The Supreme Court recently declared in Bostock v. Clayton County that Title VII of the 1964 Civil Rights Act bans employment discrimination on grounds of “sexual orientation” or “gender identity.” This triggered more than 100 Democratic House members to immediately demand that Defense Secretary Mark Esper revoke the 2018 Defense Department Policy regarding people who identify as transgender or have been diagnosed with gender dysphoria.
They also insisted that Attorney General William Barr stop fighting lawsuits challenging that policy in court, and announced plans to add repeal amendments to the Senate and House defense authorization bills. Votes could come this week, as early as today.
Yet nothing in the Bostock decision justifies capitulation to these demands or a legislative repeal. Thirty out of 30 lower courts over five decades had refused to equate “sex” with “sexual orientation,” much less “gender identity.” There is no evidence Congress wanted the Civil Rights Act to prohibit discrimination based on sexual orientation and transgender status.
Supreme Court Justice Neil Gorsuch nevertheless claimed a reasonable person would have understood that a ban on discrimination based on “sex” also included sexual orientation and transgender status. Justices Samuel Alito and Clarence Thomas, in dissent, described that opinion as “preposterous. … [T]he majority’s argument is not only arrogant, it is wrong.”
This Doesn’t Apply to the Military
Congress should not surrender its legislative power to decide such issues, especially since the Supreme Court clearly stated Bostock was not deciding future cases involving transgender status or “gender identity” as a nondiscrimination category.
The Civil Rights Act of 1964 does not even apply to the military. Combat missions are unlike any occupation in the civilian world, and military policies must prioritize readiness and morale, not social agendas or career advancement for individual service members.
Sens. Kirsten Gillibrand, D-N.Y., and Susan Collins, R-Maine, want to repeal the 2018 Defense Department policy by amending the National Defense Authorization Act for 2021. They and others object to what is called a “ban” resulting from three presidential tweets in July 2017.
The U.S. Court of Appeals for the D.C. Circuit, which reversed a lower court’s injunction halting the policy, said it was “clear error” to deny significant differences between informal tweets and the Defense Department policy approved in March 2018.
To Repeal Is to Deny Biology
The current policy, which followed six months of review and a comprehensive Defense Department report, is not based on gender identity and does not “ban” enlistment or retention of transgender people 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 “grandfather” provisions related to the 2016 policy, the 2018 policy accommodates transgender people who serve in their biological sex if they meet deployability requirements and have been stable (without gender dysphoria) for 36 months.
A vote for repeal would endorse the unscientific notion that sex is “designated” or “assigned at birth,” an ideological theory that disregards biology. Science teaches that sex is determined long before birth, in human DNA that exists from the moment of conception in every cell of a person’s body.
The Departments of Justice and Education have endorsed the right of female athletes to compete against other females, not biological males claiming to be female. This reflects formerly unquestioned reality: Men and women are different in strength, endurance, athletic prowess, and other physical attributes.
The Department of Defense and all military services should not be forced to deny well-established scientific knowledge about immutable DNA, human genetics, and physiology. Among other things, such a policy would invite biological men to enter female-specific teams and locker rooms at military service academies, colleges, and other schools worldwide.
The Military’s Objective Is Not to Avoid Controversy
While fairness to female athletes is important, avoiding confusion and controversy within the military, and medical concerns that hinder combat effectiveness, are even more important.
The Defense Department’s Final Report and Recommendations, citing the Military Health System Data Repository, noted that 994 active-duty service members diagnosed with gender dysphoria from October 2015 to October 2017 accounted for 30,000 mental health visits, a 300 percent increase in individual medical costs, and significant lost time.
Administrative data revealed high rates of mental health conditions such as anxiety, depression, and substance use disorders among transgender troops. The Defense Department also reported, “Service members with gender dysphoria are eight times more likely to attempt suicide than Service members as a whole.”
Repeal would force medical professionals to provide expensive, long-term hormone or surgical treatments for people identifying as transgender, regardless of medical ethics concerns and deeply held personal convictions.
A Political Decision Would Harm the Military
Additional issues affecting morale include privacy concerns in women’s sleeping, bathroom, and shower facilities; time-consuming training programs to teach LGBT ideology and mandatory preferred-gender pronouns denying biological sex; and violations of religious liberty for chaplains and people of faith.
Activists who ignore these controversies claim a mislabeled “Pentagon study” found that two-thirds of troops support transgender people being in the military. But there was no Pentagon funding for this two-year-old project, done by California-based social service academics. The authors’ feelings-oriented micro poll of self-selected respondents, which drew heavily on LGBT sources, used a “woke” ideological vocabulary and dubious methodology dressed up with statistical jargon.
Gender dysphoria requires compassion and competent treatment, not political decisions that harm the military. Administrative or congressional action to repeal the 2018 Defense Department policy would do nothing to support the troops or to strengthen mission readiness and morale, but it would justify a presidential veto of the defense bill for 2021.