The End of Inclusion?
How DEI and Transgender Bans Could Rewrite Military and Civil Rights Law
As the pendulum of American military policy swings once again, President Trump’s anticipated executive orders targeting DEI programs and banning transgender individuals from service are poised to ignite a profound legal and societal reckoning.
I’m reminded of a Italian proverb made famous by Oscar Wilde, "Quando dio vuole castigarci, ci manda quello che desideriamo." (When God wants to punish us, he gives us what we desire.) I can’t help but wonder if we asked for this? (Someone perhaps did ask for this?)
Reports suggest these new orders will eliminate Diversity, Equity, and Inclusion (DEI) initiatives within the DoD and reinstate a ban on transgender individuals serving in or being recruited into the U.S. military.
These actions, if taken, represent a significant shift in military policy, with far-reaching implications for recruitment, retention, and operational readiness. That’s bad enough, but the damage isn’t going to stop there (unfortunately.)
I know we throw these ideas around, but I don’t think most people really understand why we have DEI, what’s really going on, and what it means. I worked in the Department of Defense for five years. I lived defense policy for a good chunk of my political life. I’m watching this with both skepticism and horror. I realize most are either greeting it with “meh” or perhaps even cheering it on, thinking that somehow in the military, people are dancing around in “tutus” or that unqualified soldiers are being inducted.
Neither is the case.
To help people “get it,” I explore the legal basis for military recruitment policies, the role of DEI programs, their impact on the military’s effectiveness, and how the current Supreme Court might evaluate these potential executive orders.
Spoiler alert - the EOs are likely to be upheld.
Second spoiler alert - I think they’re about more than just the military.
The Military’s Authority to Discriminate in Recruitment
The U.S. military’s ability to discriminate in recruitment and enlistment is deeply rooted in its unique mission and operational requirements. This authority, while distinct from civilian employers bound by anti-discrimination laws, has evolved alongside significant legislative and societal changes.
Historical Context and Legislative Foundations
The military’s authority to set discriminatory enlistment standards dates back to the early 20th century. For much of U.S. history, military service was restricted by race, gender, and even socioeconomic status. During World War II, for example, the armed forces were racially segregated, and women were largely confined to non-combat roles. These policies were justified to maintain unit cohesion and operational effectiveness—concepts still invoked today.
The landmark shift toward inclusivity began with Executive Order 9981, signed by President Harry Truman in 1948, which abolished racial segregation in the military. This move was met with significant resistance but laid the foundation for future policies emphasizing equality and inclusion.
In the 1960s and 70s, as the civil rights movement gained momentum, Congress passed key anti-discrimination laws such as the Civil Rights Act of 1964 and Title VII, prohibiting employment discrimination based on race, color, religion, sex, or national origin. While the military was not fully bound by these statutes, their principles began to influence military policies.
Modern Standards and Discrimination in Practice
Today, the military maintains specific recruitment standards designed to ensure readiness and effectiveness. These include:
Age Limits: Minimum and maximum age limits are enforced to align with the physical and mental demands of service. Younger recruits are seen as more adaptable and capable of enduring rigorous training.
Physical Fitness Standards: Recruits must meet strict requirements for height, weight, vision, hearing, and overall physical health. These standards ensure deployability and minimize risks to both the individual and their unit.
Medical and Psychological Requirements: Conditions like asthma, diabetes, or mental health disorders can disqualify potential recruits, as they may impact long-term deployability or require accommodations incompatible with military service.
Citizenship and Residency: Only U.S. citizens and lawful permanent residents are eligible to enlist, a standard rooted in national security and loyalty concerns.
Criminal History and Moral Character: The military conducts background checks to ensure that recruits possess the discipline and trustworthiness necessary for service. Certain criminal records or behaviors may disqualify individuals.
Judicial Deference to Military Authority
Courts have long granted judicial deference to military decisions, recognizing the unique challenges and requirements of national defense. This principle, established in cases like Rostker v. Goldberg (1981)—which upheld male-only draft registration—has allowed the military to maintain discriminatory policies when deemed necessary for readiness or cohesion. However, such deference is not unlimited and must still align with constitutional protections.
