Transgender ban still on hold despite Supreme Court decision

LEGAL LIMBO: Despite yesterday’s 5-4 Supreme Court decision clearing the way for the Pentagon to bar military service by most transgender individuals, the Pentagon said late yesterday that for now, at least, there will be no change in the current policy. That approach was formulated by a 2016 order from then-Defense Secretary Ash Carter, allowing transgender troops to serve openly.

“There is currently one court case with a national injunction still in place,” said Lt. Col. Carla Gleason, a Pentagon spokesperson. “We are currently accessing transgendered individuals per the Carter policy,” she said in an email. The Supreme Court’s unsigned order lifted injunctions on implementing the policy imposed by federal judges in California and Washington state.  There is still a stay on the rules pending a decision from a circuit court in Maryland, the Pentagon said.

“The Department is pleased with the orders issued by the Supreme Court today. We will continue to work with the Department of Justice regarding next steps in the pending lawsuits,” said a statement issued earlier in the day. “As always, we treat all transgender persons with respect and dignity. DoD’s proposed policy is NOT a ban on service by transgender persons.”

THE MATTIS POLICY: At issue is the version of the transgender ban fashioned by then-Defense Secretary Jim Mattis seven months after President Trump, in a series of tweets, surprised the Pentagon by announcing a total ban on transgender individuals to “serve in any capacity in the U.S. Military.”

Mattis refined the policy to allow currently serving transgender troops to remain, and to allow for new the accession of new recruits so long as they served in their biological birth gender, and did not have a diagnosis of “gender dysphoria.”

The Pentagon said yesterday that policy was solely intended to maximize combat effectiveness. “It is critical that DoD be permitted to implement personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world,” said a statement issued after the high court ruling. “DoD’s proposed policy is based on professional military judgment and will ensure that the U.S. Armed Forces remain the most lethal and combat effective fighting force in the world.”

PREDICTABLE REACTION: Groups advocating on behalf of transgender individuals were quick to condemn the Supreme Court ruling and vowed to fight on in the lower courts.

“For more than 30 months, transgender troops have been serving our country openly with valor and distinction, but now the rug has been ripped out from under them, once again,” said Peter Renn, an attorney with the group Lambda Legal. “We will redouble our efforts to send this discriminatory ban to the trash heap of history where it belongs.”

“Multiple federal courts have recognized that excluding qualified individuals simply because they are transgender is contrary to basic constitutional principles of equality and fairness,” said Shannon Minter, legal director of National Center for Lesbian Rights, one of the groups representing transgender plaintiffs.

“It’s critical to understand that the military is not required, and has no need, to reinstate the transgender ban, which would cause destabilizing whipsaws in personnel policy,” said Aaron Belkin, director of the Palm Center. “The Defense Department should not reinstate the transgender ban because it would undermine readiness, cause significant disruptions and uncertainty, deprive the military of much-needed talent, and wreak havoc with the lives and careers of the 14,700 transgender troops bravely protecting our nation’s security.”

“The Trump administration’s cruel obsession with ridding our military of dedicated and capable service members because they happen to be transgender defies reason and cannot survive legal review,” said Jennifer Levi director of GLBTQ Legal Advocates & Defenders or “GLAD.”

THE NEW CHAIRMAN WEIGHS IN: The decision drew an immediate rebuke from the new chairman of the House Armed Services Committee, now controlled by Democrats.

“I am extremely disappointed in the Supreme Court’s decision to allow the Trump administration to enforce its discriminatory ban on transgender military service without proper due process in the courts,” said Rep. Adam Smith, D-Wash.

“Anyone who is qualified and willing should be allowed to serve their country openly, without their career being affected by an arbitrary, discriminatory directive from the President. We have fought against this bigoted policy at every step, and we will continue to do so.”

Good Wednesday morning and welcome to Jamie McIntyre’s Daily on Defense, written and compiled by Washington Examiner National Security Senior Writer Jamie McIntyre (@jamiejmcintyre) and edited by David Mark (@DavidMarkDC). Email us here for tips, suggestions, calendar items and anything else. If a friend sent this to you and you’d like to sign up, click here. If signing up doesn’t work, shoot us an email and we’ll add you to our list. And be sure to follow us on Twitter @dailyondefense.

HAPPENING TODAY — TWO VOTES TO REOPEN GOV’T: It’s Day 33 of the partial government shutdown, two competing bills to end the impasse face likely defeat in the Senate when they come up for a vote tomorrow. At least in absence of a broader deal.

A Republican measure would give President Trump the $5.7 billion he wants to extend and barriers along the U.S.-Mexico border and end the shutdown. The Democratic proposal would reopen the government for about two weeks, just long enough for government workers to get their back pay, and one more paycheck, before the whole things starts again, if no agreement is reached by Feb. 8.

