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Area universities generally prohibit discrimination based on any protected trait, including gender identity. And the organizations they allow on-campus for job recruitment have to follow those same rules… Except when it comes to the military. Because of the Solomon Amendment, banning military recruitment would run the risk of losing access to the federal funding many universities rely on.
This isn’t a new debate, but the impacts remain very real — both for students trying to pursue military careers, and for trans servicemembers who already serve.
We’ll break down the academic and legal questions at play, and meet a trans servicemember who worries about what this means for current and future members of the military.
Produced by Maura Currie
- Gihan Fernando Executive Director, American University Career Center
- John Banzhaf Public Interest Law Professor at George Mason University; @ProfBanzhaf
KOJO NNAMDIYou tuned into the Kojo Nnamdi Show on WAMU 88.5. Welcome. Later in the broadcast former Virginia Governor Terry McAuliffe has a new book out about the events in Charlottesville in 2017, and the deadly rally by White Nationalists.
KOJO NNAMDIBut first, earlier this year the military banned transgender people from enlisting or serving in the U.S. military. The new Department of Defense policy has been the subject of a lot of legal action, but it's currently in place and it's putting universities in a difficult, but not unfamiliar position this fall as students return and job recruitment season begins. As in past debates around recruiting on campus, universities can put anti-discrimination policies in place, but most will have to also allow the military to recruit as well. Joining me in studio now is Gihan Fernando. He is the Director of the American University's Career Center. Thank you for joining us.
GIHAN FERNANDOIt's a pleasure.
NNAMDIAlso with us is John Banzhaf. He is a public interest law professor at George Mason University. Thank you for joining us.
JOHN BANZHAFMake for that George Washington. If I may make a slight correction, the current policy does not ban transgender individuals. There are several exceptions to it, which the transgender plaintiffs --
NNAMDIThis is true.
BANZHAF-- recognized in the two most cases.
NNAMDIYes, we'll talk about what those exceptions are in a little while. But Gihan Fernando, I'll start with you. American University, and I should mention here that WAMU is licensed to American University. The university sent a memo out to the university community explaining the school's position when it comes to this military ban. What did you share with students and staff, and what's been the response?
FERNANDOYes, so the community as you know, was made aware of these issues by the memo that went out recently from the provost, and from our VP for Campus Life and exclusivity. And the purpose of sending that memo out was to really to educate our community of students and scholars on the issues faced by this. So as you know students aren't yet back on campus, so we have not yet heard significantly from them. But it was really important to us to raise the issues that come up. I want to take a step back and talk a little bit about recruiting at a university in general, and how this issue kind of arose. So for many years we've had a large number of public, private, nonprofit and for profit employers recruiting on our campus with our students. And we welcome them regularly.
FERNANDOIn addition, as with most universities, we have a nondiscrimination policy that protects our students from recruitment on illegal categories of status, right. So our policy closely tracks the D.C. Human Rights Act, which protects people on the basis of gender identity and expression among other things. So when the military have their ban on or partial ban as the professor just said, on certain trans people surveying that puts them in conflict with our recruitment policy. And under normal circumstances we would not allow that employer to come on our campus, because they're in violation of our nondiscrimination policy.
FERNANDOHowever, there is a federal law known as the Solomon Amendment, which mandates that if a university does not allow the military to recruit on their campus that the university would then face the withdraw of federal funding, which can include financial aid for students as well as research grants that our faculty and others might have secured in order to do the work of knowledge production that the university is engaged in.
FERNANDOAnd so with all of that that puts us into a very difficult position where we have to on the one hand, you know, have an employer who is in violation of our policy, but are in effect required to have them come on our campus. And the purpose of the memo was to educate our community on those issues before the military was on our campus again recruiting this Fall.
NNAMDIJohn Banzhaf, talk a little bit about how the Solomon Amendment came about.
BANZHAFWell, the Solomon Amendment was originally passed in 1996. And the concern was that military recruiters were being kept off campus, because of their policies. At that point I believe regarding gay people rather than transgender people. It mostly affected law schools, because our body, the American Association of University, I'm sorry. American Association of Law Schools passed a requirement that law schools had to keep the military recruiters off campus. The Solomon Amendment was repassed or expanded upon in 2001, so it provided that if any school, for example, my university of the law school didn't allow military recruiters on campus the entire school could be penalized. And as my colleague here has pointed out, loss of research grants for most major universities his as well as mine, would be basically the null of death.
BANZHAFThis was challenged, it went all the way up to the Supreme Court in a case called the Fair Case. And ironically the Supreme Court rejected all of the challenges overwhelmingly unanimously saying in effect they're silly, they shouldn't even have been brought. So what we have now, and I don't see it as that much of a problem, is that if there is a federal requirement of any kind with regard to military recruiters on campus, with regard to travel, with regard to nondiscrimination, with regard to transgenders using rest rooms and so on, I think any school can simply say to the students, we're very sorry. We don't necessarily support it, but this is law. We have to obey it.
