Senate Trying to Block Military Transfers Based on Potentially Discriminatory State Laws

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Color Guard members march at the San Diego Pride Parade.
Color Guard members from the U.S. Navy and U.S. Marine Corps march at the 2018 San Diego Pride Parade. (U.S. Navy Photo by Mass Communication Specialist 3rd Class Nicholas Burgains)

The military would be barred from considering state laws in deciding where to station service members under an amendment that was included in the Senate's version of the annual defense policy bill.

The amendment comes after Military.com reported in May that the Army was drafting a policy that could allow soldiers to request a move if state or local laws discriminate against them based on gender, sex, religion, race or pregnancy.

During a closed-door meeting last month, the Senate Armed Services Committee voted 18-8 to prohibit the Pentagon from using the "agreement or disagreement of a member of the Armed Forces with the State laws and regulations applicable to any duty station when determining the duty assignment of the member."

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"Allowing our service members to veto the needs of the service because they disagree with state or local laws could lead to a sorting of the military along ideological lines that would devastate readiness, unit cohesion, and the American people's respect for their military," a spokesperson for Sen. Dan Sullivan, R-Alaska, the amendment's sponsor, said in an emailed statement to Military.com.

The amendment is meant "to preemptively tell the Department of Defense that individual service members should not have veto power over their duty station assignment because they disagree with laws and regulations in the state or community in which they are being assigned," the spokesperson added.

The vote added the language to the committee's version of the National Defense Authorization Act, or NDAA. While the committee released a summary of the bill last month, it did not release the full text until Monday.

The bill must still be voted on by the full Senate and then reconciled with the House's version of the NDAA before becoming law.

The House Armed Services Committee last month rejected a similar amendment that was offered by Rep. Matt Gaetz, R-Fla., during the committee's consideration of its NDAA in a largely party-line, 28-30 vote.

The draft Army policy, which would tweak the service's existing compassionate reassignment policy meant to help in family emergencies or similar hardships, was spurred by a raft of state laws targeting LGBTQ people, such as Florida's so-called "Don't Say Gay" bill that bans public school teachers from mentioning sexual orientation or gender identity at all in kindergarten through third grade and "in a manner that is not age-appropriate or developmentally appropriate" in grades beyond that.

The Navy, Marine Corps and Air Force have pointed to existing policies on requesting transfers they say service members who feel discriminated against could use, though there has been no evidence transfers have been used that way.

The proposed Army policy could also help women worried about abortion access as many states ban or severely restrict abortions following a Supreme Court ruling last month, though the length of time it takes to transfer duty stations would make it difficult for a woman to relocate between finding out she's pregnant and having the pregnancy come to term.

After the Supreme Court ruling, Defense Secretary Lloyd Austin said the department was "evaluating our policies to ensure we continue to provide seamless access to reproductive health care as permitted by federal law."

Because the Senate Armed Services Committee is split evenly between Democrats and Republicans, and tie votes fail, most controversial amendments were voted down during the committee's consideration of the NDAA.

But five senators on the Democratic side of the dais voted for Sullivan's amendment, along with every Republican on the committee, giving it enough support to pass.

Sen. Tim Kaine, D-Va., said he supported the amendment because troops need to be stationed wherever they are most needed for the defense of the country.

"Members of the US military frequently express a preference for assignments based on multiple factors. As the father of a Marine, I know that a primary factor is family considerations," Kaine said in an emailed statement to Military.com. "These considerations are important, and I'm glad military personnel officials consider these preferences. But ultimately military personnel officials make the decisions best for the defense mission. That is as it should be."

Spokespeople for Sens. Gary Peters, D-Mich.; Joe Manchin, D-W.Va.; Mark Kelly, D-Ariz.; and Angus King of Maine, an independent who caucuses with Democrats, did not respond to Military.com's requests for comment on why they supported the amendment or whether they wanted to block the draft Army policy.

Senate Armed Services Committee Chairman Jack Reed, D-R.I., who opposed Sullivan's amendment, told Military.com he did not think Congress should weigh in while the department continues to review the effects of state laws.

"DoD is trying to work out what their authority is, what they can do and what they should do," Reed said. "So we should wait for that first before we make a conclusion."

-- Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on Twitter @reporterkheel.

Related: Soldiers Facing Discrimination from State Laws Could Request Transfers Under Draft Army Policy

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