Congress watchers say neither bill is likely to get the 60 votes needed for Senate passage, due to the chamber’s filibuster rules.

‘UNACCEPTABLE’ TWEETS COAST GUARD COMMANDANT: “Your Coast Guard leadership team & the American people stand in awe of your continued dedication to duty, resilience, & that of your families. I find it unacceptable that @USCG members must rely on food pantries & donations to get through day-to-day life. #uscg,” tweeted Adm. Karl Schultz, commandant of the U.S. Coast Guard as his forces missed their second paycheck of the year.

“You, as members of the armed forces, should not be expected to shoulder this burden,” said Schultz in an accompanying video message.

POMPEO ‘OPTIMISTIC’: With giving any reason for his optimism, Secretary of State Mike Pompeo told the audience at the World Economic Forum in Davos, Switzerland yesterday that he’s hopeful the shutdown will soon be over.

We all hope that it’ll end fairly quickly. Political fights in the United States are a time-honored tradition, as those of you who’ve studied our history know. I hope that we get this one resolved in relatively short order,” Pompeo said in a video q-and-a from the U.S. “I’m always optimistic. I’m counting on the fact that we’ll get it resolved pretty quickly.”

PROGRESS ON KOREA: In that remote video appearance piped in from Washington, Pompeo insisted that despite media reports suggesting North Korea has been slow to fulfill promises to “denuclearize,” talks are progressing nicely.

“When Kim Yong-chol visited Washington last week, we made further progress not only in the discussions that he had with the president but Special Representative [Stephen] Biegun had the opportunity to meet with his newly designated counterpart as well, where they were able to discuss some of the complicated issues towards achieving what the two leaders laid out back last June in Singapore.”

Pompeo added, “There remains an awful lot of work to do, but good things have happened already. The North Koreans aren’t conducting missile tests. The North Koreans aren’t conducting nuclear tests. There are many steps yet along the way towards achieving the denuclearization. We’re determined to work towards achieving that. I believe at the end of February we’ll have another good marker along the way.”

President Trump is planning to meet with North Korea’s Kim Jong Un late next month, reportedly in Vietnam.

ON RUSSIA: “It’s not the case that we are doomed to a Cold War rivalry,” said Pompeo on U.S. relations with Russia. “These two nations are the two largest possessors of nuclear capability in the world. Russia is a formidable power in that respect, and we understand that, and so we need to ensure that there are conversations taking place so that we can prevent both proliferation and the risk that comes with the possession of those nuclear weapons.”

“I must say, it’s been a struggle,” Pompeo said. “We’re looking for Russia to begin to change its behavior, whether that’s its behavior in Ukraine or the work that it did to influence elections here in the United States and that it’s done to influence elections all across the world … We are not destined to be antagonists. We can do better than that, but it will take a Russian change in their outlook and behavior in the world in order to achieve that.”

NATO MEMBERSHIP AFFIRMED: All the reports about Trump’s frustration with NATO, and his questioning of the value of remaining in the alliance, prompted the Democratically-controlled House to vote overwhelmingly last night to block the president from spending any federal money to withdraw from NATO, and to set a formal policy that the U.S. will “remain a member in good standing.”

“This branch of government fully supports the alliance, the collective defense of our allies, and peace across the North Atlantic region,” House Foreign Affairs Chairman Rep. Eliot Engel, D-N.Y., said during a floor debate.

ISIS TO GITMO? A group of GOP senators — Tom Cotton of Arkansas, Marco Rubio of Florida, John Cornyn and Ted Cruz of Texas — want President Trump to transfer more than 700 “battle-hardened terrorists” detained by the Syrian Democratic Forces to the military detention facility at Guantanamo Bay.

The lawmakers assert in a letter to the president yesterday that given the “rapidly shifting dynamics in Syria, it is possible that these terrorists may escape or be released from SDF custody in the coming weeks and months” and could attempt to commit terrorist attacks in the U.S. and Europe.

The U.S. hasn’t transferred any new detainees to the detention facility — which currently houses 40 detainees — in more than 10 years. Doing so would require the U.S. to prove that the detainee in question is affiliated with a force that the U.S. is in armed conflict with.

WHO NEEDS BRIEFINGS? The time-honored tradition of having an official spokesperson take questions from reporters in a formal briefing is slowly going the way of the flip-phone, a quaint anachronism of a bygone era.

At the Pentagon, there hasn’t been a “routine” on-camera briefing from an official spokesperson since May of last year. The State Department’s daily press briefings are more like monthly or bi-monthly events. And the White House appears to have given up entirely on the process, which has become increasingly unsatisfying for both sides.

