Critics have identified a number of concerns about Donald Trump’s pick for Secretary of Defense, Pete Hegsweth. One relates to his long-standing commitment to getting rid of what he describes as the “woke” policies of the military. What are those policies? Are there any constitutional or legislative barriers to reversing course—particularly in regards to facially exclusionary policies. Absent checks from the legislature or the judiciary, are there alternate policies that support a norm of inclusion, but address the stated or potentially legitimate rationales for such changes?
I. What are woke military policies?
“Woke” itself is a contested term. Some understand it to mean mere attentiveness to racial or other identity-based injustice and discrimination, while the DeSantis administration has defined it as “the belief there are systemic injustices in American society and the need to address them.” Read narrowly, woke policies are those that simply educate or indoctrinate (depending on your point of view) as to the existence of systemic injustices. Diversity, equity, and inclusion education would be the most obvious example. Read more broadly, woke policies would include concrete policy changes to address the existence and effects of systemic discrimination.
What do opponents consider woke military policies to be? I say opponents because even if Hegseth is not confirmed, it seems likely that any Secretary of Defense under Trump will roll back so-called woke military policies. President-elect Trump is on record as anti-wokeness generally and specifically as to the military. The Heritage Foundation offers a laundry list of policies potentially on the chopping block: women in combat, inclusion of transgender individuals, troops with AIDS serving in combat zones, gender norming or eliminating of fitness testing, instruction on and use of gender-neutral language, training and education on diversity, equity, and critical race theory, addressing extremism in the ranks, and inclusion of environmental goals for the military. Others include related policies regarding reproductive and gender-affirming care. The asserted grounds for unwoking the military range from the rejection of the existence of systemic discrimination to difficulties in recruiting and retention to declines in unit cohesion and combat readiness. Many suspect more biased reasons relating to visions of traditional gender identities and roles as well as more troublesome attitudes regarding race and inclusion. I want to focus here on those policies that exclude or treat individuals differently based on their membership in a particular group and what might address stated justifications for doing so without actually excluding all individuals belonging to particular groups.
II. Unwoking policies in regards to women and LGBTQIA service members
A. Transgender soldiers
The Trump administration seems likely to reinstate the transgender service ban affecting between 10,000-15,000 serving troops plus potential recruits. Nominee Pete Hegseth has argued that transgender service personnel cannot be integrated into troops because “being transgendered in the military causes complications and differences.” He contends that racial integration succeeded because men of different races can perform the same, but ostensibly trans-individuals (and women, discussed below) cannot. What complications and differences might those be?
1. Health Care
Trump’s first administration referenced health care costs as a reason for the ban. Those health-care costs could include gender-affirming care such as surgeries, psychotherapy, and other treatments. That cost, approximately 3 million a year under the Biden administration, is a pittance of the Pentagon’s overall health care budget of over 35 billion and a magnitude of order less than the Pentagon’s spending on Viagra. A variant on this argument is that trans individuals join the military only for gender-affirming care and will leave shortly after receiving operations, thus affecting unit cohesion and readiness. After a quick search, I have not been able to find any empirical data from the Biden administration substantiating this claim but am open to the possibility that such data does in fact exist.
A second set of health-care objections relates to the belief that trans individuals are psychologically unstable. Hegseth has argued that trans-inclusionary policies “distract from the military’s core mission, citing what he calls ‘trans’ lunacy’” and that trans-individuals themselves are a distraction. These types of arguments are similar to the conclusion of Secretary Mattis’ 2018 memo to President Trump concluding:
[T]here are substantial risks associated with allowing the accession and retention of individuals with a history or diagnosis of gender dysphoria and require, or have already undertaken, a course of treatment to change their gender. Furthermore, the Department also finds that exempting such persons from well-established mental health, physical health, and sex-based standards, which apply to all Service members, including transgender Service members without gender dysphoria, could undermine readiness, disrupt unit cohesion, and impose an unreasonable burden on the military that is not conducive to military effectiveness and lethality.
2. Fitness tests
Trans individuals present some distinctive issues when it comes to fitness testing. The DoD currently applies the fitness standards that match the individual’s gender marker in the Defense Enrollment Eligibility Reporting System. Individuals may also seek exceptions to that determination—so for instance, a trans man could request to use female fitness standards rather than male fitness standards. Relatedly, but distinctly, transgender individuals may also seek and receive fitness exemptions while on hormone therapy.
In the status quo, at least some branches provide a gender-normed test instead of a gender-neutral test to determine individuals’ physical fitness. Trump and Hegseth might object to a trans woman taking the women’s test rather than the man’s test, though I suspect they would have no objection to a trans man taking the man’s test. Under this objection, it is an unfair advantage to allow only trans women to take the “easier” gender normed test as opposed to also allowing men to take it. Or to put it differently, it would decrease combat readiness to have troops take a test not matched to their biology or to take no test at all.
3. Barracks and bathrooms
Current regulations allow that soldiers who are “stable in their self-identified gender,” can request to change their gender marker in the Defense Enrollment Eligibility Reporting system. Once granted, that means the soldier will have access to their newly recognized gender-specific facilities such as bathrooms and showers. I allow the possibility that this is causing on-the-ground problems and comment boards certainly register a host of objections.
B. Gay, Lesbian, and Bisexual Soldiers
So far, neither President Trump nor Nominee Hegseth has called to return to either Don’t Ask Don’t Tell (DADT) or a complete ban on service for gay, lesbian, and bisexual soldiers. That said, Hegseth has a vocal history of anti-gay views including opposition to gay marriage and the “homosexual lifestyle.” I remain very cautiously optimistic that support for gay, lesbian, and bisexual inclusion in society and the military will remain durable, but many of the implicit rationales for opposing women in combat and transgender service apply to gay, lesbian, and bisexual soldiers as well. I can certainly imagine calls down the road to undo this inclusion.
