US Army Announces Intent to Protect “Self-Identity”

Buried deep in the proposed Defense Department Budget for 2017 (PDF, 5MB) was a little noticed comment on discrimination in the US Army [emphasis added]:

The Army remains committed to ensuring the dignity and respect of Soldiers, civilians, and their families…The Army will provide every Soldier and civilian equal opportunities to rise to the level of their merit regardless of their gender, their race, or their self-identity.

Just what is a “self-identity”? Good question, since it isn’t defined in the budget nor apparently in a Defense Department policy, and it hasn’t appeared in any prior DoD budget. It’s also not a Federally-protected class.  Given the context of current events, it seems likely it is intended as a reference to the Army’s foregone plan to repeal the ban on transgender troops, though the Army seemed to dispute anything unique about this year’s new budget wording: 

Cynthia O. Smith, an Army spokeswoman at the Pentagon, told The Washington Times: “Treating all soldiers with dignity and respect is not a change in policy, it is a core value.”

That’s an admirable statement on paper, but also one bereft of necessary qualifiers. Treating a Soldier with “dignity and respect” is relative, from an institutional point of view. How much respect, for example, is US Army Captain Simratpal Singh being treated with as he needs to file a lawsuit to practice his faith while in the Army? How much dignity is a Chaplain treated with when he is threatened with being kicked out of the Navy for stating his beliefs in response to a direct question?  If there’s no “change in policy,” why the change in the policy’s wording?

In this regard, this is not unlike Secretary of Defense Ash Carter’s statement in June of last year:

Discrimination of any kind has no place in America’s armed forces…

Again, sounds good on paper but seems to make little sense in practice.  The US military discriminates in many ways — on the basis of disability, weight, age, physical ability, mental acuity, pregnancy, moral character, and religion, just to name a few. To say that discrimination “of any kind” is or should be prohibited in the US military does not seem to comport with reality. Rather, discrimination of many kinds has a lawful place in America’s armed forces.

The term “discrimination” has improperly taken on a connotation of injustice. Few people complain that a 10-year old can’t obtain a driver’s license or that a jailed felon can’t vote — yet both are the “victims” of discrimination. The term more accurately means defining a distinction about who can or cannot do certain things. That kind of discrimination is not categorically unjust or wrong.

That said, should the Army protect “self-identity” as a class from discrimination? It’s a difficult question to answer, given that the term is undefined. If applied too broadly, it is nonsensical: The Army absolutely should discriminate against someone who takes illegal drugs, even if their self-identity is one in which such conduct is permissible.

That will likely mean the Army will have to be discriminating in what it permits to be encapsulated by the term “self-identity” — which may make it a self-defeating policy.

The US military frequently celebrates its calls for “diversity” and “equal treatment” or its fights against “discrimination.” A problem occurs, though, when the military fences those terms to its own ends. The Becket Fund for Religious Liberty recently noted such cries for diversity should mean, for example, a presumption of religious liberty to protect “diverse” religious beliefs: yet that citation came in a lawsuit against the Army to secure that very freedom.

If diversity isn’t diverse, it may merely become a codeword for special treatment of particular classes.

Similarly, despite claiming the motivation was only “equal treatment,” in the face of DADT repeal some military members have been sanctioned for saying something less-than-affirming about homosexuality — even if such statements were within the bounds of their constitutionally-protected religious liberty. But when homosexual military members have said derogatory things about those religious beliefs, no such sanction followed — even though there isn’t a constitutionally-protected erotic liberty. “Equal” treatment?

In the end, what is the value of a policy against discrimination if it discriminates in its determination of who is protected from discrimination?