Month: June 2016

As leaked earlier in the week, today Defense Secretary Ash Carter formally announced that the United States military is ending its blanket ban on transgender people serving in the forces.

As of today, transgender troops will no longer be discharged from the military or denied reenlistment “solely for being transgender individuals.” That use of “solely” as a modifier there is important because it’s an acknowledgement of both the pro and con arguments: There’s nothing inherent about being transgender that should disqualify someone for military service; but the totality of that person’s experience and their ability to adjust to both what’s going on within them and the military’s need for conformity requires analysis.

There are a whole bunch of “next steps” in the Department of Defense’s fact sheet about this transition. In three months, military handbooks will be updated to acknowledge transgender troops, medical “guidance” on transition care will be hammered out, and service members will be able to officially change their gender on their personnel records. More steps deal with the complexities of gender transitions will be rolled out over the next year.

Beyond that, it’s important to note that military does not appear to be buying into any sort of “gender is just a construct” or “gender fluidity” dynamic. Transgender troops will be expected to identify as male or female, just like everybody else. There’s nothing to suggest that there will be no new pronouns, nobody will be able to declare themselves “non-binary,” and nobody will be able to demand to be called “they.” A transgender person will be expected to live and conform with the appearance and guidelines of the gender they’ve become. This doesn’t necessarily mandate reassignment surgery but will require living as the chosen sex permanently.

USA Today notes that as part of the research before implementing these changes, the military did evaluate the likely impact on readiness as well as costs to the military to pay for medical treatment, based calculations of the number of likely transgender troops:

There are between 1,320 and 6,630 transgender troops in the active-duty force of 1.3 million, according to Agnes Schaefer, the lead author of a RAND Corp. study commissioned by the Pentagon on the issue. Of those troops, RAND estimates that between 30 and 140 would seek hormone treatment, and 25 to 130 would seek surgery. The estimated annual price tag: $2.4 million to $8.4 million, per year.

The effect on readiness to fight, or deploy, is anticipated to be small, Schaefer said. Transgender troops would be unavailable to deploy between 8 and 43 man years annually, a measure of military readiness. The military overall has 1.2 million man years. The Army has about 5,300 non-deployable man years.

“The bottom line is that we think it will be minimal,” Schaefer said of the effect on military readiness of lifting the ban.

For some context, America’s annual defense budget is around $600 billion.

A source gave Dominic Holden at BuzzFeed some indications of what some of these new policies might entail for transgender citizens who want to join the military. Much of the policy developments happening right now focus on transgender people already serving. Of note, if his info is accurate, an openly transgender person who wants to join the military may be expected to complete the transition before joining. There’s little foundation to suggest that transgender people will go running to join the military in order to get free treatment or that such behavior would be permitted.

On the other hand, if they did, is that any different than people who join the military for any other economic reason? How is that different from joining the military to pay for college? As long as they’re still expected to conform to military policy and perform up to the same standards as their nontransgender peers, there really shouldn’t be a problem. And if it turns out a transgender military member is emotionally or mentally unfit for service in other ways, that’s still no different from other men and women who end up washing out for being unable to adapt or conform.

• The Department of Defense officially announced today it was ending its blanket ban on transgender people serving openly in the military.
• Iowa’s Supreme Court ruled that ex-offenders convicted of felonies in that state can be permanently stripped of their right to vote.
• Fears of an active shooter situation at Joint Base Andrews in Maryland turned out to be somebody being fooled by an active shooter drill.
• Japan’s Supreme Court has upheld the mass surveillance of Muslims living in the country.
• A federal judge has blocked a law in Indiana that forbid women from seeking abortions on the basis of a fetus’s genetic abnormalities.
• Republicans may allow a House vote on a bill to try to keep suspected terrorists from buying guns, but it will likely offer much more due process than what Democrats want.

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I’ve said before that it’s important to engage with your opponent’s strongest argument (as opposed to the one you find easiest to counter), which is why I was glad to hear from a liberal legal scholar at the Federalist Society last fall.

