on the effectiveness of transgender medical care.”

Aaron Belkin, director of the Palm Center, said Trump and Mattis are both “100 percent responsible for taking aim at their own troops” when asked if the defense chief was culpable.

“The Trump ban is based on scientific distortions that were immediately debunked by the American Psychological Association, the American Psychiatric Association, and retired surgeons general,” Belkin said. “We don’t yet know for sure the extent of Mike Pence’s involvement, which circumstantial evidence suggests may have been high. But that’s not the point. The point is that the ban is based on scientific distortions, which is why it will fail.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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