By Nicole M. Elias, Melissa S. Brand, and Peter S. Federman –
On July 26, 2017, President Trump tweeted: “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow… Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming… victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.”
The President’s tweets left many wondering whether he could formally command the military to oust transgender service members, and what the tweets mean for policy, leadership, and ethics.
There is a horrifying and shameful historical precedent for banning lesbian, gay, bisexual and transgender (LGBT) individuals from both civilian and military positions within the federal government. Beginning in the 1950s, there was a government-wide effort to purge LGBT individuals from the federal government and prohibit any LGBT individuals from being hired in both civilian service and military service. The Pentagon considered transgender people in particular to be sexual deviants who had to be forced out from service. While much of the federal government has shifted away from these blatantly discriminatory practices of the 1950s, one official recently told the Washington Post that with regard to transgender individuals in the military, “‘That mind-set from the 1950s and 1960s’ is still pervasive among the Pentagon’s longest-tenured civilian staff.”
Upon the repeal of Don’t Ask Don’t Tell, many Americans were surprised to learn that the policy had only applied to lesbian, gay, and bisexual individuals in service, and that there were separate, decades-old regulations instituted by the Department of Defense (DOD) which banned transgender individuals from both joining the armed services and from remaining in the armed services. DOD’s regulations precluded applicants from joining the military if they had a physical or mental condition specifically related to gender identity. For transgender individuals who were already in service, if they disclosed that they had a “sexual gender and identity disorder”, it would automatically impact their fitness for duty and was grounds for removal from service.
On October 1, 2016, Secretary of Defense Ash Carter announced that the ban against transgender individuals in the military would be lifted and gave each branch of the armed services until July 1, 2017, to develop policies to assist in the enlistment and retention of transgender individuals. Secretary Carter directed in his statement, and the DOD explicitly reiterated in subsequent policy, that “Effective immediately, transgender Service members may serve openly, and they can no longer be discharged or otherwise separated from the military solely for being transgender individuals.” These assurances resulted in approximately 250 service members applying to change their gender in the military’s personnel system and seeking gender identity related medical care. It also provided job security for the 15,000 transgender service members currently enlisted in the military. On June 30, 2017, the day before the policies were set to take place, Defense Secretary Jim Mattis delayed the implementation of the policies by six months. Twenty-six days later, the president issued his set of three tweets.
Governing by Twitter is ambiguous and raises both procedural and ethical concerns. The president’s tweets resulted in a backlash on both social and traditional news media, and have generated a great deal of confusion as to the implications of the President’s Twitter activity. While the White House has previously stated that the President’s tweets are official statements, it remains to be seen if his tweets will ultimately lead to policy changes. While conventional wisdom suggests one cannot govern via Twitter, it does appear to be President Trump’s choice outlet for communicating policy direction to the public, similar to FDR’s Fireside Chat radio addresses or Obama’s “West Wing Week” YouTube series.
Although the President’s tweets may signal policy intent, the tweets themselves do not create or alter policy. Assuming the current administration follows precedent, it would likely be the Secretary of Defense who would announce the policy change and submit to the agencies under his purview a plan for implementation. Though there are reports that Secretary of Defense Mattis has begun the process of developing that plan, Chairman of the Joint Chiefs General Joseph Dunford told active duty service members that there will be “no modifications to the current policy until the President’s direction has been received by the Secretary of Defense and the Secretary has issued implementation guidelines.”
The president has put military leaders in the undesirable situation of dealing with “the problem of dirty hands,” which refers to the theory that it is a necessity for public servants to compromise or abandon their moral principles in order to effectively lead as a government official. Scholars assert that “dirty hands” are an inescapable ethical reality for government leaders, as leaders have “dirty hands” whenever they encounter a conflict of duties or values and must choose between alternatives. In this case, if the president’s tweets result in a policy change, military leadership will be faced with an ethical conflict and must choose between two “dirty hands” alternatives:
1) Obey the president and implement a policy that bans transgender members from service, which would require military leaders to go against their year-long assurances to their subordinates that transgender personnel could serve openly without repercussion, and would require those leaders to ignore the numerous studies that concluded transgender personnel will not have an adverse impact on the military; or
2) Stand with their subordinates and refuse to implement any policy change that bans transgender personnel, which will likely result in that leader’s resignation or removal for insubordination and replacement of the leader with another individual who would be willing to “fall in line.”
This ethical dilemma is already proving difficult for our military’s leaders. For example, Coast Guard commandant Admiral Paul Zunkunft vowed to support transgender service members, telling reporters his office had reached out to 13 members of the Coast Guard who identify as transgender to relay the commandant’s support. The Secretary of the Navy, Richard Spencer, stated that he will follow any order the president gives on transgender troops, but that “any patriot” should be allowed to serve. Similarly, Defense Secretary James Mattis stated in an August 4, 2017 memo to all Department of Defense employees that all members must focus on “doing what is right at all times, regardless of the circumstances or whether anyone is watching,” and while the word transgender was never mentioned, the memo encouraged its leadership and subordinates to prepare for ethical dilemmas exactly like the one the transgender ban poses.
Our military leaders are not the only individuals faced with an ethical dilemma surrounding the President’s tweets; the American people are faced with ethical choices as well. American citizens must decide whether they will stay quiet while the service members who defend our freedoms are being openly discriminated against and told they are not good enough to serve in our military. Or, will American citizens decide that transgender service members have risked their lives to protect our rights, and now it is time we fight to protect theirs?
Nicole M. Elias is an Assistant Professor of public policy at John Jay College, Melissa S. Brand is a civil rights attorney, and Peter S. Federman is a doctoral student at the University of Kansas.