It has some of the feel of a backwater carnival: hucksters hawking the next act that smells of canned ham left out of the fridge too long and drawing flies on a sweaty afternoon.  We might always expect one particularly loud con artist among the hucksters, adept at slight-of-hand trickery, soliciting bets on the location of a pea under 1 of 3 shells.  Will the challenger lose his bet?  Onlookers laugh and snicker.  A few are mesmerized.  But in this case, the analogy isn’t so amusing.  The onlookers are the often cynical American people, and the mesmerized are the deluded among them.  The one placing his bet is our judiciary, goaded into uncomfortable positions by the will of the people and made to carefully engage his wits.

Of course, judges aren’t fools.  They deal with cons every day and know it.  But the advantage falls with the tricks of maneuverability and the necessary slowness of the legal process.  We’re seeing this at work in the continuing saga of Donald Trump’s determination, on behalf of Dominionists constituents, to permit no place for transpeople in American society; and military participation is but one of the fronts upon which the administration has belabored to maintain such a closed society.  Welcome, ladies, gentlemen, and everyone in-between to the executive shell game.  You have no choice but to sympathize, if not openly root for your champions of judicial fairness, for there’s no certainty that those who will stand with civil rights precedents will continue.

 

LIES IN THE IMPENDING STORM

The assault upon transgender service members begins before the announcement of the ban on July 26, 2017.  On the 10^th of that month a meeting convened at the Eisenhower Executive Office Building.  Religion News Service reported that White House Staff arranged this meeting with Evangelical leaders.  Johnnie Moore, an Evangelical author who attended the meeting, reportedly stated that policy regarding transpeople in the military wasn’t on the agenda but the issue did arise in discussions.  Evangelicals followed up on this meeting with a signed letter asking the president to reverse the Obama Administration policy allowing transpeople to openly serve in the military.¹

 Pursuant to the Obama policy, the armed services had printed and distributed the 72 page book, Transgender Service in the U.S. Miliatry:  An Implementation Handbook on September 20, 2016, which stated that on June 20, 2016 then Secretary of Defense Ash Carter announced the new policy.  The initial action leading to this new policy took place in July 2015 in which the Defense Secretary directed the Department of Defense to identify the practical issues related to open service of trans servicemembers.²

At some time before Trump tweeted the new policy to exclude trans service members, Steve Bannon had reportedly urged immediate action.  It appears that support for the ban within his cabinet coupled with the will of the Evangelicals compelled him to act as he did.  When the White House met criticism concerning it, they responded with an op-ed from detransitioned anti-trans activist Walt Heyer on West Wing Reads.  It was titled, “I Was Once Transgender. Why I think Trump Made the Right Decision for the Military” and went on to attack Chelsea Manning who shared documents with WikiLeaks because she was “psychologically and emotionally unbalanced,” contrary to the “psychologically fit” troops the military needs.³

It’s the kind of ad hominem polemics we often find in Evangelical digests.  Ad hominem reasoning, of course is a common fallacy, presenting the failings of one individual as necessarily endemic to an entire group a polemicist wants to attack.  Seeing how many transpeople have served honorably who did not leak intelligence as Chelsea did, the claim is immediately the stuff of propaganda, not cogent writing.

But it’s more than ad hominem.  Heyer, and consequently the White House, relied upon continuing claims from Evangelical organizations how “that Swedish study” (as Evangelicals commonly refer to it) “determined” that elevated suicide rate for transpeople is actually caused by transition-related treatment.

The claim is false, of course, since Doctors Dhejne, Lichtenstein, Boman, Johansson, Långström, and Landėn who co-authored that 2011 report study at Karolinska University Hospital stated unequivocally, “the results should not be interpreted such as sex reassignment per se increases morbidity and mortality. Things might have been even worse without sex reassignment.” and cited those stressors resulting from rampant discrimination and societal ostracism, not because of transition itself.⁴

But the White House nevertheless continued to rely upon presumption based upon dogma and propaganda that transpeople are inherently mentally ill, fit only to be removed from society and compelled to enter “therapies” endorsed by Dominionists with whom the current administration has been closely associated.

 

ON AGAIN OFF AGAIN

The policy met immediate challenge in the courts.  On August 5, 2017, 5 existing trans servicemembers filed a Complaint for Declaratory and Injunctive Relief against several members of the administration including Trump and the Secretary of Defense.⁵

This came after a glimmer of hope from the Defense Secretary.  In July, Representative Vicky Harzler [R], Missouri, had introduced an amendment to the defense spending bill titled the Prohibition of Department of Defense Medical Treatment Related to Gender Transition.  Representative Harzler had called trans military service “a threat to national security comparable to North Korea, ISIS, and Russian President Vladimir Putin.”⁶

House Speaker Paul Ryan expected that amendment to pass.  But Secretary Mattis lobbied against it, culminating in a shocker: defeat of the amendment by a vote of 209-214.  Of the 24 Republicans opposing it, Darrell Isa (CA), Barbara Comstock (VA), and Carlos Curbello (FL) voted against it.⁷

Why Secretary Mattis lobbied against the amendment was never discussed.  But for a time, transpeople looked upon him as a force for moderation in a climate of political extremism, emboldening action through the courts.   A few might have even seen him as an ally, though his actions may instead have reflected a desire to more directly control the process of appropriations through his own office as a matter of policy.  We simply don’t know.

