Transgender Service in the United States Armed Forces: A Policy Proposal for Permanent Change
Jones, Michael E.
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The United States armed forces do not permit new accessions to be transgender. The current policy is administrative in nature, and is not rooted in statutory authority. Permanent change cannot occur in the absence of Article III judicial authority. The force of Supreme Court case law would permit the entry of transgender personnel into the armed forces, and would ensure a sustainable legal path to transgender service. Such a path requires an extended commitment of time and resources by a litigant. Moreover, the likelihood of a case being heard by the Supreme Court is exceedingly low, and there is no guarantee of success even if writ of certiorari is granted. Additionally, an Article III solution to the problem requires patience by members of Congress. In the current political climate, there is little chance that any American politician would commit to a long-term solution rather than risk an administrative solution that is immediate. Modifying the administrative policies to allow for transgender service is the most convenient and effective solution to overcome the problem even though administrative modifications can easily be reversed by future administrations.