DID MATTIS LEAVE A TRAPDOOR IN THE TRANSGENDER BAN?

NEW YORK, NY - MARCH 17: Members of the military and a pair of Irish Wolfhounds march in the annual St. Patrick's Day Parade along Fifth Ave in Manhattan on March 17, 2014 in New York City. Political controversy surrounded this year's parade, as New York City Mayor Bill De Blasio decided not to march due to the parade organizer's policy to ban participants that identify themselves as lesbian, gay, bisexual or transgender. Heineken and Guinness announced earlier that they would drop their sponsorship of the parade for along the same reasons. (Photo by Andrew Burton/Getty Images)

This week, the Supreme Court, in a short, unsigned order, allowed President Trump’s ban on most transgender people serving in the military to go into effect while legal challenges to it make their way through the lower federal courts.  Although not a ruling on the merits, the 5-4 decision along ideological lines was a disappointment to the LGBTQ community and those who had come to see the ban as one not grounded in fact but ideology.

What has been lost in much of the reporting is the nuance in the ban, which in some ways calls into question the ban’s fundamental rationale.

First and foremost, the “ban” isn’t absolute.  After a provocative tweet on July 26, 2017 announcing the ban (and claiming that he had consulted with “Generals and military experts”), President Trump issued a Memorandum on August 25, 2017, ordering a return to the prior Department of Defense Policy (reversed under President Obama) that banned all openly transgender individuals from serving in the military.

The current “ban”, litigated now across the country, is actually the implementation of a February 2018 memo from then-Secretary of Defense James Mattis.  Far more nuanced that the President’s absolute ban (which also halted military spending on transgender medical treatment), It specifically delineates transgender troops from transgender troops with gender dysphoria – a subset of transgender people who “experience discomfort with their biological sex, resulting in significant distress or difficulty functioning” and who “often seek to transition their gender through prescribed medical treatments intended to relieve the distress and impaired functioning associated with their diagnosis.”

Mattis seemed primarily concerned with “unit cohesion”, but his memo carved out certain exceptions, including allowing transgender troops who do not require a change of gender to remain in service and those who serve in the gender they possessed at birth.

Most importantly, Mattis exempted approximately 900 transgender troops who were diagnosed gender dysphoria after the Obama administration cleared the way for transgender troops to serve. It allows those troops, serving openly, to serve in their preferred gender, and to receive medical treatment for their condition (presumably up to and including sex change surgery). In effect, the ban doesn’t apply to them.

Which begs the question, why does it apply to everyone else?

There are numerous lawsuits challenging the ban currently in progress in the lower federal courts, generally arguing that the ban violates the Equal Protection and Due Process guarantees in the Fifth Amendment because it is applied to transgender people as a class, and that the Mattis Memo was not an objective study of the effects of transgender troops serving openly, but an implementation plan for the President’s tweet.

In Jane Doe 2 et al. v. Trump, filed by GLAAD in the U.S. District Court for the District of Columbia, plaintiffs argue that the alleged mental health rationale for the ban is grounded in animus against transgender people. It notes that anxiety disorders like those connected with gender dysphoria are more common among women than men, and among white people than black people, but that the military does not ban either women or white people from service.

All of these arguments aside, the strongest argument for overturning the ban might be in the ban itself. By excluding from the ban all troops who “came out” under the Obama administration policy, General Mattis might have left a trap door in his 2018 Memo.  After all, if those troops can serve solely by virtue of timing, what rationale really exists to ban the others?

 

 

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