President Trump’s Proposed Ban on Transgender Service Members

Episode Notes

Transcript

Lawyer 2 Lawyer

Law News and Legal Topics

President Trump’s Proposed Ban on Transgender Service Members

08/04/2017

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Kris Poppe: They are doing their job. They are qualified to do what they are going to do. They are in place and serving in difficult and dangerous capacity, both here and deployed across the seas. That’s speaks volumes to service members on a day-to-day basis. They want to know is the person next to me going to be able to do the job.

Brynn Tannehill: We’re not quite sure why the White House did this. It seems like a no win situation for them if they do this and it carries through they are going to go to court and it looks like that DOD isn’t going to be particularly receptive. If they do succeed, it’s going to hurt a lot of really good people and the Arctic summits are going to be affordable for the White House. We are going to work with our allies, including those in the legal community to fight this all the way down. This is detrimental and there is no rational basis for it.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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Bob Ambrogi: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Bob Ambrogi coming to you from Massachusetts, where I write a blog called LawSites. I also co-host another Legal Talk Network Program called Law Technology Now along with Monica Bay.

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Bob!

Bob Ambrogi: Well Craig I will say this for President Trump he has been giving us plenty of topics to talk about on this show. In one of the latest developments from the Trump administration, in a series of tweets on July 26, President Trump announced that “after consultation with my generals and military experts, please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the US military.” He then added, “Our military must be focused on decisive and overwhelming victory and cannot be burdened with a tremendous medical costs and disruption that transgender in the military would entail.”

Craig Williams: And transgender service members have been allowed to openly serve since 2016 when former Defense Secretary Ash Carter ended that ban. Under the Department of Defense Policy transgender troops can receive medical care and change their gender identity. According to a RAND Corporation Study, it’s estimated that there are between 1320 and 6630 transgender personnel serving in the active component and more than 800 and just over 4000 in the selected reserve.

Bob Ambrogi: So today on Lawyer 2 Lawyer we are going to look at President Trump’s announcement, reaction from military, from the transgender community and others and some of the legal issues that this raises.

Craig Williams: To do that Bob, we have a great a line up today. Our first guest is attorney Kris Poppe from the Richardson Law Firm. Kris joined the Richardson Firm in 2016 after nearly 35 years of military service including more than 20 years as an Army Judge Advocate General.

Kris served as an NCO in the US Marine Core and an Army Infantry Officer before becoming an attorney. As an active-duty Judge Advocate, Kris built a servicewide reputation for his courtroom skill and criminal law expertise and was to go to trial defense counsel for high profile and complex cases. Among those cases Kris represented a transgender service member after it was discovered she was formerly a man.

Welcome to the show, Kris Poppe!

Kris Poppe: Thank you for having me.

Bob Ambrogi: Also joining us today is Brynn Tannehill. Brynn is Director of Advocacy and a founding member of LGBT Military Organization SPART*A, which stands for Servicemembers, Partners, and Allies for Respect and Tolerance for All. Brynn is retired US Navy Pilot who graduated from the Naval Academy and earned her navy wings in 1999 flying helicopters and maritime patrol aircraft during three deployments. In 2010 she left the naval reserve to transition to a woman. She currently serves as a senior research scientist and a Project Manager in the private sector.

Welcome to Lawyer 2 Lawyer Brynn Tannehill.

(00:05:12)

Brynn Tannehill: Thanks for having me on Bob!

Bob Ambrogi: Thanks for joining us. Well let’s turn to President Trump’s announcement. Kris give us a background on what’s happened so far and what we can expect to happen now that these announcements come out, is really through formal channels?

Kris Poppe: Well this was a very much a surprise announcement by all indications. Of course the Department of Defense had been well on their way towards an implementation of a broader base policy who address the transitioning of members, service members in their sexual assignment and in their gender preferences and so that was well on its way, although there had been a delay instituted by General Mattis.

When the tweet came out, the reaction was surprising in that — while the President Trump said that he had consulted his generals and military expert, it was clear soon afterwards that the Secretary of Defense General Mattis as well as the Chairman of the Joint Chiefs of Staff didn’t have a clear understanding that this was coming out and in fact were blindsided by some reports. And so that was an obvious thing right off the bat.

