With major defense policy legislation pending before the U.S. House, Democrats have proposed an amendment that would not only reverse President Trump’s transgender military ban, but prohibit discrimination against LGBT service members for the first time under federal law.
The amendment, introduced by Rep. Jackie Speier (D-Calif.), was submitted to the House Rules Committee Tuesday for consideration as part of the fiscal year 2020 defense authorization bill.
Dubbed the “Harry Truman” amendment, the measure is modeled after the executive director Truman signed in 1948 desegregating the military.
The amendment states the military must consider applicants based on gender-neutral occupational standards and military occupational specialty, but “may not include any criteria relating to the race, color, national origin, religion, or sex (including gender identity or sexual orientation) of an individual.”
Further, the amendment states any Defense Department personnel policy for members of the armed forces “shall ensure equality of treatment and opportunity for all persons in the armed forces, without regard to race, color, national origin, religion, and sex (including gender identity and sexual orientation).”
Aaron Belkin, director of the San Francisco-based Palm Center, said in a statement the amendment “recognizes the success of the Truman policy on equal opportunity in the armed forces.”
“History, research and the U.S. military have told us for years that equal treatment in the military enhances readiness and bolsters national security by helping secure the best talent, and ensuring good order and discipline by applying a single standard to all personnel,” Belkin said.
If the amendment were to become law, it would reverse the transgender military ban the Trump administration implemented in April, allowing transgender people to enlist and serve once again similar to the policy at the end of the Obama administration.
Multiple polls have shown upwards of 70 percent of the American public support transgender military service, including a recent Gallup poll showing 71 percent support allowing transgender people to serve openly.
Joining Speier in introducing the amendment are Reps. Joseph Kennedy III (D-Mass.), Anthony Brown (D-Md.) and Susan Davis (D-Calif.). With massive public support and a Democratic majority in the House, the House Rules Committee will likely approve the amendment for floor consideration as part of the defense authorization bill.
The amendment will also likely fare well on the House floor, but when the underlying defense authorization bill heads to the Republican-controlled Senate, where 60 votes are needed to end a legislative filibuster, the measure will face an uphill battle.
In addition to reversing the transgender ban, enacting the amendment would mark the first time U.S. code prohibited discrimination on any basis, not just gender identity. The Civil Rights of Act 1964, which bars discrimination on race, religion, sex and national origin — has an exemption for military service.
When Congress repealed “Don’t Ask, Don’t Tell” in 2010, it left no policy in its place regarding gay people in the military, allowing the military to craft its own policy regarding their service. The Obama administration permitted openly gay people to serve in the military without any guidance under the law.
Currently, in the event service members face discrimination, they have to report to their commanding officer or the military equal opportunity policy, which prohibits harassment, including sexual harassment and “unlawful discrimination on the basis of race, color, national origin, religion, sex (including gender identity), or sexual orientation.” But the policy doesn’t have the force of law, nor does it have any bearing on the Trump administration’s transgender military ban.
(Belkin’s support for the Speier amendment is somewhat of a reversal from his position in 2010 when Congress debated “Don’t Ask, Don’t Tell” repeal. Belkin argued for removing the non-discrimination provision from legislation proposed by then-Sen. Joseph Lieberman of Connecticut,
At the time, Belkin cited the need for compromise to make sure repeal happened, even though he admitted he was taking heat for it from the LGBT community. His views eventually won out.
“The piece of the compromise people have a problem with is that the amendment will not impose a requirement upon the Pentagon to implement nondiscrimination,” Belkin said. “So, in other words, the Pentagon will have statutory legal discretion to implement whatever policy it wants, whether that’s integration or discrimination. We are not afraid of the compromise. It’s not perfect, but pretty darn good.”)
Andy Blevins, a Navy veteran and executive director of the Modern Military Association of America, said in a statement the measure is a “critically important amendment” that would allow transgender people to serve in the military.
“What really matters for military service is whether a person is able, qualified and willing — not who they are or where they come from,” Blevins said. “Passing this measure would send a powerful message of inclusion, strengthen military readiness, and allow the military to recruit the best and the brightest our nation has to offer.”
The Speier amendment isn’t the only amendment pending before the House Rules Committee regarding transgender military service.
Rep. Sheila Jackson Lee (D-Texas) has introduced a separate amendment that would bar the use of funds to implement Trump’s transgender military ban. (The House just last week approved an amendment along these lines as part of separate minibus legislation.)
Brown and Rep. Chris Pappas (D-N.H.) also proposed an amendment that would require the U.S military to report to Congress on the number of transgender individuals who sought and were denied waivers under the transgender ban to accede into the armed forces.
On the anti-LGBT side, Rep. Steve King (R-Iowa) and Rep. Ralph Norman (R-S.C.) introduced an amendment that would ensure no funds are used for “transgender sensitivity training” or to “screen members of the Armed Forces, including reservists, regarding gender reassignment surgery.” The poorly worded second part of the amendment seems to be an attempt to ban transition-related care.
UPDATE: After the publication of this article, Belkin disputed the characterization of his positions as a reversal and said his comments on the Speier amendment weren’t intended to indicate support.
“The spirit of it was the strength of the military,” Belkin said. “I just want to be clear that it’s not about advocacy, but I still take your point about saying that one proposal is a good idea and the other wasn’t.”
The difference, Belkin said, is “political context” because the political situations were different in 2010 with “Don’t Ask, Don’t Tell” repeal than in 2019 with the transgender military ban.
With respect to “Don’t Ask, Don’t Tell” in 2010, Belkin counted two things at the time he said that led him to back dropping non-discrimination protections to reach a compromise.
“First of all, we didn’t have the votes in the Senate to get a bill through Congress that would include equal opportunity protections on the basis of sexual orientation. And so, the issue was we could get a bill through that would authorize repeal and nothing else, or we could get nothing,” Belkin said.
Additionally, Belkin said he assessed in 2010 adding equal opportunity protections to the statute “would be helpful, but it wasn’t necessary because the military could be trusted in all likelihood to put in place regulations that would treat gay and lesbian and bisexual troops just like everybody else, and that is what happened.”
With respect to Speier amendment in 2019, Belkin said his views are based on a situation where “the military itself has regulations that require the treatment of transgender people on an equal basis with everybody else.”
“The president has stepped in and forced to put in place other regulations that are inconsistent with the military equal opportunity policy, which is the transgender ban,” Belkin said. “And as a result of that ban, the military is ignoring its own equal opportunity regulations.”
Belkin also said his current views are based on what he sees before Congress in a political context because “there may in fact be the votes in the Senate for a provision protecting transgender troops precisely by framing in terms of what President Truman did, on the basis of race and religion because there’s widespread support for the Truman executive order.”