But by the end of 2017, the storm seemed to dissipate with consistent rulings from the courts against the White House.  Transpeople would be allowed to serve and no court was willing to accept delays.⁸

We saw our first openly transgender recruit in March.  Some of us thought this would be the end of the matter.⁹

Think again.

 

THE LATEST AND ABLEIST

On March 23, 2018, the White House issued yet another policy banning most transpeople from serving except “under limited circumstances.”  It declared, that troops with a history or diagnosis of  gender dysphoria who may require extensive medical treatment “presents considerable risk to military effectiveness and lethality.”¹⁰

These are the new criteria, though we can question the level of specificity and objectivity:

1. A recruit must be certified by a medical provider that a recruit has been clinically stable in the preferred sex for 18 months.
2. During those 18 months the recruit must be stable on their prescribed regimen of medications.
3. During those 18 months the recruit must be free of “significant distress.”
4. During those 18 months the recruit must be free of “impairment” in social, occupational, or “other important areas.”¹¹

Exactly what’s called “significant distress?”  That isn’t specified.  Plenty of young recruits have been known to enlist after the shock of a breakup from a love interest and have been told it’s “nothing that the Army can’t cure.”  But a transperson likewise distressed would be disqualified.  Not only isn’t that a consistent criterion, it’s one that could be challenged at any stage in a recruit’s career.

Exactly what is called “impairment” in occupational areas?  If a trans recruit has built a career after being terminated for transition, such may still be considered “impaired”, especially if the recruit has worked at a lower wage scale than that recruit attained during pre-transition.  Other young recruits are offered positions in which they could learn new skills in the military, but this isn’t similarly offered to transpeople.

Exactly what is called “impairment” in “social areas?  If a trans recruit has been rejected by a family member, that may count as evidence of “impairment”.  If a church has rejected a member because of transition, that fact may also count as “evidence of social impairment”.  But cis-gender “apostates” have always been welcomed.

It’s easy to see that these criteria are designed to place an overwhelming burden of restriction upon trans recruits much in the same way as high level Civics examinations and poll taxes in the South have kept many Blacks from voting during the Jim Crow Era.

 

A QUESTIONED SOURCE

According to the White House, the new policy was backed by a report signed by Secretary Mattis, claiming that after 9 months of reviewing the issue, the Defense Department determined there were “substantial risks” by allowing transpeople to serve.¹²

Who did write that report that bears the Defense Secretary’s signature?  Did Secretary Mattis write the Mattis Report of February 22?  There have been rumors that the Vice President may have authored the report instead of Secretary Mattis.  One version claims that Mike Pence met in an “ad hoc” meeting with Evangelical leaders including Tony Perkins of Family Research Council to keep the ban in place, but the time and location of the alleged meeting hasn’t been specified.  Another version claims that Pence swapped out Mattis’ original report with the current recommendations as an act of outright fraud.¹³

The latter claim appears to rely upon the timing of its release.  Why would a report from February 22, cause implementation of a policy at the end of March after the military was already accepting new trans recruits?  Would the new guidelines become retroactive, as an action ex post facto?  Premature discharge of trans recruits may reveal whether this has taken place.  We might also see those recruits grandfathered in on the basis of pre-existing policy.  Time will tell.

Whether or not either rumor may prove to be true, 2 facts are indisputable: (1) the signature of the Defense Secretary appears on the report (2) and he hasn’t disputed the authenticity of the report.  He has accepted responsibility, either voluntarily or by order of the Commander in Chief at whose pleasure he serves.

 

THE PECHMAN FACTOR

Interactions between the White House and the courts happen through the Department of Justice (DOJ), led by Attorney General Jeff Sessions.  On the day the new policy went forth from the White House, the DOJ asked U.S. District Judge Marsha Pechman and other justices involved in the impending lawsuits to “dissolve the old orders as moot.”¹⁴

It’s a tactic we also saw in the back-and-forth battle over entry visas to applicants from certain predominantly Muslim countries.¹⁵

But Judge Pechman said in effect, “not so fast.”  Doing so would leave too little time for the plaintiffs to respond.  Other cases were pending in the District of Columbia, Baltimore MD, and Riverside CA.  The judge also asked for a further briefing within a week concerning the effect of the new policy upon the case.  She did not accept previous claims of “factual underpinnings” in previous filings and dismissed the Mattis Report of February 22 because of its lack of timeliness.¹⁶

No doubt, the other courts with pending cases on the trans issue will look to what the Pechman Court is doing because courts rely upon precedents and the weight of arguments. These things require time.  Of course, the White House is able to release executive orders and memos at a higher rate than what the courts are competent to undertake.  Logically, as asserted by Judge Pechman, the new policy must be addressed in terms of the original filing, otherwise there’s no certainty of the efficacy of a court ruling.