Today as a matter of fact the reaction that has come from some of the military leaders is kind of startling in some sense. For example today the Commandant of the Coast Guard reported that the Coast Guard had taken steps to personally contact all of the identified transgender members that were actively serving in the Coast Guard to inform them that they would not break faith with them, that they were supporting them and so that is really a strong statement that the policy announcement by President Trump really caught the military by surprise, it wasn’t expected.

Craig Williams: Brynn Tannehill let me ask you what was the reaction of your organization SPART*A and of the transgender community more broadly?

Brynn Tannehill: So we have been shocked by this. Just to set the timeline straight, in 2015 Ash Carter directed that transgender service members stopped being discharged. So we had people serving openly for two years now. In 2016, we had the policy going into effect which allowed people who were already in the service to continue serving and receive medical treatment and change their gender markers in DEERS, that’s a Defense Personnel System and the medical system.

The only part of the policy that hasn’t been implemented is the Accession policy which let people join the military, that was delayed by six months by Sec Def Mattis, but there is a plan that are coming along through the DOD right now that I know for sure.

It caught us off guard because what is in the tweets is just categorically untrue. Our generals were consulted. The DOD was not consulted. Sec Def Mattis was on vacation. This is not costly, RAND found it not be costly. They found it not to be disruptive. The idea that this is somehow detracting from a war fighting efforts is patently false when they have transgender servicemembers who are part of SPART*A, downrange in Afghanistan and Iraq right now, we have transgenders they are not receiving medical care. And there hasn’t been any issue with that either. We have Centers of Excellence for the branches set up on both East and West Coast are specializing in transgender medical care.

Bob Ambrogi: Brynn you mentioned that RAND is – look at this, what is specifically RAND studied and what has it reported?

Brynn Tannehill: So RAND looked at two facets of this. One of which was how much is this going to cost? The other facet is, is this going to be disruptive? In case of cost, they looked at – they found that somewhere between like $2.4 and $8.2 million per year. When you look at the total DOD budget for medical care, it works about $6.8 billion I think. It’s essentially decimal dust in the defense budget. We spend something like 10 times more on erectile dysfunction drugs than we do on transgender medical care.

The other piece that RAND looked at was historically has this had any kind of effect on foreign militaries that have implemented open transgender service, and answer was no. There was no noticeable disruption to year around cohesion or readiness by allowing transgender troops to serve in foreign militaries and that expected – and there was just 18 of them and that there has been a couple studies out there on this, while the data is a little bit limited, there is no expected disruption and given that the success of the implementation or the repeal of Don’t Ask, Don’t Tell we would expect similar here in the United States.

(00:09:57)

Bob Ambrogi: Kris, how was the rank and file accepting this? Well first of all how is it accepting transgender service in the military and then what’s the basic reaction along enlisted folks about Trump’s new instruction?

Kris Poppe: To the second part, I really can’t tell if there has been any reaction. At least it’s – I am located next to and provide counsel to soldiers that are assigned to the nation’s largest military base and of course there’s just no reaction from the rank and file. It’s obviously been discussed, but no real concerns have been raised about accepting transgender service members into the ranks. That just simply has not been an issue in any capacity that I’ve seen or had explained to me by any members that I have talked with.

With regards to the actual command and how they have implemented it, there was specific guidance, I am most familiar with the Army process, there was specific guidance given by the Secretary of the Army last fall, I believe in October that laid out the plan for how to implement the Secretary of Defense’s new policy or the policy that was announced.

And there was — of course there’s going to be adjustments in some sort of changes that come along with any change in policy but nothing that was raised that was of a real concern. And in part I think that was because there had been — we are so near in time to the 2011 recession of the Don’t Ask, Don’t Tell policy in legislation and that in and of itself provided a template for this change and for adopting this policy change that allowed service members that had been serving to continue to serve, to continue to do what they were already doing and that’s part of it became — it made it a lot easier I think for members, today’s service members to accept it as well as to deal with the change.

Brynn Tannehill: Another thing, it was beneficial that you didn’t mention is not just a fact that we repeal Don’t Ask, Don’t Tell but the fact Canada does have a policy since 1993 and the UK learned from the takes of Canada and came out with a better more detailed policy in 1999 with they continually updated and Australia did the same in 2010.