Understanding DEI Programs in the DoD
The evolution of Diversity, Equity, and Inclusion (DEI) programs within the Department of Defense (DoD) reflects broader societal shifts and changing priorities in the U.S. military. These initiatives have grown from efforts to address historical inequities to strategic tools aimed at enhancing readiness and effectiveness.
The Origins and Evolution of DEI in the Military
DEI initiatives in the DoD trace their roots to the civil rights movement of the mid-20th century. Following the desegregation of the military under Executive Order 9981 in 1948, the DoD began implementing policies to promote equal opportunity. These early efforts focused on eliminating overt racial discrimination, but the scope of inclusion expanded over time to address gender, sexual orientation, and later, gender identity.
The 1990s marked a significant turning point with the establishment of formal equal opportunity offices and policies aimed at addressing systemic inequities within the ranks. These programs evolved further during the Obama administration, which prioritized inclusivity as a matter of military readiness. In 2011, the repeal of "Don’t Ask, Don’t Tell" allowed gay and lesbian service members to serve openly, signaling a shift toward greater acceptance of LGBTQ+ individuals in the military.
The Role of DEI During the Trump and Biden Administrations
Under President Trump, DEI initiatives faced significant challenges. His administration rolled back policies supporting transgender service members and scrutinized DEI training programs, often labeling them as divisive. Executive orders limited the scope of diversity training, with a focus on removing concepts seen as promoting "reverse discrimination."
The Biden administration reversed many of these policies, reinstating transgender service and renewing support for DEI programs. Biden’s executive orders emphasized the role of diversity in strengthening national security and included measures to promote accountability and expand outreach to underrepresented groups. These efforts aligned with broader federal DEI initiatives, reaffirming the DoD’s commitment to fostering an inclusive environment.
Why DEI Matters
DEI programs are not merely about fairness or representation; they are strategic imperatives for a modern military. By leveraging the diverse backgrounds, skills, and perspectives of service members, the military gains a competitive edge in addressing complex challenges. DEI initiatives:
Enhance Recruitment: By reaching underrepresented communities, DEI programs broaden the pool of potential recruits, ensuring the military can draw from the full spectrum of American talent.
Foster Retention: Inclusive policies create a culture where all service members feel valued, improving morale and reducing attrition.
Improve Mission Effectiveness: Diverse teams bring varied perspectives and experiences, driving innovation and adaptability in both combat and support roles.
Strengthen Global Engagement: A diverse military better reflects the global environments in which the U.S. operates, improving cultural competency and fostering trust with local populations and allies.
Challenges and the Path Forward
Despite their benefits, DEI initiatives have been politicized, with critics arguing they distract from the military’s primary mission. Proponents counter that inclusivity is essential to maintaining a force capable of meeting modern challenges. The ongoing debate underscores the need for balanced policies that align with both operational priorities and the principles of equality.
As the political pendulum swings back under the anticipated Trump executive orders, the future of DEI in the DoD remains uncertain. Its history, however, demonstrates that diversity and inclusion are not merely social goals but critical components of a strong and effective military.
Diversity, Equity, and Inclusion (DEI) initiatives are integral to the DoD’s efforts to build a military that reflects the nation’s diversity and fosters an inclusive environment. These programs aim to:
Recruit Diverse Talent: Outreach efforts target underrepresented communities, including racial minorities, women, and LGBTQ+ individuals.
Promote Equity: Policies ensure fair treatment and opportunities, addressing barriers that disproportionately impact certain groups.
Foster Inclusion: Training and mentorship programs cultivate a culture where all service members feel valued and can contribute fully.
Examples of DEI programs include partnerships with Historically Black Colleges and Universities (HBCUs), targeted recruitment initiatives, and leadership development programs for underrepresented groups.
How DEI Strengthens the Military
DEI programs are not just about fairness—they are strategic assets that enhance the military’s effectiveness. Here’s how:
Broader Talent Pool: By reaching diverse communities, DEI initiatives expand the pool of qualified recruits, crucial at a time when the military faces significant recruitment challenges. For example, outreach programs targeting women, minorities, and LGBTQ+ individuals help tap into demographics that may have historically felt excluded from military service. Partnerships with Historically Black Colleges and Universities (HBCUs) and Hispanic-Serving Institutions (HSIs) have helped create pipelines for talented recruits from underrepresented groups.
Improved Problem-Solving: Research consistently shows that diverse teams outperform homogeneous groups in solving complex problems. This is particularly relevant in military contexts where creative thinking and adaptability can mean the difference between success and failure. For instance, during joint operations involving multiple branches or coalition forces, diverse perspectives can enhance decision-making by accounting for a wider range of cultural and strategic considerations.
Global Engagement: A diverse force enhances cultural competency, which is critical for engaging with allies, local populations, and adversaries in global operations. For example, service members from different linguistic or cultural backgrounds can serve as interpreters, cultural liaisons, or advisors in conflict zones, helping to build trust and improve mission outcomes. The military’s recognition of the importance of cultural expertise has led to programs like the Foreign Area Officer program, which benefits from diverse talent.
Retention and Morale: Inclusive policies create a culture where all service members feel valued, reducing attrition and enhancing unit cohesion. For example, mentorship programs designed to support underrepresented groups, such as women in leadership or LGBTQ+ service members, help foster a sense of belonging and professional growth. Studies have shown that inclusive environments are directly linked to higher job satisfaction and lower turnover rates.
Innovation and Technological Superiority: In an era of rapid technological advancement, the military’s ability to innovate depends on attracting and retaining top talent from all sectors of society. DEI initiatives that focus on equity and opportunity enable the military to recruit individuals with unique skills in fields like cybersecurity, artificial intelligence, and engineering—areas where diverse experiences and perspectives can drive innovation.
Eliminating DEI programs risks undoing these benefits. The military could face numerous negative consequences, including diminished recruitment efforts, as underrepresented groups may perceive the military as an unwelcoming environment. This perception could shrink an already limited recruitment pool at a time when the military struggles to meet its enlistment goals. Retention rates might also suffer, with talented service members leaving due to a lack of support, inclusivity, or career advancement opportunities. The overall morale and cohesion within units could decline if diversity and inclusion are no longer prioritized, leading to increased attrition and potentially disrupting mission readiness.
Additionally, without DEI programs, the military may lose the critical cultural and linguistic skills provided by a diverse force, which are essential for engaging effectively in global operations. For example, service members from varied backgrounds often act as cultural liaisons or interpreters in deployments, enhancing relationships with allies and local populations. Removing DEI initiatives jeopardizes these strategic advantages, potentially weakening the military's ability to operate effectively in multicultural and multinational settings. As the military becomes increasingly reliant on specialized skills and international engagement, the strategic advantages of a diverse and inclusive force cannot be overstated.
The Impact of Transgender Service Members on Military Readiness
The inclusion of transgender individuals in the military has been extensively studied, and the findings consistently demonstrate that their service has a minimal impact on readiness, costs, or unit cohesion. Nevertheless, the topic has been a focal point of political and policy debates, with arguments for and against their inclusion often rooted in misconceptions rather than empirical evidence.
Healthcare Costs and Deployability
One of the most frequently cited concerns about transgender service members is the cost of medical care, particularly related to gender-affirming treatments. However, these costs are negligible within the scope of the military’s overall healthcare budget:
The RAND Corporation’s 2016 study found that medical care for transgender personnel, including hormone therapy and surgeries, would account for less than 0.1% of the DoD’s total annual healthcare budget. For context, the military spends far more on common conditions like musculoskeletal injuries or mental health care for non-transgender personnel.
Deployability Concerns: Critics have argued that transgender individuals undergoing gender-affirming care might be unavailable for duty due to medical procedures or recovery times. However, data from 2016 to 2019 revealed that the vast majority of transgender service members maintained deployability standards comparable to their peers. Procedures like surgeries typically require short recovery periods and are planned around operational needs to minimize disruption.
