Defense Chiefs: No Change in Transgender Policy

JM Ashby
Written by JM Ashby

The Joint Chiefs of Staff of the military have informed all commanders that there will be no change in official policy allowing transgender soldiers to serve openly because no policy has been handed to them.

In a message to commanding military officers Thursday, the chairman of the Joint Chiefs of Staff said there will be “no modifications” in the military’s policy allowing transgender people to serve in the military until the president issues specific direction to the secretary of defense. Until then, General Joseph Dunford said, officers will continue to “treat all personnel with respect.”

“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 guidance,” the letter read.

In other words, Trump cannot just change policy with a tweet. No policy has been handed to the secretary of defense and the secretary has not conferred a change in policy to the Joint Chiefs.

Secretary of Defense James Mattis is currently on vacation and reportedly had no idea Trump was going to shit the bed yesterday.

The White House can and probably will try to force the Pentagon to accept some kind of change in policy at some point, but that policy, whatever it is, will almost certainly be challenged in court.

A ban on transgender military service could be challenged on constitutional grounds, but there are other reasons why discharging current service members probably won't happen.

Trump’s tweet says, cryptically, that trans people can’t serve “in any capacity.” But discharging them after they’ve been told they have the right to serve would create serious problems of reliance.

Reliance is a legal term defined as acting on another’s promise or claim. As a general matter, you can’t induce someone to behave in a certain way, and then impose negative consequences when they do so. Courts have long invoked principles of basic equity to prevent unfairness in different situations. A person relocates based on a job offer, and incurs moving expenses and loss of his current job. A woman promises to give a man $10,000 to buy a car, and the man makes the purchase based on that promise. If the promisor then reneges on the commitment, courts will make them pay for the injured party’s loss. That is, as long as the reliance on the promise is reasonable—meaning that someone in the position of the promisee could have been expected to act on the promise.

Applied to this case, discharging someone currently serving as an openly trans person in the military—in other words, someone who came out or joined because of the military’s new policy—would create a serious reliance issue. If trans people are discharged, lawsuits will follow. Even if they aren’t, we can expect attorneys to seek a declaration from courts that no such discharges would be legal.

  • muselet

    After consultation with my Generals and military experts …

    One supposes those would be the same generals who were taken by surprise by Donald Trump’s unusual—even irregular—announcement. Imagine that. And no, of course the military won’t just hop to and imiplement Trump’s tweets as policy. It doesn’t work that way.

    This is schmuck bait, a Trump specialty. Somewhere in RealMurca, people are cheering because The Presnit’s gonna piss off them damn’ libruls! without knowing what the current policy is or whether it will change.


  • Username1016

    I wondered about that. All the headlines made it sound as though he’d just unilaterally made a change — and I’m thinking, with a tweet? Surely that’s not actionable…

    • ninjaf

      He probably thinks it is.

      • Username1016

        Oh, no doubt. He doesn’t know how ANYTHING works. He thinks he’s emperor, and everyone needs to scurry around carrying out his lightest wish.

  • Wait for him to make it real, otherwise he’s just pissing in the wind. And then hold off during all the lawsuits will surely follow. By the time Herr Orangenfuhrer is out of office, they can ignore this bullcrap.

    • Michael B. Conway

      If Trump resigns or is impeached, Pence will do it and worse. Not just trans, but all queer soldiers. He would be fine with making the entire military MALE ONLY.

      • Username1016

        You mean cis male only

      • You’re assuming that Pence won’t be taken down by Russian investigation as well. He’s lied repeatedly about what he knew and when. So I’m hoping that Pence will not end up in a position to implement such a horrendous policy.