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Don’t Ask, Don’t Tell Again: Opposing U.S. Military Recruitment at Harvard Law

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We condemn the presence of the U.S. Army and Air Force Judge Advocate General Corps at the Massachusetts Law School Consortium Job Fair taking place on Harvard Law School’s campus on Jan. 28 and Jan. 29. As the Co-Presidents of Harvard Law School Lambda, the Law School’s BGLTQ student organization, we refuse to condone the government’s failure to validate the existence of transgender people.

Trump’s executive order barring transgender people from serving in the military is an unsound military policy, and the ban’s purported rationales are prejudiced and inhumane. Trump has reasoned that the military cannot support transgender service members’ alleged “tremendous medical costs and disruption,” and former Secretary of Defense James N. Mattis has rationalized that transitioning service members pose “substantial risks” to the military because they “could undermine readiness, disrupt unit cohesion, and impose an unreasonable burden on the military that is not conducive to military effectiveness and lethality.” Such claims have been repeatedly debunked by studies and by U.S. allies who have long allowed transgender people to serve openly. And we vigorously reject the bigoted accusation that current and former service members who have put their lives at risk to defend this country, such as Logan and Laila Ireland, Kristin Beck, and Sage Fox, are a “burden” in any way. On Tuesday, the Supreme Court lifted two of the nationwide injunctions that federal courts had placed on the ban, potentially allowing the ban to go into effect. The Court’s decision has rendered the future of transgender service members endangered and uncertain.

We adopt the example of the many Law School students who protested JAG’s presence on our campus during the era of “Don’t Ask, Don’t Tell” Like many law schools, Harvard Law School has an employer non-discrimination policy that explicitly prohibits organizations that discriminate against the BGLTQ community from conducting recruitment activities on campus. This policy conflicts with the Solomon Amendment, a statute that bars federal aid to universities that prevent military recruitment on campus. Under DADT, JAG violated the Law School’s non-discriminatory policy by refusing to hire “out” BGLTQ students. However, because the Supreme Court ruled in Rumsfeld v. FAIR that the Solomon Amendment does not violate the First Amendment’s free speech guarantees, the Law School administration was unable to bar JAG from recruiting on the Law School’s campus.

Despite the ruling, some professors, including then-Law School Dean Elena Kagan, and many Law School students utilized various tools of resistance to protest DADT. Notably, members of HLS Lambda signed up for interview slots with JAG and outed themselves during their interviews in an act of defiance. Their tireless resistance only ceased when DADT was repealed in 2010. Today, we pick up where the previous generation of Law School students left off by continuing to oppose any attempt to discriminate against members of the BGLTQ community on Harvard Law School’s campus.

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The trans ban is only one of several ways in which the Trump-Pence administration’s attempts to marginalize the BGLTQ community and specifically trans people. The Department of Health and Human Services is spearheading an effort to establish a legal definition of sex under Title IX that would minimize protections for transgender people under federal civil rights law and is rolling back regulations affirming transgender people’s right to access healthcare without discrimination. The Departments of Education and Justice rescinded a guidance that clarified trans students’ right to equal access to education, turning a blind eye to widespread anti-trans discrimination in schools. The president’s religious liberty executive order and the Department of Justice’s religious liberty task force have placed cross hairs on marriage equality and discrimination against BGLTQ employees. The Department of Justice sided with the baker who refused to bake a cake for a gay couple, denigrating the experience of all BGLTQ individuals who lack equal treatment under the law. That baker is now refusing to serve transgender people. By removing all mention of BGLTQ people from the White House website and from the upcoming census, the president is attempting to erase us and our relevance. The trans ban is one piece of the administration’s extraordinarily complex, oppressive machine of discrimination against the BGLTQ community, and the onus is on us to fight back against any anti-trans policies that reach Harvard’s shores.

We at Lambda have been pleasantly surprised by the support that we have found among the wider Harvard community for transgender rights, with Harvard students attending our phone banks for “Yes on 3” and attending our rally for transgender rights in the fall. We may not be able to stop JAG from coming to the Law School because of the Solomon Amendment, but we can all do more to resist the marginalization of transgender people here at Harvard and in the wider Boston community. The Harvard community will continue to show our opposition to the trans military ban through protests on Jan. 29., and trans students always have a safe space in our Quoffice in Hastings Hall.

Harvard students: Do not be complicit in the administration’s denial of civil rights from a group that has long been unrecognized and disrespected.

Laura Older and Heather L. Pickerell ’15, a former Crimson Editorial executive, are second-year students at Harvard Law School. They are the Co-Presidents of Harvard Law School Lambda.

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