By: Micaela Burrow, Daily Caller News Foundation
The military could seek to formally punish service members for refusing to use another service member’s preferred pronouns under existing policy, according to military experts.
A 2020 Equal Opportunity law opened the door for commanders to subject someone who refuses to affirm a transgender servicemember’s so-called gender identity to the Uniform Code of Military Justice (UCMJ) for charges related to harassment, Capt. Thomas Wheatley, an assistant professor at the U.S. Military Academy at West Point, told the Daily Caller News Foundation. Such a move would likely infringe on a servicemember’s constitutional rights to uphold their conscience, but it might not prevent leaders from employing more subtle ways of disciplining service members.
Military experts told the DCNF Congress should step in before it’s too late.
The military “is right to want to protect the rights and welfare of its transgender service members. But it owes the same protection to those who share a different perspective on the issue, especially when that perspective is a deep-seated expression of personal conscience,” Wheatley told the DCNF.
None of the military’s rules explicitly prohibit so-called “misgendering,” when someone uses pronouns to describe a transgender person which do not correspond to the person’s new gender identity, Wheatley explained. However, existing guidance implies that using pronouns rejected by another person violates Military Equal Opportunity (MEO) regulations against sex-based harassment and discrimination.
The UCMJ enforces those regulations.
Service members could conceivably be court-martialed for “refusing to use another person’s self-identified pronouns, even when their refusal stems from principled religious conviction,” Wheatley told the DCNF. “This law applies to service members at all times and in all locations, even when they’re off duty and in the privacy of their off-post residence.”
The UCMJ also prohibits “conduct unbecoming of an officer” under Article 133 and activity that could be seen to discredit the military institution under Article 134 — the same article the military uses to prosecute child pornographers and other acts of sexual deviance, he explained.
“Is it now ‘unbecoming’ and incompatible with service as a commissioned officer to openly hold sincere religious convictions surrounding the act of creation and the nature of human sex?” Wheatley asked.
Wheatley said his interest in the issue was sparked four years ago, when the Army updated its MEO policy stating “violations of MEO and Harassment Prevention and Response policies may result in disciplinary action under the UCMJ.”
The possibility of levying a criminal trial on a servicemember for perceived harassment if that person “misgendered” another service member troubled Wheatley, he said. The Supreme Court had just ruled on Bostock v. Clayton County in favor of the gay and transgender plaintiffs alleging their employers fired them on the basis of their self-described sexual orientation, or gender identity. Conservative justices warned the case could have far-reaching consequences for organizations operating based on religious belief and free exercise of religion in the workplace.
“I knew, given the cultural gap between the civilian world and the military, the issue would be overlooked as it concerned service members. So, I got to work,” he told the DCNF.
In a peer reviewed article recently published in the Texas Review of Law and Politics, Wheatley argued that, despite the existing EO policy, Articles 133 and 134 of the UCMJ are not strong enough to prosecute troops for spurning another’s preferred pronouns.
Under a legal doctrine that “obligates military courts to avoid interpreting the UCMJ in a way that brings it into conflict with the Constitution if possible, that would normally be the end of the analysis,” he wrote. But, the national security imperatives inbuilt with military service often justify curtailing a servicemember’s constitutional rights — for example, the UCMJ’s Article 134 “indecent language.”
Wheatley countered in the article that the military’s special mission can inform judicial analysis but does not require a separate standard.
“A court that applies a standard lower than strict scrutiny would be placing not just a thumb on the scale in the government’s favor, but an anvil — one which virtually guarantees victory for the government in every case where a service member asserts his or her First Amendment rights,” he wrote. It would be “tough” for the military to prove it had a strong enough mission-related argument to mandate gender-pronoun usage.
Arguments that might be considered, such as preserving harmony within military units and safeguarding transgender troops’ emotional and psychological well-being, are certainly important, he wrote. But the former relies too heavily on the vicissitudes of individual interpretation to survive judicial review, while the latter does not take into account the health of the servicemember seeking to live out their religious convictions.
“Preserving unit cohesion and safeguarding the mental and emotional health of transgender service members, though compelling government interests, do not justify the sweeping prior restraints on speech,” made possible in the Army policy, Wheatley wrote.
Previous case law shows that even in military contexts, the standard for what may be prohibited compelled speech is strong, he found.
Looking at previous cases of public employment law governing speech, where free speech has been more frequently challenged than in military-specific case law, he likewise found no strong case for mandating pronoun use.
“The use of one pronoun over another reflects the speaker’s private views on human sex and gender” and isn’t conditioned on the person’s employment, Wheatley argued.
The Pentagon referred the DCNF to the services, which did not respond to requests for comment by deadline.
Wheatley’s research highlights ongoing concerns about the military’s respect for matters of conscience.
Pentagon leaders have pushed diversity and inclusion as an indispensable component of warfighting effectiveness. Opponents say the focus focus on race, gender and sexual identity has distracted the military from more important issues and unfairly privileged minorities. DEI priorities have now overtaken matters of conscience in multiple domains.
In lawsuits over the slow-rolling of religious waivers to the COVID-19 vaccine, for example, victims argued the services issued blanket denials rather than considering each request individually, as they are legally required to do.
Defense Department documents, including the 2022 Diversity, Equity and Inclusion (DEI) Strategic Plan, discuss the freedom to “speak candidly” about issues as a “readiness imperative,” ensuring troops feel included as part of a whole.
“The military policy and legal infrastructure clearly exist to wage war on Americans with deeply-held traditional beliefs about man and woman,” William Thibeau, director of the Claremont Institute’s American Military Project, told the DCNF. Wheatley’s article “should be a red flag to policy makers and elected officials to end this tyranny of liberalism before it is formally levied against American Soldiers preferring to live in reality.”
Experts were not aware of any incidents where a branch of the armed services had attempted to use the UCMJ to punish a servicemember for refusing preferred pronouns.
Commanders do have a wide berth to discipline servicemembers in ways that do not involve a criminal trial but can still have serious implications for a servicemember’s career, possibly including separation from the military under less than honorable circumstances, Wheatley said. Such measures resolve more quickly, have a lower burden of proof than “are almost always shielded from public scrutiny.”
Instead of leaving it to chance, Congress could force the military to establish a servicemember’s “unqualified” right to use pronouns consistent with their religious convictions, a one-pager provided by Claremont suggested. The experts advocated stronger measures too, including decriminalizing unspecified MEO violations and to narrow its scope so that it only applies to activities a servicemember performs while on normal duty hours or contributing to an official military mission.
Congress should develop a public record of incidents in the military where religious freedom is seen to come under threat, the document stated.
Claremont suggested the military conduct regular training on the importance of religious freedom throughout the armed forces and study ways to strengthen protections on service members’ religious expression.
Wheatley also said service chiefs could consider demands for a service member to speak in violation of his or her religious convictions as harassment.