BANZHAFAnd my guess is that virtually every student here, probably even most of the LGBT and transgender students would prefer to have the university continue to be funded, rather than having to substantially increase their tuition, even if it meant that these recruiters came on campus, because practically I think it's mostly symbolic. If AU kept them off the campus I don't think Trump would wake up one morning and say, oh my golly, they're not letting our recruiters on, I guess I better change the policy. And I think most of the people who want to go into the military pretty much if they care are aware of the policy. I think certainly any student who is already transgender would know about the policy, and therefore it would not directly affect anybody. So it's mostly symbolic, and I think the simple answer to any federal requirement is, sorry students, that's what the law requires, we have to obey.
NNAMDIWe're talking about campus military recruitment this year in the face of the partial ban enacted earlier this year on transgender persons being in military service. We're talking with John Banzhaf. He is a public interest lawyer at George Washington University. And Gihan Fernando is the Director of American University's Career Center. Gihan, what kind of federal support and funding does a private university like AU receive?
FERNANDOAs I mentioned previously so a significant part of that funding would be in federal grants to our faculty to conduct research in any wide range of areas of knowledge production that is their job, you know, that's what they do. That's the basic functioning of a research university which we are. In addition, the other big and very significant category of funding is financial aid for students to be able to participate in their education at a private university like AU and many of our students are certainly in this, have federal financial aid as part of their funding that allows them to participate in their education.
NNAMDIAnd to be clear here John Banzhaf, what we're talking about is a ban on serving as anything other than your biological sex; is that correct?
BANZHAFWell, it's a little bit more complicated than that, and I'll read a little bit from the plaintiff's explanation. These are the transgender people so I assume they're slanting it a little bit their way. But what they say is that individuals who want to serve openly are barred. If they are willing to serve in the gender assigned to them, that is I assume based upon their genitalia, they are barred from being involved. If they have a history or diagnosis of gender disorient, except if they've been free for 36 months. If there are people, who have not transitioned and they are willing to serve according to their biological gender, then they can serve. So if a person coming in has a penis, that person can serve providing that he is going to be showering and bunking and so on with people who have the same sex organ. That person cannot for example shower with people who have the opposite gender.
BANZHAFSo it is not a complete ban. Obviously it is very objectionable to people who want to serve in what they believe is their gender identity. On the other hand, let's note that there were women well documented in both our revolutionary war and our civil war, who because they wanted to serve were willing to dress up and act as men even though their obvious gender identity was female and they managed to put up with it. Also I think we might want to note, because this is your college and mine, that there are many employers who do lots of things that I think almost every university would object to, but they're not banned. I don't think your university or mine bans recruiters from tobacco industry. They kill 500,000 people a year or today's topic, people, who make guns or high capacity magazines, those people -- coal industry, where most of them are very upset and so on.
NNAMDIOne more legal question, say a college or a university is willing to forfeit federal funding, could the government still force that college to allow military recruitment without that funding leverage?
BANZHAFAnd the answer is very clear, because in the case I mentioned where the Solomon Amendment was attacked on First Amendment grounds, not only did the Supreme Court rebuff each and every one of the arguments made by these distinguished constitutional law professors, some of them are my colleagues, but more importantly they said, that even if universities were not receiving federal funds the Congress could order them to permit representatives to be on campus.
NNAMDISo the universities in fact have no leverage. Joining us by phone is Denny Meyer, he's the National Public Affairs official for the Transgender Veterans Association. Denny Meyer thank you for joining us.
DENNY MEYERThank you. As Transgender American Veterans Association.
NNAMDIWhat does the Transgender American Veterans Association or TVA do?
MEYERTAVA, T-A-V-A. Listen --
NNAMDIT-A-V-A, TAVA, got it.
MEYERYes, sir. We advocate and support our transgender veterans and active duty service members, and we've been doing so for -- since about 2003.
MEYERAnd our position is that what is going on, what was just described is nothing other than government enforced bullying and discrimination. And my own view is that if universities united and said, drop dead, this Solomon Amendment would come to an end pretty quickly. It's caving in, really, to government and administration bullying. The current administration not only does that, but it also instigates and encourages racism and mass shootings of people, who are not Americans, might be Hispanic particularly and Muslims and others. The administration is actively instigating discrimination and resulting in what you see today.
NNAMDIYou are not yourself transgender, but you are a member of the LGBT community and you're a veteran. What do you think the impact is of banning certain service members like this?
