President Trump’s tweets announcing that he will order the military to reimpose a ban on so-called transsexual service members may please his political base, and also further galvanize political opposition on the left, but as a matter of policy, it is a muddle he might have best left alone.  The problem is not that President Obama’s lifting of the ban was a good thing, or that reimposing the ban is necessarily wrong.  It’s that transsexuals are hardly a serious problem for the military today, and legally, the situation regarding sex and sexual identity in the military is a morass.

Good evidence of this was the ambivalent-sounding response to Trump’s tweets by the Joint Chiefs of Staff, announcing “no modifications to the current policy” pending further guidance from the secretary of defense.  For his part, Defense Secretary James Mattis said much the same thing through a spokesperson, citing pending guidance from the White House, with some reports saying he was “appalled” by Trump’s action.  In other words, they will ignore the tweets for the time being, unless or until something concrete is delivered from the White House.  The military has enough on its plate now without having to further embroil itself in another social controversy. 

It is true that Obama’s action on transsexuals was playing politics with the military in the worst way, but he did, and in doing so, he encouraged some people to “come out,” thus potentially exposing themselves to separation under Trump’s new policy.  Separating these people, if that’s what it comes down to, will not go over well with many in the military, who prize loyalty, consistency, and honesty.  Having told these people you are okay to come out, it will be hard to punish them, and the military likely will strive for some kind of amnesty. 

As far as allowing transgendered people to sign up, that policy had yet to be implemented, Mattis having wisely put it on hold.  So a solution may be some form of amnesty for transsexuals already in uniform, with the ban applying to any recruitment of acknowledged transsexual service members. 

But a larger question is whether a transsexual recruitment ban can hold legal water, given the military’s policies in other areas – and by this, not just the lifting of the ban on service members sexually interested in members of the same sex, but the gender integration of the military in general. 

Whether one agreed with Obama’s lifting of the ban on homosexual service members or not, the move was inevitable, and it would have been forced on the military through legal action eventually, despite executive prerogatives.  The reason is that the underlying grounds for keeping out homosexual service members simply evaporated over the last few decades, so retaining the ban was in effect purely arbitrary. 

First, the risk of blackmail, traditionally a reasonable policy to bar homosexuals when homosexuality was a social and professional black mark, was long gone.  But more to the point, the gender integration of the military removed arguments that physical attraction and sex in the military environment were intolerable.  In fact, heterosexual relationships in the military have become a far greater headache for the command than homosexuality ever was.

As a JAG officer thirty years ago, I participated in the administrative separation of a number of homosexual soldiers.  All of the separated soldiers were competent, but one way or another, they ran afoul of the ban.  Usually, it was through some indiscretion that revealed the soldier’s orientation, followed by an admission, and then separation.  In one case, a soldier propositioned a new lieutenant, a violation of rules against fraternization in addition to revealing homosexual orientation, but that was the worst of it. 

Compare this to the situation in today’s military, where sex is fairly rampant at all levels, from private soldiers to generals, with scandals regularly roiling the services – and that’s just what we see on the surface.  Add to this the problem of pregnancies. 

Homosexual trysts, especially those between men, tend to be relatively transactional and drama-free.  That tends not to be the case with women involved, and especially not when you have multiple males competing for a lesser number of females.  And homosexual encounters do not result in pregnancies. 

As of 2015, 16 percent of female sailors were reassigned from ship to shore duty, a remarkable attrition rate that costs the Navy over $100 million per year (and growing), at roughly the cost of $30,000 per deployed pregnant sailor (not counting the added cost of losing that sailor with all the expenses of her training should she decide to leave the service due to her condition).  And this is just relationships that result in pregnancy.  It doesn’t take into account the friction of multiple sexual relationships aboard ship, or the secondary impacts of the pregnancies on the fathers (or putative fathers) left aboard ship, and so forth.  By comparison, an old sea salt might long for the days when a few male sailors occasionally stole some time together in the boiler room. 

This leaves another big question hanging.  The Obama administration also removed the last restrictions on women in direct ground combat, expanding to the utmost limits the possible interactions of men and women in the most critical, difficult, and sensitive of areas.  But the Trump administration has done nothing about this and seems unwilling to take action.  The first two female Navy special forces candidates, at least one of whom is going for the SEALs, are now in training. 

Given all this, potentially quite effective legal challenges to the transgender ban are in the offing.  After all, at least as I understand things, a transgender person is extremely unlikely to get pregnant.  A male presenting himself as a female will never be able to do it, and a female presenting herself as a male will essentially sterilize herself.  Their probable statistical deployability is likely to exceed that of the average female service member when the overall risk of pregnancy is taken into account. 

On top of all this, the services are all pushing harder than ever to attract female recruits.  It can be hard nowadays for a basically average white male (average ASVAB scores, high school record, and physical fitness) to get into the military.  On the other hand, a potential female recruit with the same qualifications, especially a minority female candidate who demonstrates the least bit of interest in a military career, will have to swat away hovering recruiters as they compete for her enlistment contract. 

Expect the services to slow-walk Trump’s tweets to bureaucratic oblivion, and any recruitment ban on transgender recruits to eventually fail a legal test. 

