Opinion - Military leaders have the right to disobey Trump's unlawful transgender ban

Yahoo

15-05-2025

Commanders across the U.S. military face a terrible choice, now that the Supreme Court has greenlighted President Trump's purge of transgender service members from the ranks.
One choice is to refuse, at great personal risk, the seemingly unlawful order to involuntarily discharge highly capable, well-trained (millions of dollars' worth), well-respected and highly decorated transgender warriors serving in critical positions in their units. The other is to follow this legally dubious order, which other courts have already lambasted as unconstitutional, and violate their ethical obligations as commanders.
Although two federal courts have found likely violative of equal protection the Trump administration's sweeping February policy separating transgender members within mere months, the Supreme Court has lifted the injunction against it without explanation. The legal hold was meant to prevent irrevocable harm while numerous transgender military plaintiffs challenge the ban's constitutionality in the courts — litigation that could take years.
Within days of the Supreme Court's green light, the Pentagon issued a new order directing commanders to quickly involuntarily discharge transgender personnel who do not leave voluntarily. This places commanders in an awful bind, as involuntarily separating hundreds (or more) of transgender military members from the ranks doesn't occur magically. Their erasure requires military commanders to initiate discharge procedures — including, in some cases, convening boards of officers, a formal procedure meant to provide some due process for those serving.
Commanders bear a burden that is both morally corrosive and deeply problematic. Military officers have a duty to lead and have been trained to do so. They are legally obligated to take care of the men and women under their command so that they, working as a team, can fulfill today's complex missions. The ordered purge directs commanders to do the opposite: instead of taking care of their people, commanders will, in essence, be burning them at the stake.
As a former military lawyer and leading military law scholar, I would be remiss if I didn't point out that commanders could disobey the legally dubious orders to carry out Trump's trans ban. Under military law, they have an opportunity to disobey current orders to carry out the purge, due to the policy's unclear legality.
Military members' legal obligation to follow orders — upon pain of criminal prosecution through court-martial for disobedience — only applies to lawful orders. The opposite is also true: military members have a legal duty to disobey unlawful orders. But the requirement to disobey only applies to clearly unlawful orders, such as a directive to commit a crime (like killing an unresisting prisoner or shooting women and children who pose no threat, such as during the My Lai massacre).
Although 'following orders' hasn't been a valid defense for following manifestly unlawful orders since the post-World War II Nuremberg trials, the bar for what constitutes such a clearly unlawful order is a high one — and rightly so, given that obedience, at least to lawful orders, has been integral to military efficacy for centuries.
Applied here, the Pentagon's orders carrying out the Trump transgender purge are not manifestly unlawful. Hence there is no legal duty to disobey them. However, they are not clearly lawful, either, thus falling into a gray zone between clearly unlawful (which must be disobeyed) and clearly lawful (which must be obeyed), both upon pain of criminal prosecution. Although military law presumes military orders' lawfulness, this presumption can be overcome.
The ban's constitutionality is the subject of ongoing litigation in several federal courts. A reasonable commander could, based on this ongoing litigation, reasonably question the lawfulness of purge-related orders and disobey them due to perceived illegality — despite the Trump administration's politically appointed Pentagon civilian lawyer presumably giving the policy a legal thumb's-up. Expect that top military lawyers will presumably also opine that the policy is lawful; recall that the secretary of Defense fired the top lawyers earlier this year so that they wouldn't stand in his way.
Indeed, military commanders not only reasonably could but reasonably should question the lawfulness of their orders to execute the Trump transgender purge. As the military's highest court has emphasized, 'the obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent, obliged to respond, not as a machine, but as a person.'
However, challenging the lawfulness of a military order by disobeying it comes with significant risk. The commander disobeying it could face court-martial, where the legality of the order would be decided by a military judge. This is a grave risk, given that military judges are officers whose judgeship is merely one assignment in their careers. They lack structural independence from the Pentagon hierarchy — their vulnerability to inappropriate pressure is baked into the military justice system.
Or, a disobeying commander could simply be removed from command and receive career-ending unfavorable evaluations for challenging the legality of his or her orders.
Yet such negative effects for disobeying orders to purge the ranks of honorable, effective warriors only would come about if enough men and women in uniform choose to follow the orders to carry out such consequences.
In theory, if every officer were simply to say no, the entire military could just say no to this dystopian, harmful scheme. However, given the ingrained obedience to orders that permeates military culture, and the very real risk of losing one's career or even being imprisoned at Fort Leavenworth, commanders and others in uniform are likely to choose the easier wrong than the very hard right, and involuntarily discharge transgender soldiers, sailors, Marines, airmen, airwomen, Coast Guard personnel, and space guardians whom they know are effectively contributing to national security and are being wrongly persecuted. The moral corrosion that will follow touches not only those carrying out these seemingly unlawful orders but all affected units.
Dark days are on the near horizon for our military, and for our country.
Rachel E. VanLandingham, Lt. Col., USAF (ret.), is Irwin R. Buchalter Professor of Law at Southwestern Law School and president emerita and current director of the National Institute of Military Justice.
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