How the Pentagon Made Transgender Rights Disappear

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Cross posted from: Just Security

Disclaimer: The views expressed in this article are those of the author’s and do not reflect the views of the United States Military Academy, the United States Army, or the Department of Defense.

A transgender woman serving in the military was permitted by her command to use the berthing, bathrooms, and showers reserved for women. However, some cisgender women in her unit objected and filed an equal opportunity complaint charging that the presence of the transwoman in the shower violated their privacy rights. Subsequently, the transwoman filed an equal opportunity complaint alleging that her command was not supportive of her rights.

This true story would pose a thorny leadership challenge for any military commander, even those supportive of transgender service members. But recently the Pentagon has argued that this story illustrates more than a mere leadership challenge in a modern, inclusive military. Instead, it is taken to show why transgender personnel should not be allowed to serve openly in the military at all. By making false assumptions about sex and gender, the Pentagon has simply rejected transgender persons rights to privacy and dignity altogether.

Reversing a push to allow transgender personnel to serve openly, the Pentagon announced last month that it will implement new limits on transgender military service. The new rules would prohibit anyone from serving who requires or has undergone gender transition from the gender associated with their biological sex.

While the Pentagon asserts that the new policy is not a ban on transgender personnel, this claim is misleading. It is true that the new policy allows transgender persons to serve. But it only allows those who do not seek to express their authentic gender identity; it bans transgender persons from living as their preferred gender while in uniform. In this sense, the policy does not ban transgender people simply. But it does ban transgender people from serving as transgender people. In all relevant ways, that is a transgender ban.

The new policy is based on a DoD study completed in February 2018 titled, “Report and Recommendations on Military Service by Transgender Persons.” This report offers several arguments in favor of restrictions on transgender personnel. The report has many flaws, but one central argument is particularly stunning.

According to the report, the prohibition of persons serving in a gender identity other than that associated with their biological sex is not a policy that treats gender identity as a relevant consideration for personnel policy. The ban is said to be based on entirely gender-neutral considerations. In fact, the report argues, the policy of permitting transgender persons to serve in their preferred gender deviates from otherwise gender-neutral policy and allows for the special consideration of gender identity in personnel policy for only transgender persons. In this sense, the report holds that permitting transgender persons to serve openly is a form of gender bias; it creates special gender-based considerations only for transgender persons. The policy that requires all personnel to adhere to standards for their biological sex is the truly gender-blind and, therefore, fair policy.

How do they arrive at this head spinning conclusion?

While the Armed Forces have standards for personnel that discriminate between men and women—such as requirements of separate berthing, bathroom, and shower facilities; different standards for assessing physical health and fitness; and distinct standards of grooming and uniform—the report holds that these distinctions are not based on gender. Rather, they are entirely based on objective biological differences between the sexes.

As the report explains, “Where biological differences between males and females are relevant…military standards do differentiate between them.” This is supposed to explain the distinctions the military draws between men and women, including the expectations of privacy and respect for each group. “For example,” the report continues, “anatomical differences between males and females, and the reasonable expectations of privacy that flow from those differences, at least partly account for the laws and regulations that require separate berthing, bathroom, and shower facilities…”

Because these standards are based on biological sex, the report holds, they are objective and natural standards that apply uniformly to all service members. “Standards designed for biological males logically apply to biological males, not biological females, and vice versa.”

According to the report, the sex-based standards are important precisely because they ground the standards of privacy and respect on the objective and universal features of biological sex, not the fluid and relative norms of gender. For example, if we abandon the sex-based standards for berthing, bathroom, and shower facilities we will violate the rights of privacy and the dignity of men and women. As the reports asserts, “…by allowing a biological male who retains male anatomy to use female berthing, bathroom, and shower facilities, it undermines the reasonable expectations of privacy and dignity of female Service members.”

Following this rationale, the problem with allowing transgender personnel to serve openly is that it requires taking a person’s gender identity into account in deciding what standards to apply to them. “Gender identity alone, however, is irrelevant to standards that are designed on the basis of biological differences.” Moreover, because the standards that exist are sex-based, not gender-based, in allowing transgender service members we would be permitting gender identity to determine standards only for transgender service members. Everyone else would have to abide by the natural, objective standards. This is unfair, the report concludes.

This argument is downright chilling. To see this, recall the conflict over privacy in the shower between the trans and the cisgender women. While the report’s analysis legitimates the cisgender women’s rights to privacy and respect, it utterly rejects the transwoman’s rights. According to the report, only cisgender persons have rights to privacy and respect; transgender persons do not merit consideration as gender-specific persons at all. What appeared to be a complex leadership challenge over competing claims to privacy is rendered by the report as a simple problem of transgender persons being given rights that they do not have. According to the report, the appropriate solution to the conflict is simple: stop thinking that transgender people have rights like cisgender people do. Amazingly, the report attempts to accomplish this blanket refutation of transgender standing while asserting absolute gender neutrality.

But it doesn’t take long to perceive what has gone wrong here. The DoD’s report is an excellent case study in the difficulty otherwise intelligent people can have seeing the profound influence of gender in their lives and thought. It is easy to legitimate our own sense of what is right and appropriate by proclaiming it the natural, objective standard, especially when that sense expresses the dominant cultural norms. The report falls into the trap of asserting it has a natural, gender-neutral standard that is in fact laden with assumptions of a brutal cisgender hegemony.

Consider the view of privacy and dignity the report asserts: separating males and females in berthing, bathrooms, and showers respects their privacy and dignity as men and women. This might be true. But what is strange is the assumption that these moral standards are not based on gender but are based on objective, natural differences between the sexes.

The report states that reasonable expectations of privacy between men and women “flow from” the anatomical differences between males and females. But this is just false. The truth is that there is nothing anatomical about a woman or a man’s right to privacy. And it isn’t biology that tells us what constitutes degradation of a person as a man or a woman. In fact, what gives cisgender men and women rights as males and females are their respective gender identities. These identities do not naturally “flow from” anatomical realities. Rather, they are constructed socially and psychologically around anatomical realities. The cisgender rights to privacy and dignity that the DoD is asserting rely on this social-psychological construction.

So, it is just false to say that the DoD’s supposedly sex-based standards are gender neutral. They are in fact profoundly gendered. The problem with the gendered reality the report is assuming is not that it has gender in it. Rather, it is that it is only a cisgender reality. According to the report, only those whose gender identity aligns with their biological sex have reasonable expectations of privacy and can have their dignity as a man or woman violated. In this gendered reality, transgender persons don’t count.

Ultimately, the truth about the DoD’s policy is precisely the reverse of how the report describes it: the ban on transgender military service allows gender identity to determine standards only for cisgender persons while it requires only biological sex to determine standards for transgendered persons. This is why the DoD’s new policy is deeply harmful. You cannot make transgender rights disappear by merely proclaiming cisgender norms natural and transgender persons unnatural. In fact, the attempt to do so is itself an instance of the oppression transgender people continue to endure