Moreover, as I wrote a few weeks ago, President Joe Biden’s pardon process for those convicted during DADT is also subject to reversal under the Trump administration. While no constitutional authority exists for revoking a presidential pardon once delivered, any soldier eligible for the DADT pardons must still complete the process in order to receive the pardon. So while I believe those who complete the process prior to transfer of power could keep their pardons, Trump could certainly refuse to extend the policy going forward.
C. Female Soldiers
While women have been able to serve as regular members of the military for over 75 years, the military only lifted the total ban on women serving in combat in 2013. In the status quo, all combat positions are now open to them. As of 2019, over 2,000 women are serving in combat roles or accessing combat specialties. As of 2024, over 8,000 women would be affected by a ban. But Trump’s nominee has said plainly the U.S. military should not have women in combat roles as men are more capable particularly in “physical, labor-intensive type jobs.” Parenthetically, while he noted women could perform as pilots, he did not suggest excluding men from piloting positions despite at least some evidence that women perform better than men. So while access to combat roles such as pilots might remain open (though one could imagine rolling that back as well because downed pilots may have physically demanding tasks on the ground), Hegseth has suggested that SEALs, Rangers, Green Berets, MARSOC, infantry battalions, armor, and artillery would all be off limits.
III. The absence of constitutional and statutory protections for LGBTQIA and women soldiers as such
We live in a country in which most employees are statutorily protected against discrimination on the basis of sex—either under Title VII of the Civil Rights Act of 1964 or analogous state and city protections. Under Bostock, the Title VII language “because of sex” extends anti-discrimination protections not just to women and men, but also to gay, lesbian, and transgender individuals. In other words, employers may not hire and fire on the basis of an individual’s sex, sexual orientation, or gender identity. Congress, however, deliberately chose to exclude the military from Title VII. Calls to expand Title VII or pass statutorily analogous protections to the military included have not succeeded, though the military’s criminal code does now explicitly address sexual harassment. Thus, the courts had not struck down long-standing prohibitions on women serving in combat, gays and lesbians serving in the military, and the more recent prohibitions on transgender individuals have not been struck down on legislative grounds. Rather, they were left to the executive branch’s discretion.
But what if the Supreme Court extends Bostock’s reasoning to constitutional analysis? In U.S. v. Skrmetti, the Supreme Court is poised to determine whether Tennessee’s state ban on hormone therapy as gender-affirming care for transgender children violates the Constitution’s Equal Protection Clause. The plaintiffs argue that this is a classification on the basis of sex, mirroring the winning argument for transgender individuals in Bostock. They contend that since cis children may take hormone therapy, the ban for purposes of gender-affirming care which would only affect transgender children would be constitutionally problematic After confirming my intuitions and discussing with my colleague Bill Watson, I think there is a vanishingly small chance of the court concluding that this distinction of when a drug’s use is permissible versus impermissible counts as a sex-based classification for purposes of equal protection analysis. As Kavanaugh argued in Bostock, the court could likely conclude that this interpretation runs contrary to long-held understandings of the Equal Protection Clause. Relatedly, I assign the chance this Court takes the even more aggressive step of instead recognizing gender identity as a suspect class (or a cognizable class) for purposes of equal protection analysis at all as asymptotically approaching zero.
But even if I were wrong, and the Court embraced one of these approaches, I still feel confident that bans on transgender individuals would survive constitutional scrutiny and that bans on gay, lesbian, and bisexual soldiers, as well as bans on women in combat roles, could be reinstated. First, sex is subject to intermediate not strict scrutiny. While I can imagine an alternate Supreme Court finding the government lacked an “exceedingly persuasive justification” to exclude transgender troops, similar to the rationale striking down the exclusion of women from Virginia Military Institute, I cannot imagine this one doing so. Moreover, even if the Court applied Bostock to the Equal Protection Clause and applied either intermediate or strict scrutiny, I do not think they would extend that analysis to the military. As with Congress and Title VII and many other statutes, the Supreme Court often treats the military as exceptional for purposes of constitutional assessments. The court usually doubts its institutional competence in assessing competing interests that the military asserts (such as combat readiness and unit cohesion) and gives broad deference to the military—particularly with long-standing practices.
IV. Now what?
I have written elsewhere about the virtue of inclusive, pro-dignity norms and policies in the military. Are there policies that satisfy the offered justifications for changing the status quo without reverting to facial exclusion? I offer two possible second-best policy changes that would at least allow for some expressive inclusion even as they would likely still foster the departure of many women from combat roles and transgender individuals from the service.
First, the military could adopt gender-neutral fitness testing. As Hegsweth’s stated opposition is not to all women in the military—just women in physically demanding roles, gender-neutral testing would address that concern. Similarly, it would address any perceived unfairness regarding trans soldiers taking what is perceived as the wrong test. Of course, one might be fairly concerned that such testing might arbitrarily or intentionally favor feats of strength more easily performed by men without measuring necessary task-specific strength, but it would still be more inclusive than a total ban.
Second, the military could eliminate fitness testing exceptions for trans individuals and gender-affirming care such as hormone therapy and surgery. Again, this might not be my preferred policy outcome, but it has the virtue, minimal as it might be, of not excluding trans individuals as such on its face. In a world of forced choices, offering second-bests is plausibly better than the alternative. At the very least, if supporters reject these alternative solutions despite the fact that they address their stated operational concerns, those supporters would need to explain why total exclusion is necessary—revealing that their true motivations may stem from prejudice rather than from practical military considerations.