But another strategy appears.  In the Muslim ban, the back-and-forth has settled into a limited ban as far as the administration is constitutionally permitted.  The administration similarly vies for a similar compromise on the trans recruit issue, consistent with Trump-style deal-making.  But that’s not all.  The current White House has, after the Platform of the Republican Party, 2016, a stated purpose to install Conservative judges, and replace those not Conservative with emphasis upon keeping a Conservative Supreme Court:

“Only a Republican president will appoint judges who respect the rule of law expressed within the Constitution and Declaration of Independence, including the inalienable right to life and the laws of nature and nature’s God, as did the late Justice Antonin Scalia. We are facing a national crisis in our judiciary. We understand that only by electing a Republican president in 2016 will America have the opportunity for up to five new constitutionally-minded Supreme Court justices appointed to fill vacancies on the Court. Only such appointments will enable courts to begin to reverse the long line of activist decisions — including Roe [originating with Texas state law criminalizing abortion], Obergefell [also originating with Kentucky state legislation and reflecting upon California Proposition 8], and the Obamacare cases [originating with federal legislation] — that have usurped Congress’s and states’ lawmaking authority, undermined constitutional protections, expanded the power of the judiciary at the expense of the people and their elected representatives, and stripped the people of their power to govern themselves. We believe in the constitutional checks and balances and that the Founders intended the judiciary to be the weakest branch. We encourage Congress to use the check of impeachment for judges who unconstitutionally usurp Article I powers. In tandem with a Republican Senate, a new Republican president will restore to the Court a strong conservative majority that will follow the text and original meaning of the Constitution and our laws.”¹⁷

 

What emerges is a partisan threat of constitutional crisis.  If the courts consistently render unfavorable decisions and do not keep up with the pace of the Executive Branch, those court will be scrutinized for what they do with laws passed through Congress, even if those laws may be unconstitutional.  The Constitution delegates to the states what Congress is not specifically empowered to do.¹⁸

But in the 2016 GOP Platform we find intentions to apply Article I actions for state decisions not in agreement with a GOP controlled Congress even if those decisions were not a result of their own legislation under Article I, but those of the states as in the cases of Roe and Obergefell which hadn’t been legislated pursuant to Article I powers, but the 10^th Amendment.

When we look at the rate at which the 3 branches of government operate, we see the courts being necessarily the slowest.  The President can act within a day.  So could Congress if it really desired, breaking its typical slowness with the rare issue that passes with celerity: legislation like the latest omnibus spending band-aid or a resolution tantamount to war.

At certain times in the checkered human rights history of the United States, we could see an act comparable to what arose on account of Andrew Jackson’s defiance of the Supreme Court led by Chief Justice John Marshall who ruled in favor of the Cherokee Nation in 1828 with respect to land claims.  That defiance led to genocide upon the 5 Civilized Tribes over the Trail of Tears pursuant to the Removal Act of 1830.¹⁸ A judicial decision against the Removal Act would have been deemed grounds for the impeachment of Chief Justice Marshall if we must follow the GOP Platform of 2016.  If the Legislative and Executive branches likewise act against a decision striking down state legislation, the courts will have been completely subverted to the dictates of the Dominionists in a manner more consistent with the theocratic rule of the Islamic Republic of Iran.

 

THE SHELL GAME

It comes down to the shiftiness of the administration in its ability to change faster than the courts.  It’s a shiftiness that also challenges an more fatigable press who realize that the repeat of similar stories over time lose their impetus as news stories.  When the public no longer watches, the administration could get away with more changes than it could if the news remains fresh, and it would be left to the courts alone to recognize the trends and intentions. Threat of impeachment amount to retaliation for partisan claims of judicial “victimization”: something by which the Dominionists feel hamstrung to prohibit abortion at will as well as same sex marriage, and the continued open existence of LGBT peoples.  False claims of victimization have been wedded to the privilege of outpacing any court while seeking the replacement of judges who don’t tow the theocratic line of the Evangelical Dominionists.

It’s like the allegorical shell game.  Shell games are designed to confuse and there’s a lot of confusion afoot as to what the Pentagon is going to do with trans recruits even now.  But in this allegory, the loss of the bet isn’t just the judiciary as the challenger.  The loss falls to everyone on whose behalf the challenger acts.