So when SPART*A started producing policy analysis and recommendations to the Pentagon, you can find it online of our website, we had the benefit of being able to draft a policy that was comprehensive, that looked across multiple militaries, looked across multiple military like organizations, across US intelligence community to provide DOD with very specific guidance and had produced a detailed set of policies and instructions to doctors, commanders and chain of command and to service members themselves on how to handle a transition. So by the time the actually policy came out, it was very well thought-out, it was very well vetted through historical examples of similar militaries, similar things.

Bob Ambrogi: So I understand that this policy has not taken effect yet and –

Brynn Tannehill: Only the Accessions part, I mean the Accessions parts –

Bob Ambrogi: But won’t take effect today –

Brynn Tannehill: The – everything except the Accessions part to the policy is in place already.

Kris Poppe: Yes that’s correct, yeah.

Bob Ambrogi: Explain that to me. I am not sure I understand what that means.

Brynn Tannehill: So right now service members who are transgender and are already in the service can continue to serve. They can get medical care. They can change their gender makers in personnel records and in medical records. However, people who are transgender who are not service members cannot join as of yet. There needs to be a policy put in place for joining, which is referred to the Accessions policy.

Craig Williams: Okay so for those who are currently members of the military and who are transitioning perhaps if what Trump announced in his tweet was to take effect, what rights or remedies would those people have?

Kris Poppe: Well, it’s unclear. Right now, they would be protected because there’s been no policy change and his just been an announcement but if there is a policy change, it’s unclear as to how far the policy change would be directed. Is it directed only towards those accession issues? Is it directed only towards the provision of medical expenses that is targeted towards the transitioning process and treatment? Is it before and after? Is it directed towards the actual – the strongest language in the tweet which says that members will not be allowed to serve in any capacity, meaning are there existing transgender members that are currently serving — currently qualified, meeting all of the requirements of their job and service, would they be thrown out, attempted to be administratively separated.

(00:15:10)

And so you have a wide variety of things that are of concern there. If you go towards the most drastic interpretation of President Trump’s policy announcement is to say that transgender people who are currently serving would be forced out. There will certainly be litigation to attack that and to seek remedies for those service members.

First of all, there would be administrative remedies pursuant to whatever policies were developed and encapsulated in regulations, either Department of Defense and Service Regulations, the next thing would be to go to federal court because of the fact that they are currently serving, currently serving well, currently fulfilling their obligations, currently doing all of the things that you would expect service members to do.

And the only thing they would be – about them that would force them out would be the fact that they identify as transgender or to identify their current gender preference. And so that would raise equal protection issues as well as other constitutionally protected rights.

Bob Ambrogi: Kris, given your earlier response about the acceptance of transgender in the military, what’s your sense of Trump’s tweet that justifies this change based on the “tremendous” medical cost and disruption that transgender in the military would entail. I mean we are talking less than 10,000 people.

Kris Poppe: Yes and I agree with Brynn. The facts do not back that up, either on the sense of that it’s a high medical cost or disproportional medical costs or that it’s a disruption; especially in this case. This is arising after there has been a significant policy change and after a long deliberative process in which a lot of expertise and military leadership was devoted towards developing a policy to make sure that transgender citizens and service members could continue to serve, could be a part of the military if they chose to do so.

To go back and say now that that was not acceptable for some new reason is simply disingenuous. I mean it’s just simply the facts aren’t there to support that kind of conclusion. So —

Bob Ambrogi: There has been a big joke about the cost of Viagra for the military. That’s significantly more than the cost of transgender and some comparisons with Trump’s travel budget. What type of reaction has the military had to this apparent incongruous statement with respect to the amount of support that it has?

Kris Poppe: Well and of course the ones who speak right up front are the leadership. I think it speaks volumes where the Commandant of the Coast Guard comes out and says to the transgender members, we will not break faith with you. In the light of the Commander-in-Chief’s policy statement by tweet where a Coast Guard Commandant comes out and says that, to me that speaks volumes of the change that has occurred in the leadership and of course the leadership, the attitude of the military flow downward, if the leadership is behind a policy and it appears as if there was a buy-in to this policy change that was announced by former Secretary of Defense, Ash Carter.

And that the policies were changed, they were developed and that there was buy-in. That to me tells me that it is likely that there is a fairly broad support or fairly broad recognition that transgender service members are like other service members. They’re doing their job. They are qualified to do what they are going to do. They are in place and serving in difficult and dangerous capacity both here and deployed across the seas; that speaks volumes to service members on a day-to-day basis.

