A different take on obeying the transgender ban--a guest post

Rachel VanLandingham's "Military Leaders Have the Right to Disobey Trump's Unlawful Transgender Ban" (The Hill, May 15, 2025) doubtless came from a good place.  Regrettably, it is dead wrong on the law.  Commanders who adopt this viewpoint not only place themselves and their commands in great legal peril, they are also jeopardizing the troops they lead and are acting in contravention of their oath to the constitution.
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From the outset, the transgender ban is, in fact, bad policy.  It denies transgender servicemembers, most of whom can serve capably in a wide range of assignments without burdensome medical accommodations, the opportunity to serve.  Moreover, it robs the armed forces of the talents and efforts of their honorable service.  Like an officer with high blood pressure or migraine headaches, whether the individual can meet the requirements of their service is best left to a case-by-case analysis measured against known, relevant medical and deployability standards, not a categorical exclusion.

As a matter of military law, administrations are entitled to make bad policy, yet demand and expect obedience in most circumstances.  The 2003 invasion of Iraq was clearly bad policy; not only did the invasion violate Article 2(4) of the UN Charter without an adequate basis of national self-defense, the United States opted into an armed conflict against another state being capability managed through sanctions, diplomacy, and no-fly zones.  But once the President made the decision to invade Iraq, and especially after Congress gave its approval through a joint resolution, orders to deploy and attack the Iraqi armed forces were clearly lawful.  The legality of the order was reinforced through the courts-martial of a handful of servicemembers advancing idiosyncratic constitutional theories that appointed themselves as the ultimate arbiters of the Commander in Chief's orders.  That did not pan out.  Don’t Ask Don’t Tell, the stopgap measure on the way to open service by gay servicemembers, was deeply unpopular in the armed forces, yet unquestionably lawful.

Similarly in this situation, there are only two types of orders:  lawful orders, which enjoy a presumption of legitimacy, and unlawful orders.  Unlawful orders are those which translate into a mandate of conduct that clearly and obviously violates some other law, such as the law against murdering civilians not engaged in armed conflict, or an order with no valid military purpose, such as a command to submit to personal servitude.  In the armed forces, an order is either lawful or it is not.  Orders are presumed lawful.  The lawfulness of the order can only be tested by disobeying, whereupon a military judge will rule on the lawfulness of the order when challenged by a defendant on motion.  If the order is lawful, the trial proceeds to judgment by the judge or a military jury.  If it is not lawful, the charge of disobedience is dismissed.  There is no third option, such as the one Professor VanLandingham suggests.
When a servicemember believes an order may be unlawful, he or she has an obligation to seek clarification; in some circumstances, he or she may also seek the advice of a legal advisor, a chaplain, or a senior commander.  Where, after reflection and, if available, professional advice, an order requires clearly unlawful conduct, not only is disobedience permitted, it is required.  Obedience to orders often prompts weighty moral and legal questions which commanders attempt to help more junior personnel interpret through clear rules of engagement and training on ethics and the law of armed conflict. 
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The transgender discharge policy, however distasteful, is presumptively lawful.  There is no duty to disobey.  There is not even an option to disobey.  The order has been reviewed at the highest legal levels in DOD, and the Supreme Court has given its passive permission to enforce the order.  However repugnant as policy, it is clearly lawful.  There is no third category of orders that are so unwise that disobedience is permitted, as Professor VanLandingham proposes.  Her argument essentially boils down to a policy choice, dressed in the fine linens of legal compliance.  Military members are not permitted to weigh in through disobedience on lawful policy choices, no matter how morally outrageous or repugnant.  The officer or soldier who cannot bring himself to obey may only resign to avoid moral hazard without violating well-established law.
 
Finally, absent resignation, an officer who disobeys an order like the transgender discharge policy not only damages his or her own standing as an officer.  He or she also harms the oath of office itself.  The oath requires fealty to the constitution, including the results of constitutional processes.  The Secretary of Defense is a Presidentially-appointed, Senate-confirmed cabinet member with the legal authority to set Departmental policy and issue mandatory orders.  Disobeying is an affront to the officer's oath of office, because it is an affront to the processes mandated by the Constitution, even when they produce less than desirable results.  Defiance chips away at the majesty and regalness of the oath over time as a guarantor of the special duties and obligations of the armed forces' officers.
 
Being a respectful ally of the LGBTQ community in and around the armed forces is not a suicide pact.  The current administration's policy is wrongheaded and borne of bias, but it is lawful.  Military leaders are duty bound either to execute it or to resign in acknowledgment of the leader's personal moral choices.  There is no third way.

Butch Bracknell is a retired Marine Corps lawyer and former NATO civilian attorney.  He is an adjunct instructor at William & Mary School of Law.