When Donald Trump announced his plan to ban transgender people from military service, #TransRightsAreHumanRights quickly began trending on Twitter. While tweets including the hashtag ranged from support for the LGBT community to attacks on Trump, they all carried with them the assumption that trans — and all — people have a “right” to serve in the military. Whether you support President Trump’s policy or not, Americans must reconsider the claim that everyone has a right to military service.
The political theory of the social compact — under which the Founders built America — says natural rights, i.e., true rights, are synonymous with personhood and belong to you simply because you exist. In a word, they are unalienable.
That military service is alienable, through restrictions on membership necessary for our military to fulfill its purpose, automatically rules it out as a right. In other words, the military blocking a 16-year-old’s ability to enlist does not divorce him from or even endanger his personhood. Children under the age of 17 or the mentally and physically disabled, for example, are excluded because their lack of mental maturity or physical capacity threatens combat readiness and effectiveness.
The justifying condition of exclusion for the sake of the group’s ability to perform and survive as a whole classifies military service as an opportunity, at most. Thus, should the Department of Defense and the president determine that 16-year-olds are fit for effective combat service, they wouldn’t be granting a right but opening an opportunity.
That being the case, when the Obama administration’s chairman of the Joint Chiefs of Staff, General Martin Dempsey, and defense secretary, Leon Panetta, opened more than 14,000 military positions to women, they did so based on new qualifications of combat readiness not on women having an inherent “right” to service:
We are fully committed to removing as many barriers as possible to joining, advancing, and succeeding in the U.S. Armed Forces. Success in our military based solely on ability, qualifications, and performance is consistent with our values and enhances military readiness.
When Ashton Carter, Obama’s fourth defense secretary and the only one without military service, opened all military positions to women, he did so for the same reason:
Anyone, who can meet operationally relevant and gender neutral standards, regardless of gender, should have the opportunity to serve in any position.
Look at the military’s fitness standards. They directly contradict the so-called equal-opportunity theory, limiting participation to those with physical advantages. A thought experiment helps draw out the point here: Were these conditions for membership applied to free speech — which few would claim is not an unalienable right — there would be bipartisan outcry, because withdrawing someone’s right to peaceful protest on the basis of physical differences directly clashes with our idea that a person’s humanity qualifies him to exercise it.
If military service were a right, the only justification necessary to permit transgender soldiers to serve would be their inability to do so. Think of it this way: It doesn’t matter what reasons you may have for supporting a group’s ability to speak freely; the fact that free speech is a natural right makes any other argument about why a group should be allowed to speak freely redundant and irrelevant. The converse of this argument reasons that if you believe restrictions on combat readiness and effectiveness can or should block any particular group, you must also believe military service is not a right.
Of course, we recognize that qualifications such as physical capability are crucial to the success of our armed forces, which is why treating military service as a right is a dangerous step. It would require we withdraw these restrictions and risk compromising our military’s combat readiness.
We recognize that qualifications such as physical capability are crucial to the success of our armed forces, which is why treating military service as a right is a dangerous step.
Unfortunately, our confusion about what is — and what is not — a right is not new. The current conversation regarding the expansion and redefinition of rights long predates the argument over military service. In fact, American political scientists have been redefining rights since the 20th century, when progressives such as Charles Edward Merriam declared natural rights were useful as an ethical foundation, but have “no political force . . . unless recognized and enforced by the state.” By the 1970s, theorists were declaring the government the outright creator of rights, ignoring the detrimental effect that has on a state founded on a limited definition.
We often see the manifestation of this redefinition in public discourse, with people believing they are entitled to programs on the basis that those programs exist. The thought has morphed beyond governments and entitlement, though: Now, in fact, regular citizens have adopted a civil responsibility to create rights.
In November 2016 in Michigan, for example, state attorneys requested a judge dismiss a lawsuit regarding the quality of education on the grounds that literacy isn’t a right, prompting severe pushback on social media:
sometimes i miss michigan since i grew up there. but then i remember the government there doesnt think literacy is a human right so nope
— 🎄merry hexmas 💀 (@veolettes) January 16, 2017
This is some high-profile virtue signaling, especially considering many of the Declaration’s “rights” contradict one another given religious or cultural conditions and are impossible to enforce because of incompatibility with existing regimes. All the way down in Article 17, by the way, is the right to own property, and nowhere in the document is the right to self-defense found.
This misunderstanding of rights is undermining our real, natural rights and blocking American political discourse; arguing about issues such as the role of the transgender community in the military becomes a debate about personhood instead of the actual validity of the position itself. We need to start working our way back to effective political discourse, by working to fix how the word “rights” is fast losing its meaning and damaging how we talk about government.
— Philip H. DeVoe is a Collegiate Network fellow with National Review.