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Posted on Jul 6, 2020 Print this Article

Supreme Court Ruling Does Not Make Case for Repeal of 2018 DoD Policy Re Transgenders in Military

On June 15, the U.S. Supreme Court handed down a ruling that unilaterally enacted controversial legislation to bar employment discrimination on grounds of “sexual orientation” or “gender identity.”  (Bostok v. Clayton County

This decision did not apply to the military, and it should not be interpreted as a reason for Congress to repeal the 2018 Defense Department (DoD) Policy regarding persons who identify as transgender or have been diagnosed with gender dysphoria.

Legislation to repeal the policy was not included in House and Senate Armed Services Committee versions of the National Defense Authorization Act (NDAA) for 2021, but the issue bears watching.  Amendments to add “gender identity” to Military Equal Opportunity (MEO) non-discrimination categories still could be proposed with amendments before the 2020 election or during the lame-duck session.

For several reasons, Congress should continue to oppose repeal legislation and support the 2018 DoD policy.  In addition, the Trump Administration should ensure that all Executive Branch Departments and military services faithfully support, defend, and implement the 2018 DoD policy. 

1.  The Supreme Court Got It Wrong 

Justice Neil Gorsuch, who wrote the (6-3) majority opinion, found that “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.” He added, “. . . [I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” (p. 9)  

In other words, Justice Gorsuch found that when Title VII of the 1964 Civil Rights Act was enacted, a reasonable person would have understood that banning discrimination based on sex necessarily banned discrimination based on sexual orientation and transgender status.  Justice Gorsuch’s conclusion that a reasonable person would have so understood Title VII in 1964 is belied by his opening line in the opinion where he noted that legislation of this type can have “unexpected consequences.” 

If the consequences were unexpected it strains credulity to claim a reasonable person in 1964 would have understood Title VII to prohibit discrimination based on sexual orientation and transgender status.  And, of course, there is no evidence that Congress intended to include those as protected categories in Title VII.

The majority opinion also ignored five decades of prior cases in which 30 out of 30 courts refused to equate “sex” with “sexual orientation,” much less “gender identity.”

  • Justice Sam Alito and Justice Clarence Thomas, who joined Alito’s dissent, described the majority opinion as “preposterous. . . [T]he majority’s argument is not only arrogant, it is wrong.” 
  • Justice Brett Kavanaugh added, “Like many cases in this Court, this case boils down to one fundamental question: Who decides? . . . The Court’s ruling comes at a great cost to representative self-government.” 
  • Justice Alito’s dissent noted that repeated attempts over 45 years failed to pass legislation like the Employment Non-Discrimination Act (ENDA) and the pending Equality Act.  In the Bostock case, the Supreme Court exceeded its authority by imposing an extreme policy on Americans without the consent of legislators who represent the people.     

There were and are many good reasons why Congress should stand its ground and refuse to ratify the Supreme Court’s usurpation of legislative power.  However, if misguided legislation to impose all aspects of the transgender agenda on our military should pass in the House and the Senate concurs, President Donald Trump should veto the National Defense Authorization Act for 2021.

2.  Civilian Employment Law Does Not Apply to the Military

As the Presidential Commission on the Assignment of Women in the Armed Forces determined in its 1992 report, “Title VII of the Civil Rights Act of 1964, which governs civilian employment law, does not apply to the military.”  [1]

Transgender activists have claimed that a previously undisclosed two-year old academic survey, which the Military Times mislabeled  a  “Pentagon study,” found that two-thirds of troops support allowing transgender servicemembers in the military.  As CMR reported at the time, the credibility of that story collapsed under closer examination.  [2]

3.  The 2018 DoD Policy Is About a Medical Condition, Not Transgender Status

Contrary to claims the 2018 DoD policy is a “ban,” it is not based on gender identity and does not bar enlistment or retention of transgenders as a class.  The 2018 policy is based on a medical condition, gender dysphoria, which affects personal readiness to deploy and other factors. 

Except for certain “grandfather” provisions related to the 2016 policy, the 2018 policy accommodates transgender persons who serve in their biological sex if they meet deployability requirements and have been stable (without gender dysphoria) for 36 months.   

4.  Congress Should Assert Constitutional Power Over Legislation 

The majority opinion stated that the Supreme Court was not deciding all cases related to transgender status, conceding that other cases involving “gender identity” as a non-discrimination category will be heard in the future.  Congress has not passed legislation mandating inclusion of persons suffering from gender dysphoria in the military, and there is no compelling reason to do so now.

Individual members voting to repeal the 2018 DoD policy would be putting themselves on the record in in favor of the unscientific notion that gender is “designated” or “assigned at birth.” 

This ideological theory disregards biological science.  Gender is naturally determined long before birth, in human DNA that exists from the moment of conception in every cell of a person’s body.  Proposed policy changes would be more extreme that the previous administration’s 2016 transgender policy, which required a person to get their official “gender marker” changed before recognition in their “preferred gender.”