They want to know is the person next to me going to be able to do their job and that’s the 99% of the equation is are they going to do the job and here transgender members have proven that they can do that job.

Bob Ambrogi: We are going to continue this discussion in just a moment but first we need to break to hear a message for our sponsors. Stay with us.

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Bob Ambrogi: And welcome back to Lawyer 2 Lawyer. This is Bob Ambrogi, and joining my co-host J. Craig Williams and I today are attorney Kris Poppe from the Richardson Law Firm, and Brynn Tannehill, Director of Advocacy and founding member of the military organization, SPART*A. Brynn, what if anything is your organization doing around this issue? Are you preparing for the worst? Are you organizing a response? Are you counseling members of the military?

Brynn Tannehill: We are doing all of the above, and we are preparing in conjunction with other organizations as the other guest mentioned, there are going to be legal challenges for this, and you mentioned the legal challenges you start kicking people out. There will be legal challenges simply if you cut off somebody’s access to healthcare. And you start running into I think some equal protection claims.

For example, if you can give an estrogen tablet to a cisgender, i.e. non-transgender woman in the service and that’s okay, but you can’t give that same tablet to a transgender woman for hormonal replacement therapy. Same treatment, same pill, but one person gets and the other person doesn’t because of the class distinction, that starts running into some pretty funny things there.

The other thing is, is there is — kind of key point might have been missed there is that there is support within the Department of Defense for this policy but there is a little bit deeper game here too, is that there is something called the military deference doctrine which essentially courts and usually the White House deferred to military decisions are personnel as related to military. That’s why the Obama administration never issued an executive order on Don’t Ask, Don’t Tell on transgender service members.

So when the White House steps in, and tries to do this while the Secretary of Defense Mattis is on vacation, no heads up, this is the White House coming in and trying to take some authority away from the DoD as it pertains to personnel, and the DoD is not going to want to cede this power or give that precedent to the executive branch. So there is going to be pushback on that level too, but that isn’t going to be talked about directly.

Bob Ambrogi: But he is the Commander-in-Chief. I mean ultimately doesn’t he have the authority to do this if he wants to do it?

Brynn Tannehill: Maybe. This may or may not be constitutional, like we have talked about there maybe equal protection claims here. There might be due process claims here, and people within the military do not have to execute illegal or unclear orders. There is actually and I will defer our guest talked about UCMJ, but requesting clarification on an order which is not time critical is legal, which is exactly what the DoD and the Joint Chief of Staff has done.

J. Craig Williams: Kris, historically Congress is resisted getting involved in the day-to-day operations of military, leading it to the Commander-in-Chief and the military brass, but do you think that the Congress might step in on this one and strike it out?

Kris Poppe: Well, there is certainly seems to have been a strong reaction by someone both side to the aisle with clearly democratic responses and strong, and then quite a few Republican who spoken out against these tweets as well and this policy change.

So I think that there will be some there. The question is if President Trump actually puts forward a directive to the Secretary of Defense to alter the existing policy, and to take that huge step backwards, will Congress in a veto-proof way go forward and get legislation that would override the policy. That that to me with Republican controlling both sides of Congress, that that’s, it’s an unknown thing to me.

So I wouldn’t speculate on that but clearly President Trump can direct the Secretary of Defense to change the policy as the Commander-in-Chief. However, that does have to be in accordance with current law and of course the constitutional back stops of equal protection and some other potential claims under the First Amendment and/or the freedom of expression possibly, or due process claims dealing with rights of privacy.

(00:24:58)

In all these aspects that we are talking about as far as transgender members and their roles and their abilities, and their ability to serve that come into play so those are clearly be challenged.

Bob Ambrogi: Right, I think I even saw an argument put forward of a kind of detrimental reliance argument. That if members of the military came out as transitioning in reliance on the policy that they would then have some legal claim to continue serving in the military based on of their reliance on that. Is there anything to an argument such as that, Kris?

Kris Poppe: Yes, and I think that comes up to a certain point but I agree with Brynn that the place that it most impacts would be the way that courts afford deference to military decision-making, because that deference is generally been given in a justification for deference to military decision-makers is the fact that it’s a deliberative process dealing with an expertise in their own field, especially dealing with national security issues.

