Analysis: SCOTUS Allowing Preliminary Injunctions on Transgender Military Ban to Go into Effect

Memo on Today’s Supreme Court Decision to Stay Preliminary Injunctions, Allowing Transgender Military Ban to Go into Effect

SAN FRANCISCO, CA– The Palm Center today has released the following memo providing a concise summary of facts on transgender military service and implications of today’s Supreme Court decision suspending a string of preliminary injunctions that had blocked President Trump’s transgender military ban from going into effect.

The memo outlines the following facts that should guide discussion around transgender military service as the military weighs the issue: 

(1) Inclusive policy has been successful for over 2.5 years.
(2) There is no valid medical or military rationale for the ban.
(3) Reinstating the ban would harm military readiness.
(4) The Trump policy is an outright transgender ban, targeting all 14,700 transgender troops.

The policy memo, along with on-the-record comment from Palm Center Director Aaron Belkin, can be viewed in full, below and here:

THE MEMO:

What Happened: The Supreme Court on Tuesday suspended a string of preliminary injunctions that had blocked President Trump’s transgender military ban from going into effect. The ruling allows but does not require the military to reinstate the ban for the duration of ongoing litigation over the policy. The Court simultaneously denied certiorari for a full hearing of the government’s appeal to lift the injunctions. While the military can now reinstate the discriminatory policy, the ruling does not mandate that it do so. President Trump revoked his directive for a ban and has turned the issue over to the military’s discretion “to implement any appropriate policies concerning military service by transgender individuals.” The military could thus choose to leave inclusive policy intact until lawsuits are resolved in order to avoid destabilizing whipsaws in policy affecting service members.

Comment by Palm Center Director Aaron Belkin: “While it is unfortunate that the Supreme Court has allowed military discrimination to be reinstated, it’s critical to understand that the military is not required, and has no need, to reinstate the transgender ban, which would cause destabilizing whipsaws in personnel policy. President Trump revoked his directive for a ban and has turned the issue over to the military’s discretion ‘to implement any appropriate policies concerning military service by transgender individuals.’ The Defense Department should not reinstate the transgender ban because it would undermine readiness, cause significant disruptions and uncertainty, deprive the military of much-needed talent, and wreak havoc with the lives and careers of the 14,700 transgender troops bravely protecting our nation’s security.”

The following facts should guide discussion around transgender military service as the military weighs the issue:

(1) Inclusive policy has been successful for over 2.5 years.
(2) There is no valid medical or military rationale for the ban.
(3) Reinstating the ban would harm military readiness.
(4) The Trump policy is an outright transgender ban, targeting all 14,700 transgender troops.

  1. Inclusive policy has been successful for over 2.5 years.
  • Transgender Americans have always served in our military but have been serving openly, under an inclusive policy, since June 2016. 14,700 transgender troops serve in the Active Component and Reserves, according to Palm Center analysis of DOD figures.
  • Transgender troops have consistently earned praise from their commanders, including Air Force Staff Sergeant Ashleigh Buch, whose commander said, “She means the world to this unit; she makes us better,” and Marine Lance Corporal Aaron Wixson, whose commander said, “We are lucky to have such talent in our ranks and will benefit from his retention.”
  • DOD data confirm that hundreds of transgender troops have deployed to combat zones.
  • All five military Chiefs of Staff have testified that inclusive policy has caused no readiness

issues, with JCS Chairman-designate Gen. Mark Milley reporting “precisely zero” problems.

  • Eighteen foreign militaries allow transgender troops to serve, and none has reported any

compromise to readiness.

