Caitlyn (Cat) Kelly

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Unit cohesion is essential to military effectiveness and ultimately accomplishing the mission.[1] A common theme between the branches of the U.S. Armed Forces is a teamwork-based call to action; a call to action that requires service members to respect and be mindful of one another.[2] This camaraderie was disrupted on July 26, 2017, when our Nation’s President and Commander in Chief, President Donald J. Trump, announced—via Tweet—his intentions to stop transgender persons from serving in the U.S. Armed Forces.[3] His reasoning? That “the previous administration failed to identify a sufficient basis . . . terminating the Department’s longstanding policy and practice would not hinder military effectiveness and lethality, [and] disrupt unit cohesion . . . .”[4] Thus, the President believes transgender service members distract from the Department of Defense’s (DoD) overall mission. The President’s policy change will continue indefinitely unless he is advised otherwise—chiefly by Secretary of Defense James Mattis.[5]

Even if Secretary Mattis can otherwise advise the President, who is to say that transgender persons will not feel oppression regarding military service in the future? From history, we have seen that the campaigns to include women, racial minorities, gays, and lesbians in the U.S. Armed Forces take a very long time.[6] Likewise, reversing military discrimination takes a very long time.[7] The transgender ban’s outcome is important for not only current service members but for future persons who heed the ultimate call to duty.

Part I of this Note briefly overviews the current context of the transgender ban and the current barriers transgender persons face within the U.S. Armed Forces. The Note then transitions into necessary background information explaining U.S. Armed Forces unit cohesion over the past few decades, and how discriminated groups overcame legal hurdles to heed their call to military service. Next, the Note discusses how other countries handle discrimination within their armed forces. Particularly, this part of the Note explains how studies and case history have found that there is no “evidence of an effect on the operational effectiveness, operational readiness, or cohesion of the force” of a foreign country from open service by transgender persons.[8] Finally, the Note addresses how social organization within the military is the biggest advocate in the fight towards letting transgender persons respectfully serve in the U.S. Armed Forces.

Lifting the transgender ban is a story about organizational dynamics within the Pentagon, military culture, the public at large, and political dynamics.[9] Perhaps, the most important example of getting past the hurdles of military discrimination—and now the most effective strategy in lifting the ban—is to provide the issue of transgender military service with a human face. As Judge Fletcher observed in Philips v. Perry, “judicial deference to a military policy that is based upon hatred of, and prejudice toward, an excluded class of people is unjustified.”[10]

[1] William M. Hix & Robert J. MacCoun, Unit Cohesion and Military Performance, in Sexual Orientation and U.S. Military Personnel Policy: An Update of RAND’s 1993 Study 137, 137 (2010).

[2] Military Creeds at a Glance, Military.Com, http://www.military.com/join-armed-forces/military-creeds.html (last visited Sept. 27, 2017).

[3] Trump Sets in Motion a Ban on Open Transgender Military Service, LGBT Law Notes, Sept. 2017, at 294, 294.

[4] Military Service by Transgender Individuals, 82 Fed. Reg. 41319, 41319 (Aug. 30, 2017).

[5] Trump Sets in Motion a Ban on Open Transgender Military Service, supra note 3, at 294–95.

[6] Aaron Belkin, Palm Ctr, Here Today, Gone Tomorrow: Why the US Military’s Transgender Ban Unraveled So Quickly 3 (2016).

[7] Id.

[8] Agnes Gereben Schaefer et al., Rand, Assessing the Implications of Allowing Transgender Personnel to Serve Openly xiii (2016).

[9] Belkin, supra note 6, at 18.

[10] Phillips v. Perry, 106 F.3d 1420, 1439 (9th Cir. 1997) (Fletcher, J., dissenting).