Defense Secretary Jim Mattis missed a Wednesday deadline to provide President Donald Trump guidance on transgender service members, which the Pentagon said reflected the complexity of the issue.
“The secretary is taking his time to consider the information he’s been given,” Pentagon Press Secretary Dana White told reporters Thursday.
Based on direction from the White House, Mattis had a Feb. 21 deadline to provide Trump his recommendations on whether allowing transgender service members to serve negatively impacted readiness, and whether those already in the military should be allowed to continue to serve.
Mattis has received and considered internal recommendations from a DoD study and panel looking at the issue, White said. However he is not obligated to follow their advice and is evaluating the issue “through the lens of lethality,” White said.
Outside the Pentagon, the courts have already weighed in on key aspects of the policy.
“Things are at a very confusing moment right now,” said Shannon Minter, who is representing transgender personnel in two of the four federal lawsuits challenging Trump’s ban.
“When President Trump issued his official memorandum [in August of 2017] he ordered Mattis in that memo to provide the president with a written plan on how to implement the plan by Feb 21. So we’ve all been waiting, It’s obviously an important recommendation on exactly how the plan would be implemented.”
Trump directed Mattis to provide the White House guidance on whether Trump’s July transgender ban should be reversed.
“The Secretary of Defense, after consulting with the Secretary of Homeland Security, may advise me at any time, in writing, that a change to this policy is warranted,” Trump said in the August 2017 memo.
The Pentagon is likely to provide guidance to the White House by the end of the week, White said.
The guidance is not expected to be made public, several defense officials told Military Times.
The White House is not obligated to accept Mattis’ recommendations, and the August memo said that barring any decisions to the contrary, on March 23, 2018, the White House intends to reinstate a ban on transgender service members and allow no additional funds to be spent on sex-reassignment surgeries.
It was not clear if on that date the White House would also make Mattis’ February recommendations public. In addition, parts of Trump’s August directive have already been overturned in the courts, further muddying what exactly the transgender policy will be.
In the August memo, Trump also directed that no new transgender recruits be allowed to enlist in the military, upending earlier direction from Mattis that set a six-month delay that expired Jan. 1. Multiple federal courts have also ruled against that limitation, and transgender personnel were allowed to join the military as of Jan. 1, 2018.
In a statement issued in late December as the Jan. 1 ban expired, the Justice Department pointed to the anticipated guidance, supported by a study Mattis directed last August, as reason not to further pursue that angle of the ban.
The courts are still weighing in on the wider issue of whether any restrictions on transgender service are constitutional. In the two federal cases that Minter is involved with, administration attorneys have pointed to the anticipated policy from Mattis as a reason for delay. The cases are also in a heated discovery phase where attorneys for the transgender plaintiffs are trying to determine on what basis Trump made his July decision, and in consultation with whom.
This week, BuzzFeed reported on emails it obtained that it said showed that Chairman of the Joint Chiefs Gen. Joseph Dunford was not consulted and caught off guard by the tweet, In subsequent memos to service members and in Congressional testimony Dunford has repeatedly said “any individual who meets the physical and mental standards … should be afforded the opportunity to continue to serve.”
Dunford spokesman Air Force Col. Pat Ryder would not confirm whether the emails BuzzFeed obtained were authentic, stating that “because there is ongoing litigation regarding DoD policy on transgender accessions, it would be inappropriate for us to comment at this time on questions related to actual or alleged internal DoD correspondence.”
Meanwhile, the first new transgender recruits are getting closer to enlisting, Minter said. Nicolas Talbott, 24, is one of the plaintiffs Minter is representing. Talbott has completed all of the medical paperwork necessary, including verification that he has had 18 months of stability after transitioning to a male.
“Next step is to schedule the MEPS,” Minter said.
Tara Copp is a Pentagon correspondent for the Associated Press. She was previously Pentagon bureau chief for Sightline Media Group.