The American public is demanding action to restore meritocracy in our military, and to stop toxic diversity, equity, and inclusion ( DEI ) mandates that discriminate based on race.
To achieve these objectives, the House edition of the National Defense Authorization Act for 2025 includes some actions. However, a mistaken, well-intentioned clause in the House bill would improve the woke plan rather than attenuate it.
Sec. 523 of HR 8070 was billed as a “meritocracy” provision, but its lack of precision will allow Department of Defense ( DOD ) bureaucrats to continue discriminating based on race in military personnel actions. Additionally, military ideologues will use the unknown word” sex” to harm women and advance extreme gender ideology. Unexpected consequences are important, particularly when unknown words are written down in law.
In Students for Fair Admissions v. Harvard and UNC, Biden’s Department of Defense argued before the Supreme Court that achieving racist and gender-specific admissions to the military service academy and to human colleges hosting ROTC programs was essential to strike a balance between the agent corps’ and joined force’s racist and physical makeup. Without that stability, they argued, majority troops would be less likely to follow purchases, and our national security would be imperiled. The DOD continues to assert that “diversity is a proper imperative” despite recent legal challenges to racial prejudice at service academies.
As passed by the House, the NDAA “merit delivery” directs Army to center personnel actions on “individual significance and demonstrated effectiveness … without reference to the political involvement, race, color, religion, national origin, sex, or marital status…” of the service member.
At first blush, this speech seems like it will prevent DOD’s unfair practices. However, it becomes clear that if the House-Senate conference committee keeps this provision in the final bill, it may give DOD legislative cover to maintain its racial discriminatory practices and grant men access to previously reserved private spaces for women.
Unfortunately, the NDAA’s “merit provision” is very similar to DOD’s current Military Equal Opportunity ( MEO ) program. Under the MEO system, the Biden administration has been able to grant racial and sexual interests in personnel choices such as offers, control variety, and assignments, as well as granting protected status to “gender identity” and sexual preference.
The time, effort, and money spent by DOD on celebrating “gender identity” has made the military an attractive employer for those wishing to undergo transgender surgery on the taxpayer’s dime. DOD’s policy allows men who believe they are women to dress like women, use women’s berthing and bathing facilities, and serve under physical standards applicable to women, with or without genital surgery.
The military’s obsession with advancing DEI has created an inability to meet recruiting goals, lowered morale, resulted in less time for training for essential combat tasks, and a decrease in readiness.
Before it lands on President Biden’s desk, the NDAA needs to be amended in three ways: first, to establish a true meritocracy, stop the DOD from using race and sex as proxies for merit, and restore biological reality:
First, personnel actions need to be based exclusively on merit. The House-passed version of the NDAA, as it is currently written, requires DOD to take into account “merit and demonstrated performance” in personnel actions, but it does n’t mandate that those actions be solely based on “merit and demonstrated performance.”
Without this change, the DOD is free to take into account additional irrelevant and irrelevant factors in order to achieve their DEI goals if they do so in part along with “merit and demonstrated performance.”
Second, merit needs to be defined by specific objective and measurable criteria, such as training, experience, and special skill qualifications. Importantly, the definition needs to specifically exclude race, sex, “gender identity”, “gender expression”, and other irrelevant factors.
The provision’s “without regard” language makes a weak attempt to address this issue, but it wo n’t get DOD to stop its discriminatory practices. DoD idealogues will continue to consider race and sex when determining a service member’s merit, unless Congress specifically forbids it. In the DOD’s worldview, a person’s skin color, sex, “gender identity”, or “gender expression” are just as important as technical competence. ” Diversity”, according to DOD, “is our strength”. Congress should define what constitutes merit as the only way to stop this practice.
Third, Congress must preclude DOD from interpreting” sex” to encompass “gender identity” or “gender expression”. The term” sex” needs to be defined in terms of a person’s natal biological reality, not “gender identity” or a bureaucratic “gender marker”.
Without these changes, the DOD will seek to circumvent Congress’s directives. In other situations where the discussion centered on how to avoid statutory language that stifled the DOD’s preferred policies, I’ve had meetings with senior Pentagon leaders. To address this problem, the same kind of meeting will be held.
The Administrative Procedure Act does not allow for judicial review of DOD’s internal rulemaking, in contrast to the DOE’s expansion of the definition of” sex” in Title IX, which has been enjoined by at least two federal courts. So DOD has the freedom to interpret the NDAA’s loose and undefinable language in a way that will encourage the advancement of their DEI agenda. The issue wo n’t be resolved by the federal courts. Until Congress changes it, DOD’s interpretation will continue to be in place.
The Biden administration’s willingness to be included in the merit provision is perhaps the strongest argument against it. The administration’s list of NDAA provisions would have been on it if the White House or DOD had thought the meritocracy provision would slow down their efforts to continue discriminating against people based on race or impede their efforts to use the military to advance their goals. It was n’t.
If only one word and a few definitions had been provided, congressional Republicans could have closed the gaps that DOD will use to continue its divisive identity politics. The House of Representatives ‘ openness, without a doubt, gave the Biden administration a smile. What is wrong with this picture?
William Woodruff is a retired Army lawyer and professor of law emeritus. As an Army lawyer, he served as chief of the litigation division and was responsible for defending the Army’s interests in civil litigation involving Army policies, programs, and operations.
