January 8, 2019

Four Retired General and Flag Officers Identify Significant Error in D.C. Appeals Court Ruling on Transgender Troops

SAN FRANCISCO, CA – In anticipation of the Supreme Court’s deliberations on President Trump’s transgender military ban this Friday, the Palm Center today released the following statement by three retired Army generals and one retired Navy admiral who identified a significant error in last week’s ruling by the U.S. Court of Appeals for the D.C. Circuit.

“The D.C. Court of Appeals made an error when it lifted one of the injunctions that protect transgender members of our military. Without that error, the court likely would have left the injunction in place. The court incorrectly believes that an implementation plan produced by former Defense Secretary James Mattis is different from President Trump’s original tweeted policy. The court is wrong. The President’s tweets and the Mattis ban are the same.

“President Trump tweeted that transgender individuals should not be allowed to serve in the military ‘in any capacity.’ The Mattis plan bans anyone who has a medical need to transition gender, except for a grandfathered few who have already come forward. The court sees the Mattis plan as more nuanced and more forgiving than the Trump tweets, but in fact it is exactly the same as the tweeted order.

“Trump’s intention in tweeting that transgender troops cannot serve ‘in any capacity’ was to ban service members who transition gender. The President never had a problem with transgender people who stay in the closet or who, for their own reasons, choose not to transition gender while in the military. The proof of this is that Trump’s imagined (and baseless) fear was ‘the tremendous medical costs and disruption’ of gender transition, an irrelevant concern when applied to troops who do not undergo gender transition. Thus, the President’s tweets should be understood as a ban on gender transition.

“Former Secretary Mattis produced a recommendation that is 100% consistent with Trump’s tweets. He banned people with a medical need to transition, but then cynically pointed to the thousands of transgender people in uniform who had not come forward—serving in silence—as evidence of how much he had changed Trump’s tweeted order and moderated it. The Mattis ban, however, like the Trump tweets, permanently forecloses those thousands of troops from receiving medically necessary care, should they need it, for as long as they serve.

“The court believes it is deferring to ‘complex, subtle, and professional decisions’ of military authorities, but the Mattis ban—unsigned by any named military leaders—has nothing to do with military judgment, and its two central rationales have been thoroughly discredited. Its unit cohesion rationale was discredited by the Chiefs of Staff, all of whom stated that there have not been any problems with transgender service. Its central medical rationale—that there is ‘considerable scientific uncertainty’ about the effectiveness of medical care for gender dysphoria—has been repudiated by the American Medical Association, American Psychiatric Association, American Psychological Association, six former US Surgeons General, and three former military Surgeons General. No government agency knows less about gender identity than the military given that it only emerged from a ban in 2016. The rationale for the Mattis ban and the Trump tweets is the same—politics, not military expertise—and courts should not be deferring to it.

“The court fell for a sleight of hand designed to blur the reality that Mattis delivered exactly what Trump ordered. The need for an injunction protecting transgender people who serve their country remains precisely the same.”

Signed by:

Lieutenant General Claudia Kennedy, USA (Retired)
Rear Admiral John Hutson, JAGC, USN (Retired)
Major General Gale Pollock, CRNA, FACHE, FAAN, USA (Retired)
Brigadier General Clara Adams-Ender, USA (Retired)