In this two-part series, I address recent military review board decisions to retain transgender service members. In part one, I consider whether such actions are properly thought of as nullification and, if so, whether common justifications for jury nullification apply in this setting. In part two, I will address whether military review board members, unlike jurors, could be punished for such “administrative nullification” and, if so, whether viable defenses do or should exist.
Background on military review boards and service retention waivers
When my co-author and I first wrote about military review boards, we bemoaned the shuttling of transgender service members into administrative discharge proceedings often used for those accused or convicted of wrongdoing. We decried the process for aggressively limiting retention options and eliminating the discretion board members ordinarily possess. And now it appears service members sitting on those boards might not only share those objections but also have acted on them.
By way of background, administrative boards like those used here usually get to consider both whether a factual basis for separation exists and, if it does, whether to recommend retention or discharge and, as relevant, the form of discharge. In so doing, they generally consider the service member’s full service record, their likely future performance, the possibility of their rehabilitation, and how their continued service or dismissal would implicate discipline, good order, and morale. Of course, boards always face some constraints; for example, they may not relitigate a relevant court-martial or civilian conviction when determining underlying misconduct. But here, constraints are at a maximum. Guidance instructs review boards to dismiss any service member found to have transitioned or to have experienced “transgender feelings[,] or [transgender] tendencies.” Boards were not provided an affirmative opportunity to weigh evidence of excellent service, particular accomplishments, specialist skills, or character information for the retention question as they do for run-of-the-mill service members. For instance, the Navy guidance directs boards to only make findings on the “question of diagnosis, history or exhibit[ion] of symptoms consistent with gender dysphoria.” Furthermore, it directs that all boards use a standardized findings and recommendation sheet.
While boards theoretically may recommend a waiver, and service members dissatisfied with a recommended discharge may request one, in reality, transgender service members will not find waivers a viable path for retention. The waiver eligibility criteria requires that the service member demonstrate (a) that they have never attempted to transition to another sex; (b) 36 consecutive months of stability in the individual’s sex; and (c) that retention would satisfy a compelling government interest such as “a special experience, training, and advanced education in a highly technical career field designated as mission critical and as a hard-to-fill career field.” Moreover, only branch secretaries aware of the extreme and ongoingemphasis placed on the enforcement of this policy may grant such a waiver. After searching, I found no evidence of even a single granted waiver. Contrast, for example, the first Trump administration, in which waivers granted under different criteria were made public. Of course, my inability to identify one is hardly conclusive evidence, but given the extremely narrow criteria, both a submission and a grant rate of zero would be unsurprising.
And initially, under these constraints, boards overwhelmingly circled the relevant factual determination on the form triggering dismissals. Yet some boards wanted to register disapproval with the limited options provided. In at least one case, the board wrote on the recommendation form that a service member’s outstanding record was a reason in favor of retention, but still circled the dismissal option. Another board found a service member subject to dismissal, but wrote in a recommendation to postpone separation until the resolution of the Talbott litigation. Those examples evidence board members dissatisfied with the process but willing to follow instructions on making the factual findings leading to dismissal. Yet in a surprising turn of events, the New York Times just reported that multiple review boards have since voted to retain several transgender service members. While the records of the proceedings and the recommendation sheets are not publicly accessible, the Times’ interviews with lawyers and service members reveal a striking change in the board voting patterns.
What is and is not nullification?
Professor Rachel VanLandingham described these board decisions to retain as nullifying an unjust process—refusing to “rubber-stamp a non-choice given to them by the administration.” In this initial post, I address whether such decisions ought to be understood as nullification or merely regular adjudication. In order to do so, I will identify the relevant similarities and differences between military courts-martial that clearly do possess the power to nullify and the military review boards at issue here.
So, to begin, what constitutes nullification? In the judicial setting generally, and also specifically in the court-martial setting, courts generally describe nullification as jurors or panel members disregarding instructions on matters of law given them by judges. The paradigmatic example of nullification is a jury or a court-martial panel refusing to convict a defendant despite the applicability of a specific punitive rule to the facts as the jury believes them to be. This is so despite their belief that the state has satisfied its burdens in establishing the defendant’s guilt. In other words, jurors acquit guilty defendants by way of rejecting the applicable law. For example, if the use of crack cocaine is unlawful and a jury believes the state proved beyond a reasonable doubt that the defendant used crack cocaine but declines to convict because it believes crack cocaine laws are unjust, that counts as nullification.
In contrast, what acquittals or other pro-defendant interventions do not constitute nullification? If jurors or court-martial panels simply do not believe that the state has sufficiently proven the factual predicates supporting a guilty verdict and acquit, they have exercised ordinary adjudicative authority. Even if others, perhaps all others, would reach a different conclusion on the facts, such actors have not nullified. In addition, when decision makers exercise their affirmatively authorized discretionary power, it is not nullification. So, for instance, when a governor or president grants a pardon of a convicted defendant despite belief in their non-innocence or authorized military actors choose to replace a punitive discharge with an administrative discharge under the Uniform Code of Military Justice Article 74 or court-martial convening authorities reduce, commute or suspend sentences under Article 60a or a service secretary issued a waiver under the first Trump administration to retain a service member, those are the regular exercise of executive power.