  1. There is no valid medical or military rationale for the ban.
  • In addition to confirmation by Service Chiefs that inclusive service has succeeded and has not harmed cohesion, a major report by retired military Surgeons General found that DOD’s rationale for exclusion “is contradicted by ample evidence clearly demonstrating that transition-related care is effective, that transgender personnel… are deployable and medically fit, that inclusive policy has not compromised cohesion and instead promotes readiness, and that the financial costs of inclusion are not high.”
  • The nation’s major medical and mental health organizations have repudiated DOD’s rationale for a transgender ban, with the American Medical Association stating that “there is no medically valid reason” to ban transgender troops, and the American Psychological Association and American Psychiatric Association rejecting any medical rationale for a ban.
  • Both DOD and RAND exhaustively studied transgender military service in 2016 and concluded it does not harm readiness. RAND summarized its findings by stating that “evidence from foreign militaries and the U.S. military has indicated no significant impact on unit cohesion or operational readiness as a result of allowing transgender and gay and lesbian personnel to serve openly.”
  • The financial costs of transition-related care do not justify a ban. DODreported that the total cost of transition-related care was only $2.2 million in FY 2017, which was less than one tenth of one percent of DOD’s annual health care budget for the Active Component, and roughly one twentieth of the $41.6 million the military spends each year on Viagra.
  • DOD’s rationale for the ban echoes discredited arguments for earlier discrimination against minorities. In each case, warnings about damage to cohesion, privacy, and readiness turned out to be unfounded when inclusive policies failed to cause the predicted harms. As one federal judge has written, the “loss of unit cohesion” claim “has been consistently weaponized against open service by a new minority group. Yet, at every turn, this assertion has been overcome by the military’s steadfast ability to integrate these individuals into effective members of our armed forces. As with blacks, women, and gays, so now with transgender persons.”
  • The military itself concedes it has routinely exaggerated the risks involved in modernizing personnel policies. In 2010, DOD undertook one of the most comprehensive studies of personnel policy ever, as part of its preparation for lifting its ban on openly gay service, and concluded: “The general lesson we take from these transformational experiences in history is that in matters of personnel change within the military, predictions and surveys tend to overestimate negative consequences, and underestimate the U.S. military’s ability to adapt and incorporate within its ranks the diversity that is reflective of American society at large.”
  1. Reinstating the ban would harm military readiness.
  • Fifty-six retired Generals and Admirals warned that a ban would “degrade readiness, … cause significant disruptions, deprive the military of mission-critical talent, and compromise the integrity of transgender troops who would be forced to live a lie, as well as non-transgender peers who would be forced to choose between reporting their comrades or disobeying policy.”
  • A panel of retired military Surgeons General released a 55-page report finding that banning transgender troops “harms readiness through forced dishonesty, double standards, wasted talent, and barriers to adequate care.” They conclude that a ban’s “requirement to serve in silence effectively forces troops to lie about their identity,” which “compromises military integrity.”
  • Lifting the injunctions would send what former U.S. Navy Judge Advocate General Admiral John D. Hutson called “confusing signals to all troops about who deserves to wear the uniform, undermining cohesion as a result.” Commanders “would be ill-served by having to implement yet another policy reversal,” as “uncertainty created by policy whipsaws is inherently bad for all servicemembers.”
  • Scholars have consistently found that military discrimination harms readiness, including discrimination against African Americans, women, and gays and lesbians. Military historian Dr. Nathaniel Frank concluded in a study that “Don’t Ask, Don’t Tell” harmed readiness by “sacrificing badly needed personnel that is replaced with less qualified talent; undermining cohesion, integrity, and trust through forced dishonesty… and damaging the military’s reputation which makes it harder to recruit the best and brightest America has to offer.”
  1. The Trump policy is an outright transgender ban, targeting all 14,700 transgender troops.
  • The Trump ban affects 100% of transgender troops. None of them will be allowed to come forward to transition gender once the ban begins, and they will all serve under a policy that stigmatizes their contribution to our defense. Banning gender transition is a clear proxy for banning transgender people and effectively forces them to give up their identity as a condition of service.
  • Like the failed, unconstitutional “Don’t Ask, Don’t Tell” policy, the transgender ban targets and stigmatizes a whole class of people for unnecessary reasons, while masquerading as an even- handed regulation of fitness.
  • Transgender troops—all of them—will be the only military personnel denied their statutory entitlement to proper medical care as determined by military doctors

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BY MELANIE NATHAN, mostly a mom!
My e-mail commissionermnathan@gmail.com
Divorce and Family Mediation at www.privatecourts.com
Advocacy work at African Human Rights Coalition 
Speaker Information: www.melnathan.com
About Mel: HERE. Check out my shenanigans on Facebook 
Follow me on Twitter – @MelanieNathan1 | Instagram: @commissionermelnathan


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