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The Supreme Court’s decision to, at least provisionally, allow the Trump administration’s “ban” on continued military service and the recruitment of some transgender troops comes as no surprise. Because there is no explicit law on the subject, the president’s powers as commander-in-chief are prevalent, and it was Barack Obama’s administration who by executive order lifted the ban as a parting gift to a political constituency in late 2016. But the tragedy here is that both parties again prefer to pander to their extreme base of support above both the good order and discipline of the military as well as the plight of transgender patriots.
Let’s take the military question first. Military order and discipline are, above all, the products of stability, predictability, repetition and training. They are not completely plastic “constructs,” but they are the opposite of “natural” behaviors. They build upon the human propensity for violence – and, let’s be clear, a predominantly male propensity for violence – but then constrain it, or work to constrain it, as severely as possible, to control a passion as firmly as possible. Properly clearing a house in the middle of Ramadi is not a job for Rambo.
But it is certainly the case that the repeal of the “Don’t-Ask, Don’t-Tell” policy in 2010 has not harmed military readiness or effectiveness in any appreciable way. Americans in uniform have most of the same social and cultural mores as the rest of us, and younger troops have grown up thinking that a person’s sexual desires are not necessarily a reflection of their moral character. And even the somewhat deeper religiosity of military members is better reflected in tolerance than exclusion. Gays and lesbians in service may be more behaviorally “closeted” than their civilian counterparts, but that is more from respect for the community to which they principally adhere – the uniformed community.
Since the trans ban was lifted, the military has soldiered on, again with no appreciable detriment to morale, readiness, cohesion or any of the usual metrics of effectiveness. A senior NCO or field-grade officer will complain incessantly about the privileges of the millennial cohort – and especially their addiction to their cellphones, despite the potentially fatal consequences of texting while in contact with the enemy – much less so about gender differences. The numbers of openly trans people in uniform is but a few thousand out of several million active, National Guard and Reservists in service. And now-departed Secretary of Defense James Mattis clearly had no interest in Trump’s ban. Whatever his own view on gender identity, his principal concern as secretary – and, previously, as a combat leader – was lethality not morality. The biggest threat to military effectiveness is the back-and-forth shenanigans over the ban.
Thus it becomes clear that the “trans ban” issue is driven by our domestic politics more than a disinterested concern for the armed forces. This was first of all a sin committed by the Obama administration. To begin with, lifting the ban was a below-zero priority during the first term, let alone the two years of congressional dominance before 2010. Nor was it really on the agenda of the Human Rights Campaign or other advocacy groups dominated by the “mainstream” gay-rights issues – and it’s fair (and a testament to their success) to call them that – particularly gay marriage. To this day, the attitudes of these organizations reflect ambivalence toward transgender people. In sum, and despite the very real prospect of bipartisanship – John McCain, then at the height of his influence as a senator and authority on military affairs, is likely to have rallied an important, if minority, segment of Republican leaders – the administration wanted to stoke the faithful without bothering to try to convert the agnostic. It was pen-and-phone Obama at his most arbitrary.
It was only as the 2016 presidential contest loomed that the administration discovered the transgender cause in the bathrooms of North Carolina and on Fort Bragg and other military installations. The process by which Defense Secretary Ash Carter – not Obama himself – came to announce the lifting of the ban was circuitous and driven by the White House, not the Pentagon. The Joint Chiefs of Staff were permitted to conduct studies and delaying actions, but having had their say were prepared to go along. They would have preferred to have Congress decide the issue, to reflect the changing of public opinion, not to be employed to do so.
This has left President Trump free to return the favor by executive fiat. Under public pressure from Missouri Rep. Vicky Hartzler and other evangelicals in Congress, the president performed a “reverse-Obama” in lifting the ban: granting an “easy win” to part of his base constituency. The process, however, was an inverse-Obama: revealed via Twitter and framed by the fiction that he had “consulted” with “his generals” — which included neither Mattis nor the service chiefs.
The response by the transgender-rights community has been to bring lawsuits like the one decided by the Supreme Court and others based on a variety of Constitutional penumbra. Faced with a decided, and perhaps growing, strict-constructionist majority on the Supreme Court, this is not likely to be a successful strategy – unless the purpose is political posturing and fundraising. It also suggests that advocates lack the energy and interest to wage the kind of “normalization” campaign of the sort that paved the way for ending “Don’t-Ask, Don’t-Tell,” and to misread the history of the gay-marriage effort. When the Supreme Court got around to “settling” the case – again on thin Constitutional ice – more than 30 states had passed their own laws legalizing same-sex marriage. The law was a trailing-edge indicator of changed American attitudes.
The Resistance Left has squandered the much-ballyhooed “Transgender Tipping Point” – as Time magazine put it not so long ago. Most Americans have become rather tired of the excesses of political “transgenderism” and the politics of “intersectionality.” The conservative right, too, resists the process of normalization, heroically manning the pronoun barricades and pretending to pity the poor “gender-dysphoric.”
Who should be able to serve ought to be mostly a cost-benefit calculation based upon who can best defend America, our interests and our political principles. The best military judgment might find room or use for all sorts of differing-but-dedicated talents, even if they require medical help – Alan Turing was a strange genius, convicted of “indecency” for his homosexuality and almost surely a suicide, but did as much as any of Britain’s greatest generals to defeat Nazi Germany. You wouldn’t want him in the infantry squad in Ramadi, but you would very much want him working for your side.
But both sides of the trans-in-uniform divide would rather have the fight than resolve the issue by convincing the public at large and passing legislation. The result is a painful and disproportionate stalemate, cruel to a very small and almost powerless minority of Americans and disruptive to those – an only slightly larger segment of our society – who risk their lives to protect our country.
Although the Supreme Court’s decision to allow the Trump administration’s “ban” on transgender service men and women comes as no surprise, this highly politicized fight is one that should have been resolved by either side convincing the public at large and passing legislation, not through top-down policy implementation.
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