Where trans­gen­der folk are gen­er­ally ac­cepted

Dis­patches from the south

The Victoria Standard - - Commentary - HE­LEN DELFELD

One of the stranger things about the United States is that the U.S. Army has of­ten been the lead­ing edge of so­cial change. Here are some ex­am­ples:

While black peo­ple served in the very ear­li­est armies in the States, and have served in ev­ery army since, they were fre­quently treated like sec­ond-class cit­i­zens – just as they were in the rest of so­ci­ety. That all changed in 1948 when Pres­i­dent Harry Tru­man is­sued an ex­ec­u­tive or­der re­quir­ing im­me­di­ate and to­tal in­te­gra­tion of the armed forces. The armed forces be­came one of the few places that black folks could find a good ca­reer, fair ad­vance­ment, and for the first time, be free from of­fi­cial dis­crim­i­na­tion.

An­other time, Gen­eral Eisen­hower wanted to “fer­ret out” all the les­bians in the Women’s Army Corps in 1947. When he is­sued the or­der, his dec­o­rated driver, John­nie Phelps, said, “If the Gen­eral pleases, sir, I'll be happy to do that, but the first name on the list will be mine.” His secretary piped up, "If the Gen­eral pleases, sir, my name will be first and hers will be sec­ond." The witch hunt pro­ceeded no fur­ther.

In 1967, the rules changed to re­quire Army women to be pro­moted just the same as men, years be­fore civil­ian women got sim­i­lar pro­tec­tions.

So it’s not sur­pris­ing that the Army is mov­ing ahead of the civil­ian world on treat­ing trans­gen­der peo­ple with dig­nity as well. Mostly, it’s sim­ply step­ping out ahead of the in­evitable, wisely get­ting ex­tra credit for that which it would have to do in a decade or two by court or­der.

We have strong pro­tec­tions against sex dis­crim­i­na­tion in the law, and courts are rapidly find­ing a con­sen­sus that those pro­tec­tions also cover same-sex at­trac­tion and peo­ple who suf­fer from gen­der dys­pho­ria; feel­ing like one is as­signed to the wrong sex. Fol­low­ing this same le­gal path, Pres­i­dent Obama’s po­si­tion evolved and he of­fi­cially ended dis­crim­i­na­tion against trans­folk in the mil­i­tary in 2016.

Pres­i­dent Trump, on the other hand, cam­paigned on gay rights and then, upon tak­ing of­fice, quickly ex­ec­u­tive-tweeted an or­der ban­ning all trans­folk from mil­i­tary ser­vice. Such seem­ingly ran­dom pol­icy re­ver­sals have since be­come a hall­mark of his ad­min­is­tra­tion, although they are usu­ally well-timed to – just co­in­ci­den­tally – im­me­di­ately fol­low a bad news day.

And in a very strange turn of events, the gen­er­als to­tally ig­nored him.

Which is en­tirely un­con­sti­tu­tional. Prob­a­bly. On the one hand, soldiers have an obli­ga­tion to dis­obey il­le­gal or­ders. On the other, it’s hor­ri­fy­ing to have mil­i­tary gen­er­als ig­nor­ing their civil­ian com­man­der-in-chief with­out a clear and well-estab­lished con­sen­sus from the courts, which is only be­gin­ning to come to­gether.

This con­sti­tu­tional cri­sis seemed likely to lead to Trump fir­ing a bunch of gen­er­als, ex­cept some­how no one got fired. It’s as if the Pres­i­dent of the United States was play­ing games with peo­ples’ lives, but didn’t much care about the out­come. The fight was the thing.

Seven, count 'em, seven, courts found the ban il­le­gal within a few weeks.

Thing is, changes in gov­ern­ment pol­icy that have the po­ten­tial to hurt peo­ple have to be ac­com­pa­nied by a con­vinc­ing rea­son why the change is nec­es­sary. So a year later, Trump tried again, this time hav­ing learned a little bit about how the gov­ern­ment ac­tu­ally runs. The or­der looked more like a nor­mal or­der, rather than a rage-tweet.

Again, Trump’s ef­fort was struck down by sev­eral courts. This time, no court was strik­ing down the or­der on pro­ce­dural grounds. All the find­ings were about un­nec­es­sary dis­crim­i­na­tion.

That word, “un­nec­es­sary,” is im­por­tant. It is le­gal in the U.S. to dis­crim­i­nate against, say, women or black peo­ple or trans­folk if there is a good rea­son. But the bur­den lies on the gov­ern­ment to prove there is good rea­son. The prob­lem is that there is rarely a good one.

The Trump ad­min­is­tra­tion has fallen so far short of show­ing there was a good rea­son that they haven’t won a sin­gle vic­tory in court, not even a tie, and boy, did they try. Turns out all the gen­der ex­perts, all the le­gal ex­perts, and all the gen­er­als agree. Trans­folks are folks just like us.

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