5.  Sports, Privacy, and Unresolved Legal Inconsistencies 

The armed forces sponsor many sports activities, including separate-gender teams and facilities at all the military service academies.  (See dropdown list at the USMA.)  The Title IX prohibition on sex discrimination is based on the formerly unquestioned proposition that males and females are different in strength, endurance, athletic prowess, and other physical attributes.  

The Departments of Justice and Education have officially endorsed the right of female athletes to compete against other females, not biological males claiming to be female. [3]  Congressional repeal of the 2018 policy would reject well-established scientific knowledge about immutable DNA, human genetics, development, and physiology. 

While fairness to female athletes is important, avoiding confusion and controversy within the military, which may hinder combat effectiveness, is more important. 

6.  Consequences of Repealing Standards 

The 2018 DoD policy states that military persons identifying as transgender are expected ‘to adhere to all applicable standards, including the standards associated with their biological sex.’   Open-ended legislation requiring “equality of treatment in service,” without regard to sex or gender identity, would repeal and replace this key provision.  Harmful effects on readiness and morale would include the following, and more:

  • Mandates directing military doctors and nurses to provide expensive, long-term hormone or surgical treatments for persons identifying as transgender, regardless of concerns about medical ethics and deeply held personal convictions.  (Transgender activist groups are demanding coverage for veterans and dependent children as well.)
  • “Equal opportunity” for biological men seeking access to private sleeping, bathroom, and shower facilities that are currently reserved for women.
  • The end of separate-gender athletic teams at all military service academies, colleges, and schools for dependent children, and denial of women’s accomplishments or scholarships when men gain access to female-specific teams and locker rooms.
  • Violations of rights of religious liberty for chaplains and people of faith.
  • Forced acceptance of LGBT ideology in all military training and educational programs, including politically correct pronouns that deny biological realities. 
  • Liberalized military personal conduct rules to accommodate unusual forms of sexual expression by both men and women while off-duty (As Navy Times reported in August 2018, a male sailor performed a “drag queen” strip dance on the USS Ronald Reagan.)
  • Mandatory “preferred-gender” pronouns that are inconsistent with biological sex. 
  • Negative effects on recruitment and retention of personnel and families in the All-Volunteer Force

7.  Cost and Consequences for Readiness

The DoD panel of experts, which produced the comprehensive study and report leading to adoption of the 2018 policy, cited data and information from the Military Health System Data Repository, which was based on actual DoD experiences with 937 active-duty service members who had been diagnosed with gender dysphoria.

Repeal of the 2018 policy would reimpose costs comparable to these, which are cited in the February 2018 DoD Final Report and Recommendations, on the pages noted:

  • From October 1, 2015 to October 3, 2017, 994 active duty Service members diagnosed with gender dysphoria accounted for 30,000 mental health visits. (p. 22) 
  • Since implementation of the previous 2016 policy, medical costs for Service members with gender dysphoria increased nearly three times – or 300%.  (p. 41) 
  • Transitioning Service members in the Army and Air Force cumulatively averaged 167 and 159 days of limited time on duty, respectively, over a one-year period. (p. 33) 
  • Of the 424 approved Service member treatment plans available for study, almost all of them – 91.5% – include the prescription of cross-sex hormones.  (Endocrine Society guidelines for cross-sex hormone therapy recommend quarterly blood work and laboratory monitoring of hormone levels during the first year of treatment.  (p. 33) 

8.  Elevated Mental Health Risks

According to the February 2018 DoD Report and Recommendations: “Transgender persons with gender dysphoria suffer from high rates of mental health conditions such as anxiety, depression, and substance use disorders.” (p. 21)

  • High rates of suicide ideation, attempts, and completion among people who are transgender are also well documented in the medical literature, with lifetime rates of suicide attempts reported to be as high as 41% (compared to 4.6% for the general population).”  (p. 21) 
  • “A review of the administrative data indicates that Service members with gender dysphoria are eight times more likely to attempt suicide than Service members as a whole.”  (12% versus 1.5%). (p. 21) 
  • Furthermore, “Service members with gender dysphoria are also nine times more likely to have mental health encounters than the Service member population as a whole.”  (28.l average encounters versus 2.7 average encounters per service member) (p. 22) 
  • Remedies for gender dysphoria have not been proven effective, and studies have not “account[ed] for the added stress of military life, deployments, and combat.” (p. 24) 
  • “Given the scientific uncertainty surrounding the efficacy of transition related treatments for gender dysphoria, it is imperative that the Department proceed cautiously in setting accession and retention standards for persons with a diagnosis or history of gender dysphoria.” (p. 27)

9.  Elimination of All Standards

Under previously sponsored repeal legislation, eligibility to serve in the armed forces would rely on an individual’s ability to meet gender-neutral occupational standards without any criteria relating to the race, color, national origin, religion, or sex (including gender identity or sexual orientation).  Enactment could nullify all accession qualifications, including those related to medical conditions and biological sex. 

