President Joe Biden has underscored his belief that promoting equality is key to restoring “the soul of our nation.” Since the inauguration, the White House has issued numerous directives and policy statements consistent with its 2020 campaign commitments to advance equality, including a comprehensive “Memorandum on Advancing the Human Rights of Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Persons Around the World“ and executive orders (EOs) “On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government“ and “Enabling All Qualified Americans to Serve Their Country in Uniform.” In order to fully realize the equality policies of the executive’s memoranda and orders—especially on military personnel issues— and ensure they cannot be undone easily by future presidents, long-term resilience measures are crucial. Congress can facilitate resilience by acting as a backstop and pursuing reform legislation.
The House took a crucial step in advancing and preserving protections for LGBTQIA+ Americans last week by passing the Equality Act. The act would amend multiple laws – including the Civil Rights Act – to make it clear that sexual orientation and gender identity are characteristics federally protected from discrimination. Even if the bill becomes law, it is not expected alone to be enough to protect LGBTQIA+ servicemembers from a future president’s potential reversal of Biden’s EO on equity in uniform service. That order works to reverse President Donald Trump’s so-called “Mattis Policy” that all but banned “out” transgender individuals from military service, which itself undermined President Barack Obama’s June 2016 policy that was supposed to open military service to all qualified transgender individuals.
Multiple courts have found that the congressionally enacted protections against non-discrimination in employment enjoyed by civilians—such as those provided by Title VII of the Civil Rights Act—do not apply to those in uniform. As commentators have noted, this is why the Supreme Court’s decision in Bostock v. Clayton County last year, which held that Titled VII protects transgender individuals from employment discrimination, left open questions about the legality of the de facto “transgender service ban.” Moreover, courts are extremely reticent to direct the executive on how to execute its constitutional national security authority. They also protect congressional authority to set parameters within which the executive and military can exercise their authority over military personnel policies.
Indeed, Congress and the executive branch both play roles in shaping who and how individuals serve in uniform. Article I, section 8 of the Constitution gives Congress the authority to “make rules for the Government and Regulation of land and naval forces” that the executive implements. This can be seen in how courts treated Selective Service parameters articulated by Congress and previous challenges to military regulations considering sexual orientations in fitness for military duty. For example, following women’s integration into the services, under 10 U.S.C. §§ 6015 and 8549, Congress prohibited them from serving on Navy or Air Force aircraft engaged in combat missions. The Pentagon interpreted these prohibitions as excluding women from combat Military Occupational Specialties as well, even after Congress modified these exclusions. When Congress reactivated draft registration via the Military Selective Service Act (MSSA) in 1980, it chose to exclude women from the mandated registration requirements. Despite litigation from several parties, the Supreme Court decided in Rostker v. Goldberg that the MSSA was constitutional, finding that it was acceptable to require only men to register for the draft because of the congressional combat restrictions on women.
The interplay of military regulation and congressional oversight to both hinder and advance equality in the ranks also can be seen in the enactment and later repeal of the “Don’t Ask, Don’t Tell” (DADT) policy. DADT was a policy compromise created by the Clinton administration that provided individuals would not be separated from uniform service for their sexual orientation so long as they did not express that orientation publicly through act or word. In 1993, Congress codified it. DADT application was problematic for multiple reasons, including that it compelled servicemembers to lie. Yet multiple courts upheld its application.
After years of the post-9/11 wars stressing recruitment and retention and increasing societal pressure to repeal DADT, then-candidate Obama pledged to do so in 2008. Once president, he affirmed his commitment, saying that he “first want[ed] to confer with the Joint Chiefs of Staff and his new political appointees at the Pentagon to reach a consensus, and then present legislation to Congress.” By the 2010 State of the Union, Obama said, “This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are.”
Not long after, Secretary of Defense Robert Gates and Chairman of the Joint Chiefs of Staff Mike Mullen endorsed DADT repeal in a hearing before the Senate Armed Services Committee, drawing a path for realization. But because DADT had been codified in part through legislation, legislation was needed to thoroughly repeal the policy. Congress did so in 2010.
The resulting process paired a broad congressional directive with implementation by the Department of Defense and the Joint Chiefs of Staff, subject to oversight. Unlike the 1993 legislation that initially enacted DADT, the repeal legislation did not direct each of the services to act in a particular way regarding a specific population that could or could not serve. Rather, it drew the outlines of the end state and allowed different parts of the Pentagon to determine how to get there. That dovetailed process meant that the end state had both the legal and institutional support necessary to succeed.
These examples show that when executive personnel action is paired with congressional legislation, reforms are more resilient. Resilient military personnel policy on sexual orientation and identity that cannot be reversed by capricious executive action is critical to recruitment and retention. At a time when seven in 10 Americans are unfit to serve, broadening and deepening the pool of potential servicemembers facilitates the military’s ability to make long-term plans for recruitment, training, and retention.
Indeed, Gen Z is the future of the All-Volunteer Force (AVF) and it is the most diverse generation for recruitment to date based on numerous metrics, including openness on social and political issues. Studies indicate that 48 percent of its members are from communities of color, about six in 10 believe that official documents should include gender options other than “man” and “woman,” and one in six identify as not heterosexual. We cannot afford to leave qualified members of Gen Z or others behind. Excluding volunteers simply because of their sexual orientation or identity denies the generation’s demographics and thwarts necessary recruitment and retention planning and goals.
Just as the Obama administration’s policy of open transgender service was abruptly reversed by the Trump administration, the policies behind Biden’s new EOs are vulnerable without a congressional backstop. The DADT repeal—which involved both executive and legislative action—offers a model for how Congress can set a backstop that would help insulate military personnel policies regarding sexual orientation and sexual identity going forward from oscillating executive priorities and policies. Like the repeal of DADT, Congress can call for the military to not prohibit transgender individuals from serving in the AVF, without specifying how exactly the services need to integrate them into military units, housing, physical fitness standards, evaluations, etc.
Several legislators have already put forth such proposals. For example, last summer after Bostock, Senators Kirsten Gillibrand (D-NY) and Susan Collins (R-ME) proposed bipartisan legislation to provide anti-discrimination protections to transgender service members, which would have effectively reversed the de facto transgender service ban. An amendment by Representative Jackie Speier (D-CA) to the Fiscal Year 2021 National Defense Authorization Act (NDAA) designed to reverse the ban passed the House in 2020 by a voice vote but did not make it into the final reconciled bill. Following the announcement of the uniform service EO, Speier pledged to introduce a FY2022 NDAA amendment “to secure a permanent policy of nondiscrimination for our armed forces” and prevent “backslid[ing] on our values of equality and inclusion” by future presidents. With both legislative houses now under Democratic control, such an amendment has better prospects for passage now than in the past.
Ensuring transgender individuals can serve their country in uniform will improve military readiness and resilience in recruitment and retention while ensuring the AVF includes the best talents this diverse country has to offer. Further, it advances LGBTQIA+ rights more broadly at home, which contributes to the United States’ ability to lead internationally as the president has called for: “by the power of our example” rather than by the “example of our power.” But for the equitable service policy to be implemented successfully in the long term, it must be part of a larger process of administration.