“The reason Sarah Sanders does not go to the ‘podium’ much anymore is that the press covers her so rudely & inaccurately, in particular certain members of the press,” President Trump tweeted yesterday. “I told her not to bother, the word gets out anyway! Most will never cover us fairly & hence, the term, Fake News!’”

SHANAHAN’S DEBUT? The Pentagon was planning to have Acting Defense Secretary Patrick Shanahan make an appearance in the briefing room last week to have his first interaction with the Pentagon press corps, but a weekend snowfall closed the federal government and scuttled the plan.

Now there’s talk that Shanahan may meet the press sometime this week, possibly as soon as today. As of this morning, the Pentagon lists no public events on his schedule. Stay tuned.

THE RUNDOWN

AP: Former Marine accused of spying was unwittingly given classified Russian documents, lawyer says

Washington Post: New intelligence strategy warns of threats to Western democracy

Air Force Times: Barksdale airman sentenced to 35 years for murder of roommate in Guam

South China Morning Post: Chinese military flies Su-30 fighter jet, Y-8 surveillance plane close to Taiwan in latest show of strength

AP: US and British conduct training in South China Sea

New York Times: China Proceeds With Belt and Road Push, but Does It More Quietly

AP: The Navy officer who supervised a SEAL accused of war crimes is charged

Air Force Magazine: Think of F-15X In Context Of Fighter Recap, Donovan Says

Breaking Defense: Robot Wolfpacks: The Faster, Cheaper 355-Ship Fleet

USNI News: Navy Squeezing Costs Out Of FFG(X) Program As Requirements Solidify

Flight Global: Tokyo Casts Frugal Eye Over Domestic F-35 Production

Stars and Stripes: US destroyer arrives in tense Black Sea region as Russia watches closely

Washington Post: Top diplomat for European affairs resigns from State Department

New York Times: Newark Airport Traffic Is Briefly Halted After Drone Is Spotted

Daily Press: The U.S. Navy’s Most Advanced Submarines Will Soon Be Using Xbox Controllers

Calendar

WEDNESDAY | JANUARY 23

10:30 a.m. 1211 Connecticut Avenue, N.W., 8th Floor. “US Coercive Diplomacy in Iran and Iraq: A Conversation with Ken Pollack.” www.stimson.org

4:30 p.m. 1616 Rhode Island Avenue, N.W. “Schieffer Series — The U.S. Withdraws: Syria and Afghanistan.” www.csis.org

THURSDAY | JANUARY 24

8 a.m. 2201 G St N.W. Andrea Thompson, under secretary of state – arms control and international security addresses discusses her meeting in Geneva with a Russian delegation, to discuss the Intermediate-Range Nuclear Missile (INF) Treaty at Defense Writers Group Breakfast.

10 a.m. Rayburn 2118. House Armed Services Committee Organizational Meeting for the 116th Congress. www.armedservices.house.gov

MONDAY | JANUARY 28

9 a.m. 1775 Massachusetts Avenue, N.W. “A conversation with the Chief of Naval Operations.” www.brookings.edu

12 p.m. 214 Massachusetts Ave NE. Taxing Wars: The American Way of War Finance And the Decline of Democracy. www.heritage.org.

TUESDAY | JANUARY 29

10 a.m. SD-342, Dirksen. Senate Homeland Security & Government Affairs business meeting. www.hsgac.senate.gov

12:30 p.m. 1201 Pennsylvania Avenue, N.W. Suite 400. “Revitalizing Nuclear Security in an Era of Uncertainty.” www.hudson.org

WEDNESDAY | JANUARY 30

9:30 a.m. 1152 15th Street, N.W., Suite 950. “A Realistic Path for Progress on Iran.” www.cnas.org

10 a.m. 1300 Pennsylvania Avenue N.W. “Geopolitical Implications of a New Era on the Korean Peninsula.” www.wilsoncenter.org

THURSDAY | JANUARY 31

9 a.m. 1030 15th Street N.W. “The Belarus Dilemma: For Minsk and the West.” www.atlanticcouncil.org

TUESDAY | FEBRUARY 5

10 a.m. 1300 Pennsylvania Avenue N.W. “Book Launch: On the Brink: Trump, Kim, and the Threat of Nuclear War.”

THURSDAY | FEBRUARY 7

11:30 a.m. 1667 K Street, NW. “Regaining the High Ground at Sea: Transforming the U.S. Navy’s Carrier Air Wing for Great Power Competition” https://csbaonline.org

QUOTE OF THE DAY
“It’s not the case that we are doomed to a Cold War rivalry … We are not destined to be antagonists. We can do better than that, but it will take a Russian change in their outlook and behavior in the world in order to achieve that.”
Secretary of State Mike Pompeo addressing the World Economic Forum in Davos, Switzerland, in a video link from Washington.

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