Unit Cohesion and Morale
Another major point of contention has been the perceived impact of transgender service on unit cohesion and morale. Historically, similar arguments were used to justify policies excluding racial minorities, women, and gay and lesbian individuals from service. Research and real-world experience, however, suggest otherwise:
Studies of allied militaries that allow transgender individuals to serve openly, such as those in the UK, Canada, and Israel, have found no evidence that their inclusion negatively impacts unit cohesion or morale. On the contrary, inclusive policies can strengthen trust and respect within units by promoting fairness and mutual understanding.
Within the U.S. military, transgender service members have served in various capacities, including combat roles, without documented issues undermining unit performance. Anecdotal accounts from commanders and fellow service members highlight the professionalism and dedication of transgender personnel.
Recruitment and Retention
Excluding transgender individuals from service could further exacerbate existing recruitment and retention challenges:
The U.S. military already faces significant difficulties meeting recruitment goals, with only 23% of Americans aged 17-24 eligible to serve due to factors like obesity, education, or criminal records. Barring transgender individuals would unnecessarily shrink the pool of eligible recruits.
Retention rates could also suffer if service members perceive the military as discriminatory or unwelcoming. Policies that exclude transgender personnel may contribute to a broader culture of exclusion, discouraging talented individuals from enlisting or re-enlisting.
Strategic and Operational Implications
Transgender service members bring unique skills and perspectives that enhance the military’s operational effectiveness. For instance:
Cultural Competency: Many transgender service members have firsthand experience navigating societal biases, which can make them particularly adept at building relationships and understanding complex social dynamics in multicultural environments.
Specialized Expertise: Transgender personnel, like all service members, contribute skills in critical areas such as cybersecurity, intelligence, and engineering. Excluding them would mean losing access to qualified individuals who could fill high-demand roles.
Conclusion
The evidence overwhelmingly shows that transgender individuals can serve effectively without compromising military readiness, cohesion, or cost efficiency. Policies that exclude them are not only unsupported by data but risk undermining recruitment, retention, and the overall strength of the armed forces. As the military evolves to meet the challenges of modern warfare, inclusivity remains a strategic necessity.
The inclusion of transgender individuals in the military has been studied extensively, with research consistently showing a negligible impact on readiness and cohesion. Key findings include:
RAND Corporation Study (2016): This study concluded that allowing transgender individuals to serve openly would have minimal impact on readiness or healthcare costs. The additional medical expenses associated with transgender service members were estimated to constitute less than 0.1% of the military’s annual healthcare budget.
Deployability: Between 2016 and 2019, the military reported minimal instances where transgender-related medical care impacted deployability. The vast majority of transgender service members met the same standards as their peers.
Unit Cohesion: Studies, including those examining the experiences of allied militaries (e.g., the UK, Canada, and Israel), found no evidence that transgender service undermines unit cohesion or morale. In fact, inclusive policies often strengthen trust and respect within units.
Claims that transgender individuals impose undue burdens on the military are primarily unsupported by empirical evidence. Instead, policies that exclude qualified individuals based on gender identity risk undermining readiness by reducing the available talent pool and creating barriers to recruitment and retention.
Likely Supreme Court Analysis of the Proposed EOs
Undoubtedly, when President Trump issues the executive orders, the Secretary of Defense, the military departments, and the services will be compelled to execute his directive. They have no choice but to, even if they disagree with it. Transgender service members will likely be separated from service, and going forward, transgender applicants will be ineligible to serve. Those who previously benefited from DEI programs will no longer be able to. The result is inevitable: civil rights litigation. The end result of that litigation is also inevitable—cases before the Supreme Court.
Framework and Relevant Case History
To understand how the Supreme Court might approach these issues, it is essential to examine the framework of judicial deference and prior cases that have shaped military personnel policy and anti-discrimination law:
Rostker v. Goldberg, 453 U.S. 57 (1981): The Court upheld male-only draft registration, emphasizing Congress’s authority over military policy and judicial deference to the executive and legislative branches when it comes to national defense.
