Terry H. Schwadron
March 29, 2018
Once again, we had a middle-of-the-night announcement about a jagged change in social policy — this time involving transgenders in the U.S. military. And once again, the question to me is about whether this ever will actually take effect.
This issue is before the courts, and even presidential proclamations or bullied Department of Defense studies on the subject are not going to change the fact that the issue is to be decided by a judge rather than by fiat.
Over and over, we see the Trump administration force-feeding its version of acceptable social policy as a matter of domestic partisan politics rather than as the result of good reason. And even then, without regard to whether I agree with the policy or not, it is done in a fashion that is ineffective in its reach.
Why was this announcement in the middle of the night? Why are there so many questions about how current transgender troops will be treated? Why are we turning enlistees away from joining the military altogether?
Last Friday night, the White House made public an order banning most transgender troops from serving in the military except under “limited circumstances,” following up on a similar ban announcement last year to ban transgender individuals from serving. The earlier announcement first was held up by the Defense Department (and the Department of Homeland Security on behalf of the Coast Guard), which said it needed to study the issue, and then by the court, which said it was unconstitutional.
Now, the White House said it was refining the earlier policies to focus on individuals with a history or diagnosis of “gender dysphoria” — those who may require substantial medical treatment — who “present considerable risk to military effectiveness and lethality.”
The order overturns a ruling by the Obama administration to allow transgenders into the military.
Four federal courts have blocked the Pentagon from discriminating against transgender individuals, and the Obama orders remain in place. So, it seems an open question over whether the newly announced plan or any effort to ban transgender troops will ever take effect.
Despite the results of a few months’ of study, there is nothing really different in the new order about the basic discrimination that was found to violate
The newly announced order dresses its anti-transgender propaganda in language about security and military readiness, though it is a little hard to see what that means. The legal question is whether that word camouflage satisfies legal objection.
Transgenders have served openly in the military and have receive transition-related health care since June, 2016; transgender men and women have continued to enlist since January. A landmark RAND study had found that transgender individuals did not undermine readiness and unit cohesion or impose undue costs.
It was reported that Vice President Mike Pence took a strong hand in leading a panel of experts in creafting the justification behind last week’s order. Pence is outspoken in opposition to gays and transgender choices. Other participants included Ryan Anderson an anti-transgender activist, and Tony Perkins, head of the Family Research Council, which lobbies against LBGTQ issues. Based on this panel’s thinking, Defense Secretary James Mattis, who has supported transgender service, issued a memo encouraging Trump to ban transgender people from joining the military.
All issues about whether the presence of transgender individuals in military units “undermine readiness,” as asserted, this was policy created specifically to appeal to an evangelical Christian voter base, not towards improving the military.
The RAND study analyzed the armed forces of Australia, Canada, Israel, and the United Kingdom after each country legalize transgender service; it found no impact on “readiness.” The new White House memo noted that each country reported some initial resistance in the ranks.
In the court cases to date, military witnesses have testified that there is no measurable loss of readiness or other bad effects.
The new order would appear to pressure would-be transgender individuals from pursuing medical treatment while in the military, something that courts have noted. The order also underscores privacy concerns, just as the arguments about the use of school bathrooms have argued, also failing in the courts.
The order also repeats that the cost of medical services is onerous, an argument that has seemed to carry no legal weight, and little actual budgetary sense. It certainly costs less than any planned military parade.
The new policy probably means that openly transgender people should be banned from entering the military and that current troops should be discharged unless they agree not to transition while in the military. These are suppositions rather than policy because the White House has not spelled them out.
One appeals court said, “It must be remembered that all plaintiffs seek during this litigation is to serve their nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the nation, the people of the United States, and the Constitution against all who would attack them.”
That declaration would seem to set a high non-legal bar for a new policy to surpass. As with all these social issues — immigration policy, health care, abortion and more — this eventually will find its way to the Supreme Court.
Treatment of transgender individuals is a civil rights issue, and should not be the stuff for feeding the Trump political base.