President Trump’s tweets announcing that he will order the military to reimpose a ban on so-called transsexual service members may please his political base, and also further galvanize political opposition on the left, but as a matter of policy, it is a muddle he might have best left alone.  The problem is not that President Obama’s lifting of the ban was a good thing, or that reimposing the ban is necessarily wrong.  It’s that transsexuals are hardly a serious problem for the military today, and legally, the situation regarding sex and sexual identity in the military is a morass.

Good evidence of this was the ambivalent-sounding response to Trump’s tweets by the Joint Chiefs of Staff, announcing “no modifications to the current policy” pending further guidance from the secretary of defense.  For his part, Defense Secretary James Mattis said much the same thing through a spokesperson, citing pending guidance from the White House, with some reports saying he was “appalled” by Trump’s action.  In other words, they will ignore the tweets for the time being, unless or until something concrete is delivered from the White House.  The military has enough on its plate now without having to further embroil itself in another social controversy. 

It is true that Obama’s action on transsexuals was playing politics with the military in the worst way, but he did, and in doing so, he encouraged some people to “come out,” thus potentially exposing themselves to separation under Trump’s new policy.  Separating these people, if that’s what it comes down to, will not go over well with many in the military, who prize loyalty, consistency, and honesty.  Having told these people you are okay to come out, it will be hard to punish them, and the military likely will strive for some kind of amnesty. 

As far as allowing transgendered people to sign up, that policy had yet to be implemented, Mattis having wisely put it on hold.  So a solution may be some form of amnesty for transsexuals already in uniform, with the ban applying to any recruitment of acknowledged transsexual service members. 

But a larger question is whether a transsexual recruitment ban can hold legal water, given the military’s policies in other areas – and by this, not just the lifting of the ban on service members sexually interested in members of the same sex, but the gender integration of the military in general. 

Whether one agreed with Obama’s lifting of the ban on homosexual service members or not, the move was inevitable, and it would have been forced on the military through legal action eventually, despite executive prerogatives.  The reason is that the underlying grounds for keeping out homosexual service members simply evaporated over the last few decades, so retaining the ban was in effect purely arbitrary. 

First, the risk of blackmail, traditionally a reasonable policy to bar homosexuals when homosexuality was a social and professional black mark, was long gone.  But more to the point, the gender integration of the military removed arguments that physical attraction and sex in the military environment were intolerable.  In fact, heterosexual relationships in the military have become a far greater headache for the command than homosexuality ever was.

As a JAG officer thirty years ago, I participated in the administrative separation of a number of homosexual soldiers.  All of the separated soldiers were competent, but one way or another, they ran afoul of the ban.  Usually, it was through some indiscretion that revealed the soldier’s orientation, followed by an admission, and then separation.  In one case, a soldier propositioned a new lieutenant, a violation of rules against fraternization in addition to revealing homosexual orientation, but that was the worst of it. 

Compare this to the situation in today’s military, where sex is fairly rampant at all levels, from private soldiers to generals, with scandals regularly roiling the services – and that’s just what we see on the surface.  Add to this the problem of pregnancies. 

Homosexual trysts, especially those between men, tend to be relatively transactional and drama-free.  That tends not to be the case with women involved, and especially not when you have multiple males competing for a lesser number of females.  And homosexual encounters do not result in pregnancies. 

As of 2015, 16 percent of female sailors were reassigned from ship to shore duty, a remarkable attrition rate that costs the Navy over $100 million per year (and growing), at roughly the cost of $30,000 per deployed pregnant sailor (not counting the added cost of losing that sailor with all the expenses of her training should she decide to leave the service due to her condition).  And this is just relationships that result in pregnancy.  It doesn’t take into account the friction of multiple sexual relationships aboard ship, or the secondary impacts of the pregnancies on the fathers (or putative fathers) left aboard ship, and so forth.  By comparison, an old sea salt might long for the days when a few male sailors occasionally stole some time together in the boiler room. 

This leaves another big question hanging.  The Obama administration also removed the last restrictions on women in direct ground combat, expanding to the utmost limits the possible interactions of men and women in the most critical, difficult, and sensitive of areas.  But the Trump administration has done nothing about this and seems unwilling to take action.  The first two female Navy special forces candidates, at least one of whom is going for the SEALs, are now in training. 

Given all this, potentially quite effective legal challenges to the transgender ban are in the offing.  After all, at least as I understand things, a transgender person is extremely unlikely to get pregnant.  A male presenting himself as a female will never be able to do it, and a female presenting herself as a male will essentially sterilize herself.  Their probable statistical deployability is likely to exceed that of the average female service member when the overall risk of pregnancy is taken into account. 

On top of all this, the services are all pushing harder than ever to attract female recruits.  It can be hard nowadays for a basically average white male (average ASVAB scores, high school record, and physical fitness) to get into the military.  On the other hand, a potential female recruit with the same qualifications, especially a minority female candidate who demonstrates the least bit of interest in a military career, will have to swat away hovering recruiters as they compete for her enlistment contract. 

Expect the services to slow-walk Trump’s tweets to bureaucratic oblivion, and any recruitment ban on transgender recruits to eventually fail a legal test. 



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