Bostock v. Clayton County, 590 U.S. ___ (2020): The Court held that discrimination based on sexual orientation or gender identity constitutes sex discrimination under Title VII. While the ruling pertained to civilian employment, it established a foundation for arguing that transgender discrimination violates equal protection principles.
Frontiero v. Richardson, 411 U.S. 677 (1973): The Court struck down discriminatory policies based on sex within the military, ruling that such classifications warrant heightened scrutiny.
Trump v. Hawaii, 585 U.S. ___ (2018): The Court upheld the travel ban, demonstrating a willingness to defer to the executive on national security matters, even when policies were alleged to be discriminatory.
Grutter v. Bollinger, 539 U.S. 306 (2003): While not a military case, the Court’s ruling on affirmative action upheld the use of diversity as a compelling government interest, offering parallels for the importance of DEI in fostering a cohesive and effective force.
Likely Questions Before the Court
If the litigation reaches the Supreme Court, the Justices are likely to confront the following questions:
Does the executive branch have the authority to end DEI programs and ban transgender service members based on claims of military necessity?
Do these policies violate the Equal Protection Clause of the Fifth Amendment?
Does the precedent set in Bostock v. Clayton County extend to military contexts?
To what extent should the Court defer to military leadership and the executive branch on personnel decisions?
Is there evidence to support claims that DEI programs or transgender individuals harm military readiness?
Ending DEI Programs
In a 6-3 decision, I would expect the Supreme Court to conclude that the executive order ending DEI programs is constitutionally valid. The majority would likely rely on the constitutional framework that grants significant deference to the executive branch in matters of military policy and personnel management.
The Court may opine that the executive order is a legitimate exercise of the president’s authority under Article II of the Constitution as commander-in-chief. Additionally, the opinion would likely emphasize that DEI initiatives are discretionary policies, not constitutionally mandated programs, and that the removal of such programs does not violate equal protection principles.
The majority might argue that the president has the prerogative to prioritize operational needs over social goals and that these changes are rationally related to improving the efficiency of the armed forces. By framing DEI programs as non-essential to readiness, the Court would likely find that the executive order meets the requirements of constitutional permissibility, sidestepping broader questions about the benefits or necessity of diversity and inclusion.
Banning Transgender Individuals from Service
In a 6-3 decision, I would anticipate the Court would likely uphold the executive order banning transgender individuals from military service. The majority opinion would probably focus on the principle of judicial deference to the executive branch in military affairs, as established in cases like Rostker v. Goldberg.
The opinion would likely assert that the exclusion of transgender individuals is a policy decision rooted in military readiness and deployability concerns, framing it as a rational and permissible exercise of executive authority. The majority may argue that the Constitution does not guarantee the right to military service and that the president’s judgment on what constitutes an effective fighting force is entitled to deference.
Further, the Court might seek to distinguish this decision from Bostock v. Clayton County, arguing that Title VII protections for civilian employment do not automatically extend to military contexts due to the unique operational needs of the armed forces. By relying on a rational basis review rather than heightened scrutiny, the majority would conclude that the policy does not violate equal protection principles, despite its impact on transgender individuals.
A Path of Ideological Reasoning
The likely 6-3 split would highlight the ideological divisions on the Court. On one side, the conservative majority would focus on executive authority and judicial deference, framing their rulings as grounded in constitutional permissibility. However, their reasoning would likely reflect an ideological preference for limiting civil rights protections in favor of executive discretion.
As Court would likely uphold an executive order eliminating DEI programs by relying on the principle of deference to the executive branch. Historically, courts have avoided intervening in military policy unless there is a clear violation of constitutional rights. The Justices would like argue:
Justice Alito and Justice Thomas would likely emphasize that DEI programs are not constitutionally mandated and that their removal aligns with a merit-based approach to personnel decisions.
Justice Barrett might support the argument that DEI initiatives go beyond the government’s core constitutional obligations, framing them as discretionary rather than essential.
Chief Justice Roberts and Justice Gorsuch could distinguish DEI from broader equal protection concerns, arguing that the executive branch has the prerogative to focus on operational priorities without judicial interference.