10.  Legal Status of 2018 Policy

 On January 22, 2019, the U.S. Supreme Court effectively overruled four district judge preliminary injunctions against President Trump’s call for changes in military transgender policies, pending ongoing litigation.  Following that 5-4 ruling, the Department of Defense announced plans to begin implementation of the 2018 policy on April 12, 2019.  If Congress does not vote to repeal the 2020 DoD policy and ongoing litigation winds its way to the Supreme Court, there is still a chance (no guarantee) that the policy will be upheld as constitutional.

11.  2018 DoD Policy Result of Research, not Impulse

Sen. Susan Collins (R-ME) and others have falsely claimed that the 2018 DoD Policy consists of three presidential tweets sent out in July 2017.  On the contrary, President Trump approved the 2018 policy following more than six months of review and a comprehensive report produced by a Department of Defense panel of experts.

In addition, the U.S. Court of Appeals for the D.C. Circuit in Doe v. Shanahan, which reversed a lower court’s injunction against the 2018 DoD policy, relied on the significant differences between the President’s July 2017 tweets and the 2018 DoD policy. [4]

Department of the Navy Should Comply with the 2018 Policy

Navy Times and CNN have reported that a sailor identified as “Lt. Jane Doe” has received a waiver to remain in the Navy, even though the sailor was diagnosed with gender dysphoria in June 2019. [5]   

CMR has asked for an explanation for what appears to be an unprecedented example of non-compliance with the current 2018 DoDs policy regarding persons who identify as transgender or have been diagnosed with gender dysphoria.  A spokesman confirmed that the Navy has issued a waiver to allow a person who was diagnosed with gender dysphoria in June 2019 to continue serving in his apparently female “preferred gender.” 

The Navy statement did not mention unusual circumstances justifying this, but the Navy Times report suggests a possible explanation.  The person receiving the waiver is the plaintiff in Lt. Jane Doe v. Mark T. Esper – litigation filed in March in a Massachusetts federal district court. [6]  It appears that special treatment was granted to this person under the gun of a lawsuit. 

Absent other circumstances that might have justified a waiver, the Navy seems to be ignoring Defense Department directives and inventing its own.  Five statements in the DoD DTM 19-004, and an official Defense Department summary of the policy, clearly indicate that all persons in uniform, including those who identify as transgender, must comply with uniform standards and serve in his or her biological sex. [7]

The Navy’s apparently unjustified response to litigation is not an isolated incident in that service; it is part of a pattern. [8]  Allowing the Navy’s rogue policies to stand encourages more lawsuits, creates widespread confusion, and forces commanders to deal with questions, controversies, and predicaments that are not consistent with official policy.

The real problem here appears to be an absence of clarity in the waiver policy and the lack of an Implementation Handbook and official DoD Instruction, which are long overdue.  As CMR has recommended before, such guidelines also should reinforce long-standing rules governing personal conduct, which historically have applied 24/7 on- and off-base, on- and off-duty, for as long as a person remains in service.

After months of personnel turnover in the Pentagon, the Administration should confirm and direct appointees at all levels to faithfully implement the 2018 DoD policy in the Navy and all the services. 

Conclusion

Unnecessary and extreme congressional action to repeal the 2018 policy would do nothing to support the troops or to strengthen mission readiness and morale.  If the NDAA for 2021 includes such legislation, President Trump would have no choice but to veto the defense bill and force Congress to fix it.

* * * * * *

Endnotes



[1] This recognizes the fact that “[civil rights] provisions could impose constraints on the United States by which potential military opponents, not operating under the same constraints, might derive an advantage. . . unilateral policies adopted to promote principles other than military necessity may place the adopting party at increased risk of defeat.” (Presidential Commission Report, Nov. 1992, Finding 1.32, p. C-40) 

[3] In ongoing litigation brought by female athletes in Connecticut, pro-transgender attorneys are relying on the unscientific notion that a person’s DNA, genetic development with XX or XY chromosomes, and testosterone levels in utero and during puberty have nothing to do with a person’s strength, endurance, muscle mass, and other physical attributes.  The Departments of Justice and Education, plus Housing & Urban Development, have taken the position that biological science, not political science, should determine whether an individual is male or female.

[4] The Court found that Plaintiffs’ argument, like Sen. Collins’ statement that the 2018 DoD Policy and the 2017 tweets were the same, was “clear error” and then proceeded to set out the significant differences between the tweets and the 2018 DoD policy.  (No. 18-5257, Jan. 4, 2019, pp. 2-3)

[5] Navy Times: Navy Grants First Waiver Allowing Transgender Officer to Remain in Uniform.

CNN: US Navy Grants First Waiver for Transgender Service Member to Serve Under Their Preferred Gender  The date of the diagnosis indicated that the sailor was not among the cohort of persons who are exempt from current rules because they identified themselves as transgender during the previous administration. 

[6] Doe v. Esper, No. 1:20-cv-10530 (D. Mass., filed Mar. 17, 2020).

[7] Point #5 in the DoD summary concludes with this: “. . .Except for those who are exempt from the 2018 policy, all service members, regardless of their gender identity, must adhere to the standards associated with their biological sex. These sex-based standards — such as physical fitness and body fat standards — are based on male and female physiology, not gender identity.” (emphasis added)

Posted on Jul 6, 2020 Print this Article