Memo shows Mattis gave military panel no choice but to uphold ban on transgender service

It really was rigged from the start.

CREDIT: JIM WATSON/AFP/Getty Images
CREDIT: JIM WATSON/AFP/Getty Images

A memo written by Defense Secretary James Mattis shows he instructed a military panel to uphold a ban on transgender people serving in the military, and did not suggest the panel should weigh the merits of the ban.

Following a July tweet telegraphing his intentions, President Trump issued an official order dated August 25 implementing a ban on transgender service members. A few days later, Mattis issued a statement indicating he’d received the president’s order and announcing the creation of a panel to develop “a study and implementation plan.”

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Most media reports at the time emphasized the “study” aspect of Mattis’ announcement, suggesting that there was a possibility the panel could end up recommending against implementing the ban, depending on the results of that study. But Mattis framed things differently internally.

Mattis sent a two-page memo to top military leaders on September 14, 2017 — made available through one of the lawsuits challenging the ban — in which he laid out his expectations for an “Implementation Plan” for Trump’s order. The document makes clear he directed the panel only to determine how to implement the ban, not if such a ban should be implemented.

Trump’s order to the Department of Defense dictated three different components. It prohibited transgender people from joining the military (the accession policy), prohibited transgender people from remaining in the military after they come out (the retention policy), and prohibited the military from covering the cost of any medical care related to an individual’s gender transition. In addressing each of these prohibitions, Mattis’ memo calls on the panel merely to flesh out how they would apply in practice.

For example, on accessions, the memo’s only instruction to the panel is to determine the language for banning trans people from joining the military:

Accessions: The Presidential Memorandum directs DoD or to maintain the policy currently in effect, which generally prohibits accession of transgender individuals into military service. The Panel will recommend updated accession policy guidelines to reflect currently accepted medical terminology.

Likewise, on the matter of medical procedures, the panel’s only directive was to determine exactly which procedures would be implicated:

Medical Care: The Presidential Memorandum halts the use of DoD or DHS resources to fund sex-reassignment surgical procedures for military personnel, effective March 23, 2018, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex. The implementation plan will enumerate the specific surgical procedures associated with sex reassignment that shall be prohibited from DoD or DHS resourcing unless necessary to protect the health of the Service member.

The framing of Mattis’ memo actually contradicts the panel’s own work about its stated purpose.

For example, other documents provided by the Defense Department in the lawsuit suggest that the matter of allowing transgender people to join the military was an open question for the panel. In a series of documents compiling the “Admin Data” the panel used to make its recommendation, guidance from the Under Secretary for Personnel and Readiness asks, “Will the Panel recommend that the DoD begin accessing transgender individuals?” Here is how that appeared in the last version of that document made available in the court filings, dated seemingly some time in mid-December, after the panel had already held about 10 of its 15 meetings:

Mattis’ memo strongly suggests that the outcome of the study panel was rigged before it even convened. As the ACLU wrote in its recent court filing, “The Terms of Reference made patently clear that the Panel did not have the discretion to determine that transgender individuals should be allowed to enlist.” The fact that the panel’s own documents seem to contradict this suggests they might not have even realized that their recommendations were predetermined.

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Indeed, attached to that ACLU filing was another document, a heavily redacted “dissenting opinion” from Acting Under Secretary of the Navy Thomas Dee, who served on the military panel. While very little of the text is readable, Dee does declare in the December 14 statement that the Panel’s recommendations “are not supported by the data provided to the panel in terms of military effectiveness, lethality, or budget constraints, and are likely not consistent with applicable law.” This is consistent with the fact that the other available documents from the panel’s process show a stark disconnect between what the panel learned and what it ultimately recommended.

ThinkProgress and Slate have previously reported that Vice President Mike Pence formed his own “working group” to overrule the committee and justify the ban on trans service. Pence’s inclusion of anti-LGBTQ activists like the Family Research Council’s Tony Perkins and Heritage Foundation’s Ryan T. Anderson remains the most compelling explanation for why Mattis’ final recommendations reflect their conservative talking points but virtually none of the panel’s actual findings.

The documents made available through the ongoing lawsuit don’t contradict those reports, but may narrow the window for when Pence’s imposition occurred. If Dee objected to the committee’s recommendations in mid-December — before the committee went on to meet five more times — Pence’s interference may have already been underway.

The memo also raises doubt about Mattis’ motives. It was widely reported as recently as February that Mattis supported letting transgender people serve in the military. But if the panel was rigged from the start to only produce one outcome, it suggests that Mattis never had any intention of actually standing up to Trump on the matter — whether he disagreed or not.