The Court’s analysis of a transgender ban would hinge on two key considerations: judicial deference to military leadership and the scope of Bostock v. Clayton County’s application. The majority would likely uphold the ban, albeit with varying justifications:
Justice Alito, Justice Thomas, and Justice Barrett might argue that military readiness and deployability concerns justify the exclusion of transgender individuals. They could frame this as a rational basis decision, sidestepping the need for heightened scrutiny.
Justice Gorsuch and Chief Justice Roberts may attempt to narrow Bostock, arguing that it applies only to civilian employment and does not extend to military contexts, where unique operational demands exist.
Justice Kavanaugh might follow a similar line, emphasizing judicial restraint and the importance of deferring to the executive on national security issues.
On the other side, Justices Sotomayor, Kagan, and Jackson (Ketanji Brown Jackson) would vehemently dissent, arguing that the executive orders violate the Equal Protection Clause of the Fifth Amendment and established civil rights protections. Drawing from precedent and the principles of equality, they might frame their arguments as follows:
Justice Sotomayor might emphasize the broader societal implications of the decision, arguing that the Court’s deference to the executive in this instance perpetuates discrimination without clear evidence that these policies are necessary for military readiness. She would likely critique the majority for failing to apply heightened scrutiny to policies that clearly discriminate on the basis of sex and gender identity, referencing Frontiero v. Richardson and Bostock v. Clayton County as precedents that should compel the Court to strike down the orders.
Justice Kagan could focus on the lack of evidence supporting claims that transgender individuals harm readiness or that DEI programs undermine cohesion. She might highlight the RAND Corporation’s 2016 study and data from allied militaries as compelling evidence that inclusion does not negatively impact effectiveness. Kagan would likely argue that the majority is abandoning reasoned analysis in favor of ideological justifications, undermining the judiciary’s role as a check on executive overreach.
Justice Jackson would bring a rigorous historical perspective, pointing to the evolution of civil rights law and the military’s progress toward inclusion. She might highlight the historical parallels between arguments used to exclude racial minorities, women, and LGBTQ+ individuals, framing the executive orders as a regression that contravenes the Constitution’s promise of equal protection. Jackson would also likely warn of the dangerous precedent set by allowing the executive branch to sidestep established civil rights protections under the guise of military necessity.
Together, the dissenting Justices would likely argue that the majority’s decision rests on a selective reading of precedent and an undue deference to the executive branch that ignores the Constitution’s guarantee of equal protection under the law. They could further caution that this ruling risks unraveling decades of civil rights progress, weakening protections not only for transgender individuals and minority groups in the military but also for broader anti-discrimination efforts across society.
The Civil Rights Ripple Effect
While the Court’s decisions will likely be framed as legal interpretations, the outcomes will almost certainly reflect ideological divides. The conservative majority has shown a willingness to overturn precedent or reinterpret existing rulings to align with broader ideological goals. This creates a potential ripple effect across civil rights law, as narrowing the application of Bostock or undermining DEI principles could weaken protections in other areas.
Consequentially, the Court’s decisions on these cases could significantly reshape the trajectory of civil rights law. The Justices risk creating a precedent that erodes decades of civil rights progress (and precedent) by prioritizing executive authority and narrowly construing protections under the Equal Protection Clause. This could lead to further polarization and a re-litigation of issues previously thought to be settled, creating instability in civil rights jurisprudence and uncertainty for marginalized communities. I wonder if this is not the outcome the President’s advisors seek. Military recruiting may seem like an unlikely wedge to crack open civil rights, but it could prove to be a rather effective one if these cases were to be decided “in the right way.”
Conclusion
President Trump’s proposed executive orders to end DEI programs and ban transgender individuals from military service would undoubtedly face legal challenges, culminating in a Supreme Court decision. While the Court’s conservative majority is likely to uphold these policies, their reasoning would reflect a broader ideological agenda rather than a strict adherence to precedent. The resulting rulings could have far-reaching implications for civil rights law, military readiness, and the balance of power between the judiciary and executive branch. As these debates unfold, the stakes for equality and inclusivity in America’s armed forces—and beyond—could not be higher.
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