_____________________________

REFERENCES:

Featured Image:  Trump and Mattis confer while Pence looks on (Wikimedia Commons), Front page of the 2016 booklet from the Department of Defense that set the stage for transpeople to openly serve in the military (D.O.D.)

1. McFarlan-Miller, Emily. “Trump’s Evangelical Advisors Discussed Transgender Ban at White House Meeting” Religion News Service (July 28, 2017, accessed August 5, 2017) http://www.christianheadlines.com/blog/trump-s-evangelical-advisors-discussed-transgender-ban-at-white-house-meeting.html.
2. Lynnea Urania Stuart. “July, the Federal Roller Coaster” Transpire (July 7, 2017, accessed March 30, 2018) https://lynneauraniastuart.wordpress.com/2017/07/25/july-the-federal-roller-coaster/. The dates in question can be found in the memo on the inside of the cover of the DOD booklet dated September 30, 2016 from Acting Undersecretary Peter Levine.
3. Lynnea Urania Stuart. “Revisiting Rancour” Transpire (August 8, 2016, accessed March 30, 2018) https://lynneauraniastuart.wordpress.com/2017/08/08/revisiting-rancor/.
4. Dhejne, Cecilia; Lichtenstein, Paul; Boman, Marcus; Johansson, Anna L.V., Långström, Niklas; and Landėn. Mikael.  Long-Term Follow-Up of Transsexual Persons Undergoing Sex Reassignment Surgery: Cohort Study in Sweden (February 22, 2011, accessed June 18, 2016) , accessible through PLOS. http://dx.doi.org/10.1371/journal.pone.0016885.
5. Jane Doe 1-5 v. Donald J. Trump, Et Al. (Case 1:17-cv-01597 Document 1, filed 08/09/17, United States Court, District of Columbia)
6. Zack Ford. “Conservatives celebrate delay of transgender military enlistment” Think Progress (July 5, 2017, accessed July 23, 2017) https://thinkprogress.org/transgender-military-delay-2c4513a2629f.
7. Lynnea Urania Stuart. https://lynneauraniastuart.wordpress.com/2017/07/25/july-the-federal-roller-coaster/.
8. German Lopez. “Appeals court refuses to delay January 1 start date for transgender people enlisting in military” Vox (December 21, 2017, accessed March 30, 2018) https://www.vox.com/identities/2017/12/21/16807442/trump-transgender-military-ban-appeals-court.
9. Corrine Segal. “As Trump ban plays out in court, America’s first openly transgender recruits are joining the military” PBS (March 9, 2018, accessed March 30, 2018) https://www.pbs.org/newshour/nation/as-trumps-ban-plays-out-in-court-americas-first-openly-transgender-recruits-are-joining-the-military.
10. Associated Press. “Trump order would ban most transgender troops from serving” NBC News (March 23.2018, accessed March 25, 2018) https://www.nbcnews.com/news/us-news/trump-order-would-ban-most-transgender-troops-serving-n859686.
11. Ibid.
12. Chris Johnson. “Who’s to blame for trans military ban: Mattis or Pence” Washington Blade (March 28, 2018, accessed March 28, 2018) https://www.washingtonblade.com/2018/03/28/is-mattis-culpable-for-transgender-military-ban/.
13. Ibid.
14. Gene Johnson. “Judge shows scant patience for military transgender ban” AP (March 27, 2018, accessed March 28, 2018) https://apnews.com/bf9a0be6737f4ef4bc41eae968d3fa43/Judge-shows-scant-patience-for-military-transgender-ban.
15. Ilya Somin. “Supreme Court dismisses travel ban case as moot – but the legal fight over the issue will continue” Washington Post (October 10, 2017, accessed March 30, 2018) https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/10/supreme-court-dismisses-travel-ban-case-as-moot-but-the-legal-fight-over-the-issue-will-continue/?utm_term=.bebb85bc4194.
16. Op. cit.
17. Republican Platform 2016, p. 10. “Roe” refers to Roe v. Wade which made abortion widely accessible and Obergefell refers to Obergefell v. Hodges which opened up the legality of same sex marriage. Both issues have been Evangelical hobbyhorses, and consequently, the same for the GOP itself.  Article I of the U.S. Constitution refers to the powers of Congress, powers which the Platform claims is a usurpation of powers through declaring laws favored by the GOP as “unconstitutional”.  Copies of the GOP Platform can be downloaded from https://www.gop.com/the-2016-republican-party-platform/.
18. Amendment 10 to the Constitution.
19. Davidson, James West and Lytle, Mark H. The United States: A History of the Republic (Teacher’s Edition, Prentice-Hall, Inc. NJ) ISBN: 0-13-938001-9, pp. 234, 235.