In the spirit of making life easier for those who don’t already agree with me, I wanted to share a beautifully articulated defense of religious liberty, natural rights, and the idea that just because something is “the law” doesn’t necessarily make it right. (That, by the way, is a fallacy people on both sides of the aisle have been known to succumb to—from conservatives who think immigrants who came to the U.S. illegally should always be treated as criminals to progressives who think Christian-owned pharmacies should be forced to stock the morning-after pill). Without further throat-clearing, I present for your consideration these excellent recent remarks from Becket Fund founder Seamus Hasson:

The Massachusetts Bay colony in the 1650s is the site of our story, and it features the Puritans at the time puzzling about what to do about these nasty Quakers that they had heard tell of. Before there were any Quakers in the Massachusetts Bay colony at all they decided to outlaw them. So they passed a law saying any Quaker that turned up in the colony was to be banished immediately, and if he returned, was to be flogged and then banished again.

Well, the Quakers had a very robust idea of conscience. In fact, it was even more than conscience. They claimed it to be the inner light of God’s presence in themselves and us all. And darned if the inner light didn’t tell the Quakers to come back. So the Quakers, being flogged and sent off, returned.

So in 1657 they passed another law saying that banished Quakers who were flogged and returned, for a first offense would have one of their ears cut off. For a second offense would have their other ears cut off. And for a third offense would have their tongues bored through with a hot iron. And they enforced this. We have the names and dates of people who lost their ears to this law in Massachusetts. But the inner light was a very stubborn thing and told them to return. And so earless, and with holes in their tongues, the Quakers returned to preach against this manifest injustice.

So the Massachusetts Bay colony passed another statute, saying that for a third offense the punishment was death. Now, Mary Dyer was a very free-spirited woman. She returned four times to the colony of Massachusetts Bay to preach against the Puritans there, not counting the two trips she took to New Haven to preach against the Puritans there as well. So on June 1 of 1660 she was solemnly, lawfully hanged on Boston Common for the crime of preaching in Massachusetts.

There’s the story. Here’s the question it poses: Why shouldn’t she die? After all, she had notices of the law. She willingly broke the law. She was duly arrested, properly tried, and properly hanged. What’s wrong with that?
That’s a monstrous question, of course. You can’t kill people for preaching in Massachusetts. But the question is, why can’t you? It wasn’t illegal; it was legally required. It wasn’t unconstitutional; there wasn’t a Constitution yet.

While you’re pondering that, an even briefer story: Vermont in 1870, in its Constitution, provisioned that all office holders had to hold and preach the Protestant religion, thereby excluding Catholics and Jews. There’s the brief story. Here’s the brief question: If the law requires you to be anti-Semitic, may you be? To repeat, this wasn’t illegal. This was legally required. And it wasn’t unconstitutional, because although there was a Constitution, it didn’t apply to the states in 1870. So the question is, if the law requires you to be anti-Semitic, may you be?

And the third story takes place in the 19[9]0s in China, where a 6-year-old boy named Gedhun Choekyi Nyima was arrested, and if he’s still alive is still being held today, for the crime of being thought by others to be the Panchen Lama’s reincarnation. Every time the State Department says to China, “This is an outrage. Release the little boy,” China responds the same way: “You’re interfering in our internal affairs. Get lost.”

Here’s the question: Why aren’t they right? Why isn’t the question of whether you can arrest and imprison a 6-year-old boy for the religious beliefs of others—why isn’t that just a question of Chinese law?

All three of those questions posed are different versions of the same master question: Where does religious liberty come from? If you think that religious liberty comes from the Constitution—not that the Constitution codifies religious liberty, but that it actually comes from the Constitution in the first place—then you must think that Mary Dyer was properly executed, that in 1970 anti-Semitism was OK, and that the Chinese are right. Because in none of those cases was there a Constitution that applied.

To skip ahead, if you don’t think that Mary Dyer was properly executed, and if you think that anti-Semitism is always and everywhere illegal, and if you think the Chinese are wrong, then you must think, along with Madison [and others], that religious liberty has a foundation elsewhere, prior to and higher than the Constitution.

Hasson’s comments were part of an event last week at the American Enterprise Institute called “Catholic thought and human flourishing: Culture and policy.” You can see video of the whole thing here.

Last week I appeared on Fox Business Network’s Stossel to talk about Hillary Clinton’s long, terrible record on free speech. Here is a briefish excerpt from that appearance:

And last night I was on the Fox News program Red Eye w/ Tom Shillue, talking about any number of silly things, but among them (from the 7:30 mark) the awfulness of watching Hillary Clinton pander to a crowd of social media kids who are almost certainly clueless about what an anti-constitutional buzzkill she is about the technology and free expression: