[Discuss] SHAFR Council Resolution 1- Doe v. Trump Amicus Brief

Friday, October 19, 2018 - 3:45pm

SHAFR has been asked to sign on to a historians' amicus brief in a case in federal court challenging the current administration's ban on transgender people in the military.  The brief details the past history of discrimination in the U.S. military on the basis of race, national origin, gender, and homosexuality, and the ways those forms of discrimination have given way to inclusion.  An executive summary of that amicus brief--written by historians Ronit Stahl and Jennifer Mittelstadt--is included below.

As per SHAFR's by-laws (amended by a vote of the membership last year), under Article IX, section B, SHAFR may take a public stand on an issue that has received a 2/3 majority vote of Council (with 80% of Council members voting) provided that a simple majority of the full membership of SHAFR approves such a motion (with at least 30% of the membership voting electronically within a period of seven calendar days).

Council approved (11-1 with 2 abstentions) a resolution forwarding a summary of the amicus brief to the membership to make the decision whether SHAFR should sign on to this amicus brief or not.  In that discussion, some Council members expressed the opinion that this brief, based in solid historical research and analysis, was the type of amicus brief that a historical organization such as SHAFR could and should support.  However, some Council members did not think that the brief argued in a way that showed sufficient direct relevance to SHAFR's own scholarly mission to warrant SHAFR taking a position, regardless of the merits of the case.  Some Council members thought it best that membership--rather than Council--make the decision about whether or not SHAFR should sign on.  

This email has been sent to all people who were members of SHAFR on October 18th and who had an email connected to their membership.  Voting on this issue will close seven (7) calendar days after this email is sent.  To reach the "30% of membership voting" provision specified under the by-laws, 366 members will have to cast their vote within the appointed timeframe.  A further email will notify members of the result of this vote.

Doe v. Trump Amicus Brief Summary:

A group of historians of the military, national security, and foreign relations proposes to submit an amicus brief to the U.S. Court of Appeals for the D.C. Circuit, in support of plaintiffs who challenge the federal government’s recently announced policies to deny or severely limit transgender individuals’ opportunities for military service.  The proposed brief demonstrates that the United States military has a long history of excluding from its ranks entire categories of people, with military authorities justifying this discrimination by referring to concerns over unit cohesion and readiness.  Yet the military also has a long history of successfully integrating previously excluded categories.  Indeed, the historical record consistently shows that, after the military has stopped a discriminatory recruitment practice, its leaders come to champion the formerly excluded groups and to cite their contributions to enhancing military readiness.  This pattern has repeated itself for at least four different groups who sought to serve in the armed forces despite official resistance: African-Americans, persons deemed “foreign” in national origin, women, and gay and lesbian servicemembers.

In support of the exclusionary policy, the government argues that the court should defer to military authorities’ current judgement that “service by individuals with gender dysphoria . . . poses . . . significant risks to military readiness,” and “would undermine . . . good order, discipline, steady leadership, unit cohesion, and ultimately military effectiveness and lethality.” The proposed brief argues that such deference is not warranted and that the government’s current position with respect to transgender servicemembers closely resembles positions that military leaders formerly advanced with respect to other historically marginalized groups.  Moreover, the military itself has already debunked the proffered justifications.  Less than three years ago, after a period of careful review, the then-Secretary of Defense and other military leaders concluded that increasing opportunities for transgender individuals to serve in the military would not pose an unacceptable threat to military readiness or unit cohesion.  For the leaders of the armed forces to so quickly turn back toward discrimination is sufficiently anomalous to warrant careful scrutiny.  The military’s well established history of advancing—and then admitting the error in—justifications for discrimination against historically marginalized groups based on “military readiness” and “unit cohesion” (or their historical analogues) should lead this Court to treat skeptically the government’s current request for deference to military leaders’ judgment.  

Moderated Discussion Thread (below), to access please visit https://shafr.org/user to log-in or create a new user account.



I hope that SHAFR signs on to the amicus brief in Doe v Trump.  As scholars we have an
obligation to bring our knowledge and insights to bear on critical matters such
as these. It is not a violation of scholarly ethics or the purpose of a
scholarly organization to participate in such efforts if our position reflects
the reasoned analysis of our research. Indeed, one of the main reasons we have
the privileged position in society that we do is to fulfill our “public trust” to
“declare the results of [our] researches” no matter “to what extent they may come in to
conflict with accepted opinion,” as the AAUP put it in the 1915 “Declaration of Principles on Academic Freedom and Tenure.”


The historical basis for the amicus brief is well supported by current research. It is hard to
apply current ideas of gender and sex to understand the motivations and actions
of people in the past, but there is good evidence of many people with a
differently gendered sense of self having served since the nation’s founding. Better
known individuals such as Deborah Sampson in the Revolutionary War, Albert
Cashier in the Civil War, or Edward Wood Jr in World War II  represent many
others who would fit in this category. It is also clear that people who cross
the gender binary have taken great risks, making themselves subject to
discrimination, humiliation, criminal sanctions, and violence. Given the
historical evidence for military service in the past, it is highly likely that transgender
people will continue to serve in the military despite the imposition of a
renewed ban on transgender service or the enforcement of restrictions based on
the sex assigned at birth (as the Administration is currently pushing).
However, they will be at greater risk of discrimination and violence.   


For those who want to read further in the history of diversity, inclusion, and exclusion
in the military. Here are a few places to start:


Evans, Rhonda. "A
history of the service of ethnic minorities in the US Armed Forces." The Palm Center (2003).https://www.palmcenter.org/wp-content/uploads/2017/12/Evans_MinorityInt_200306.pdf

Canaday, Margot. "US military integration of religious,
ethnic, and racial minorities in the twentieth century." The Palm Center (2001) https://www.palmcenter.org/wp-content/uploads/2017/12/Military_Integration_of_Minorities.pdf

Frank, Nathaniel. Unfriendly fire: How the gay ban undermines the military and weakens America. Macmillan, 2009.

Gates, Gary J., and Jody Herman. "Transgender military
service in the United States." The Williams Institute (2014) https://cloudfront.escholarship.org/dist/prd/content/qt1t24j53h/qt1t24j53h.pdf.

Bérubé, Allan. Coming
Out Under Fire: Gay men and women in World War II. Free Press, 1990.

Barnett, Joshua Trey, and Brandon J. Hill. "Covert Operation:
Archiving the Experiences of Transgender Service Members in the US
Military."Transgender Studies Quarterly 2, no. 4 (2015): 584-594.

Victor Silverman
Department of History
Pomona College



In principle I am not opposed to activism, even activism that leads to court battles. However, my concern with adding SHAFR's name to this amicus brief is that it detracts from the main mission of the organization, which according to SHAFR's website is the "scholarly study of the history of American foreign relations. As such, it promotes the 'the study, advancement and dissemination of a knowledge of American Foreign Relations' through the sponsorship of research, annual meetings, and publications."

I don't know that adding our organization's name to an amicus brief on an issue with only a cursory relationship to American foreign relations (depending on how one defines foreign relations and depending on the ultimate international fall-out of the Trump ban) benefits SHAFR in contributing to its organizational goals.

I am reminded of Aaron O'Connell's comments in the most recent copy of Passport when he stated his desire that "collective political activism in SHAFR's name is appropriate when the issue at hand directly affects the writing and teaching of history." I do not believe that to be the case here.

If our organization or selective members are called upon to bring testimony to the court on the history of discrimination in the U.S. military, then that is another matter entirely, and completely acceptable as it is within our practice as historians. As it stands now signing on to this brief is more about making history than observing it.

There are plenty of organizations whose main focus is political activism of one form or another which SHAFR members can belong to, but there is only one main organization that is responsible for the scholarly study of the history of American foreign relations. I fear a slippery slope as the more activism SHAFR engages in the less focused it will become on its primary objective.

Almost any contemporary issue could be construed to have an impact on American foreign relations: immigration, certainly, economic disparity, likely, tax policy, yes, police brutality, and I am sure there are many members who are willing and eager to comment on each of them. But at what point do we draw a red line and say no. I do not think it demeans or detracts from our organization if we do not take a stand on every single issue.

That said I will not vote against the proposal. In the event that it passes I will still support SHAFR and its mission: the scholarly treatment of the history of American foreign relations..