When looking at the retention decisions as described in the New York Times and related articles, many, and perhaps all, likely fall in the nullification bucket. In all decisions I encountered in the media for which facts are provided, the service members seem actually to be transgender and did not contest that. That said, instances may exist in which the panel simply did not believe there to be any evidence of transition, transgender feelings, or transgender tendencies. Such cases, as explained above, would fall within the realm of ordinary adjudication. One might disagree with the reasonableness of a board’s beliefs in a particular instance, but it does not raise the issue of service members affirmatively choosing to disregard instructions.
At this point, I note that court-martial panels, in addition to civilian juries, possess the power to nullify. In Hardy, the Court of Appeals for the Armed Forces reiterated that “civilian juries and court-martial members always have had the power to disregard instructions on matters of law given them by the judge,” even as defendants have no right to a nullification instruction. The nullification power is a strong one—courts must abide by the jury’s determination to acquit and that is equally true of court-martial panels. Nor, under Article 37, can court-martial members be punished, directly or indirectly, for the verdict. This uneasy decision is rooted in a combination of concerns about double jeopardy and the finality of jury verdicts, but also considers the distinct importance of good order and discipline in the military setting. Ultimately, in both civilian and military criminal proceedings, courts are reluctant to look under the hood at jury or panel decision-making.
That gets us to the question of why we might allow juries the ability to nullify and whether those reasons have equal force not just for military courts-martial but also for military administrative boards engaging in a form of adjudication. The academic literature provides a variety of arguments in favor. I’ll begin with the ones that probably do not apply in this particular setting of transgender service person board hearings. The first is that the application of a general rule can yield an unjust result in a specific instance. The chestnut is when a parent in poverty steals bread to feed their child. While jurors might think the law against theft is generally sound and most thieves ought to be convicted and punished as the law directs, the application to a particular defendant is unjust. Here, however, I have not found any case descriptions where a retained service member seems fundamentally differently situated than the modal service member being dismissed. For instance, the Talbott litigation makes clear that many transgender service members are exceptionally good at their chosen profession with stellar service records, glowing character and performance reviews, as well as performing jobs that require a high degree of training and specialization. Rather, it seems much more likely that the boards’ objection is to the general prohibition rather than to its application only to the specific transgender service members in front of them.
Similarly, the argument about the distinctive importance of citizens’ participation in criminal punishment since it expresses public condemnation does not reach here, as the administrative boards are not criminal in nature and, in theory at least, non-retention in these cases expresses no public condemnation, Defense Secretary Hegseth’s ongoing slurs notwithstanding. Nor do arguments about mercy or proportionality transfer over well to the military board setting. These arguments acknowledge that defendants may have engaged in blameworthy acts, but that a conviction would yield a disproportionate punishment and there must be an opportunity for mercy.
Nor does Professor Paul Butler’s argument that members of groups disproportionately subject to the state’s coercive effects ought to have some limited capacity to resist have an obvious home here. His argument is specifically rooted in the way black communities are affected by incarceration and thus how black individuals in particular might have legitimate reasons to nullify the application of criminal laws to other black individuals. While one might endeavor to creatively extend his argument to both noncriminal settings and to transgender individuals, who no doubt have faced generations of mistreatment by society, this does not seem, even in its most expansive view, to capture what is happening here. Given the transgender service ban, it seems incredibly unlikely that any transgender service members are themselves serving on these administrative boards.
One justification, stretched a bit, that may apply is the notion that juries provide an important check against oppressive government. My own former colleague Wayne LaFave has suggested that juries’ power to provide a check on the government through nullification is an essential component in a democracy. One might view as oppressive the combination of the transgender ban itself, the animus evidenced in the policy and in Hegseth’s rhetoric, and the administrative boards’ being stripped of their normal discretion to consider the overall service record. That said, the Hardy court suggests modern American courts do not agree that such power ought to be encouraged as it would invite chaos and anarchy. So even as Hardy acknowledges the power exists, it implicitly suggests that its exercise ought to be rare. Under such a view, in a democratic society where citizens have other checks such as voting, the bucket of what counts as fundamentally unjust ought to be pretty small. So while one might defensibly argue that the government is acting oppressively here, it would be important to be able to cabin what constitutes oppression so that service members do not simply view any policy with which they disagree as oppressive. And the military setting is a particularly challenging one for applying this principle as service members often possess significantly less liberty than their fellow citizens and are significantly more subject to the coercive power of the government in the practice of their profession than other citizens and the administrative review boards govern dismissal decisions, not decisions to incarcerate. I intend to take up this point more in the following post.
Lastly, jury nullification might appropriately be rooted in the nature of jurors as moral agents. While courts are unwilling to provide nullification instructions, they acknowledge that jurors may disobey legal instructions when the call of conscience is strong enough. For courts, such action is permissible; it just needs to be exercised sparingly and ideally only in those cases where the moral demands on the conscience are substantially at odds with what judicial instructions on the law demand. While, as mentioned above, administrative separation is not punitive in nature and it does not subject service members to deprivations of their liberty, it is a significant harm—it denies people the opportunity to pursue their chosen career, for many their calling, may cause significant economic distress, and denies a distinct, often deeply rooted, professional identity. For many service members, recommending a separation with its attendant consequences may be fundamentally at odds with their core values because of their views on the transgender ban in general; the disloyalty that it entails to otherwise qualified and competent service members; and perhaps the additional insult of being denied individualized judgment that others facing such proceedings would receive.
That call of conscience, of course, is more complicated for service members than for civilians, and in the next post, I’ll turn to the legal doctrine and specific military concerns raised by administrative board members exercising nullification.