Well, here you don’t have that. Here you have got, the military has over the course of years the changed and developed policy that they put in place, that they said was of benefit to military readiness because they get qualified transgender members serving in the military. And so when you take a step back away from that or you challenge that, then all of a sudden the courts it seem to me would look at and say, well, wait a minute why should we give you deference when you are overriding all of this expertise that had made this decision in the first place.

So I think it might go back to that even stronger with regards to an individual member that would clearly say that, that is a compelling argument it just is not as direct, that there’s a detriment reliance, but it’s not as strong in my view as is potential equal protection arguments which have been recognized in some courts around the country that a transgender rights are certainly protected under equal protection argument.

J. Craig Williams: Kris, someone asked a related question about the substance of a tweet or rather the effect of tweet and in the chain of command. Some of the generals have reacted to Trump’s tweet to say, I get my instructions through this person and not through the President. Is a Presidential tweet an order in the chain of command and what would happen, for example, if he said attack North Korea in a tweet?

Kris Poppe: Yes. Well, that’s an interesting question, and clearly the Chairman of the Joint Chiefs of Staff defined it and said that, look, we are treating this as an announcement, but we are not treating it as a direction and order from the Commander-in-Chief.

Now the Commander-in-Chief there’s no particular — laws do not require that the Commander-in-Chief give an order in any particular way and so if he clearly came out and said I’m today ordering the Secretary of Defense to eliminate the policy and that transgender — to implement a policy that would force transgender service members out of the service then you would have a much closer call as to what effect of law does that have.

Bob Ambrogi: And if you then have the Commandant of the Coast Guard saying, sorry, I am not going to along with that, that’s in subordination, right?

Kris Poppe: Yes. Either that would be a failure to follow a lawful order. And of course, the Uniform Code of Military Justice makes clear that the service members who fail to follow orders do so at their own detriment. You can question whether a law is lawful or not but you bear full responsibility as an individual service member to, that would might question or not obey an order. You bear full responsibility if you are wrong. It’s risky.

J. Craig Williams: Well, we just about reached the end of our program and it’s time to wrap up and get your final thoughts. So Brynn let’s turn to you and let you wrap up, get your final thoughts as well as your contact information for our listeners.

Brynn Tannehill: Well, we’re not quite sure why the White House did this. It seems like a no win situation for them. If they do, do this and that if it’s true they are going to court and it looks like the DoD isn’t going to be particularly receptive. They do succeed, and it’s going to hurt a lot of really good people and the Arctic summits are going to be affordable for the White House. We are going to work with our allies including those in the legal community to strike this all the way down. This is detrimental and there is no rational basis for it.

So you can reach up to me via Twitter @brynntannehill, or you can reach out to me on Facebook or via the SPART*A Facebook Page.

J. Craig Williams: And Kris, let’s turn to you. Let’s get your final thoughts as well as your contact information so our listeners can reach out to you if they like.

Kris Poppe: Yeah. Well, I am going to first, since so many service members and former service members when you first heard about this tweet, you recognize as a huge step backwards.

(00:30:05)

We have progressed from a point in which we did not recognize the talents and abilities of transgender persons and their — what they contribute to the military and in the defense of our nation. And we have progressed to a point where there was going to be full integration very soon with those members serving in capacities that ran the full gamut of service.

It was disturbing that we have taken such a step backwards by our Commander-in-Chief especially in the manner in which it was done, which seems to have been done for reasons unrelated to military readiness that have been perhaps known for some other political purposes.

But it’s unclear to me that that is going to succeed. It is encouraging that the military leadership has stepped up and resisted. This has been a change and that members of both sides of the aisle in Congress have condemned it and in fact said that, look, these are service members, they are like any other service members as long as they are qualified and doing the job, they should be allowed to continue to serve because that’s the bottom line. They are there to help defend our nation and are doing a good job at it.

I can be reached — my e-mail address is  HYPERLINK “mailto:[email protected]” [email protected].

Craig Williams: Great and thank you so much for being with us today. That brings us to the end of our show. I am Craig Williams with my co-host Bob Ambrogi. Thanks for listening. Join us next time for another great legal talk. When you want legal, think Lawyer 2 Lawyer.

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