MEYERIt harms our military. It harms our readiness and it harms the reputation of America. I served for 10 years during and after Vietnam as a gay person, when it was just outright bad period. And if you were revealed to be gay you could be murdered by your fellow service members, and the military would almost kind of encourage that. And if that didn't happen, you'd be interrogated viciously for three months and then dishonorably discharged and disgraced.
BANZHAFCould I jump in for a minute?
MEYERWhy did I serve? I served, because my parents were refugees to this country and I was raised as a patriot. And I decided I wanted to serve. I was very determined. And I served for 10 years and left honorably as a sergeant first class. Today's transgender veterans service, would be service members are going through the same thing. You can detail all the ins and outs of it, but it's the same thing. It's outright raw discrimination by the government of very capable people. In fact, transgender people are twice as likely to serve as any other group of Americans, because they --
NNAMDIAllow John Banzhaf to jump in.
BANZHAFTwo points. First of all, we talk about bullying, that's not the only example. For example, the Obama administration bullied every university into taking much more seriously complaints about rape. And as a result, every university has spent millions, tens of millions of dollars in some cases overhauling their policies perhaps in some cases going too far. Let us also remember that the military discriminates in many ways. The military discriminates up until recently against women in combat positions. The military discriminates against people who are obese. And about a third of the people who are trying to become or enter the military are obese, they are disqualified on those grounds.
BANZHAFThey disqualify people who have anorexia, which is a little bit like transgenderism, in the sense that people have a belief, which is to the rational observer contrary to what is true. People who are anorexic think they're overweight, they're not. So discrimination --
NNAMDIWell, you're saying discrimination takes place in all kinds of ways in the military. But Jackie called into ask. She said, you said that it is in the best interest of universities to abide by the policies restricting trans military members. And so she wants to ask, what if the policy was banning people based on race or another minority group?
BANZHAFIt is prohibited by federal law, by state law, in D.C. by D.C. Human Rights Act as my colleague mentioned. And if it's a state university it would be prohibited by the United States Constitution. But again, there are lots of different forms of discrimination, some are perfectly legal, some are clearly illegal, and some are in a grey area. For example, as your guest on the phone says, he is gay. In about half the states they are protected against discrimination in areas like hiring, at least theoretically, but about half they are not. Transgender people are protected in far fewer situations.
MEYERWell, let's not mix apples and oranges with states and other things. We're talking about the federal government and the military. And the current administration is encouraging more discrimination on all levels against more minorities than any other in history. And the Obama administration fought to end all that discrimination. There's a difference between physical inability and other concerns about genuine identity. So let's not mix apples and oranges here.
NNAMDIGihan Fernando, what does it mean in practice, when you say that American universities continuing support, it's quoting here, "Commitment to inclusive excellence." And how do you explain the situation to trans students interested in military? Does it have to be as John Banzhaf says it is? Look, our hands are tied, there's nothing we can do here.
FERNANDOSo certainly in terms of letting the military come on campus, I believe that that's the position that the university has taken, that we need to do that, right. That said, I think there are many things that we need to do in order to make sure that our community is well supported and aware of the situation here. So at the broadest levels this term inclusive excellence is one that we have embraced at our American University. And what does that mean? Inclusive excellence is the idea of broadly speaking that inclusion is not a nice to have, it's a must have. It's something that in order to be excellent as an institution and to excel we need to have inclusivity. And this is based on a lot of research out there in the world that inclusion is a critical part of achieving your best self as an institution and as a community.
FERNANDOAnd so we have worked hard to continue on this journey that we are on to learn, to find new ideas and thoughts. And this piece of how do we move forward on trans inclusion in the face of the military's policies is one where, you know, at the university level there are various offices across the university that are working on inclusive excellence. I'll just talk about my area of expertise, which is the Career Center at AU. So we have done a variety of programming over the years that helps our LGBT students and others to connect with our alumni and to learn from them about the issues that they have faced in hiring and in recruitment and how to negotiate that effectively and move forward.
NNAMDII'm afraid we're running out of time very quickly, but it would appear that students if they want to, they can protest, they can hold sit-ins.
NNAMDIThey can object in various ways to military recruitment on campus. So we will have to see what happens. Gihan Fernando is the Director of American University's Career Center. Thank you so much for joining us.
FERNANDOIt's my pleasure. Thank you for having me Kojo.
NNAMDIJohn Banzhaf is a Public Interest Professor at George Washington University. Thank you for joining us.
BANZHAFThank you sir.
NNAMDIAnd Denny Meyer is the National Public Affairs official for the Transgender Americans Veterans Association TAVA. Thank you very much for joining us.
NNAMDII'm going to take a short break. When we come back former Virginia Governor Terry McAuliffe joins us. He's got a new book about the events in Charlottesville in 2017, and the deadly rally by White Nationalists. I'm Kojo Nnamdi.
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