For months, Americans have been pressuring Congress to do something about demoralizing, divisive wokeism in the military.  The Center for Military Readiness is pleased to report that the House version of the National Defense Authorization Act (NDAA) for 2025 incorporated more than a few good ideas that CMR recommended in January. 

However, one misleading provision of the House defense bill would, for the first time, give congressional approval to DoD policies that have imposed transgender ideology on our military.  Meanwhile, on the Senate side, Armed Services Committee (SASC) members dragged out of the legislative dustbin a “Draft Our Daughters” mandate for young women to register with Selective Service. 

The Senate’s “Draft Our Daughters” provision, approved behind closed doors, was announced in their NDAA Executive Summary, but the full SASC Report remains undisclosed.

As of now, both versions of the bill are marred by anti-women and anti-military measures that House/Senate Conferees must delete or amend before final passage into law. 

A.  Sec. 523 – Undefined “Meritocracy” Amendment Would Make Wokeism Worse

As reported in CMR’s Interim NDAA Report No. 2, House members working on the NDAA for 2025 approved several positive measures addressing issues such as:

• Racial discrimination at the military service academies;
• Discriminatory “diversity, equity, & inclusion” programs;
• Chief Diversity Officers and DEI offices;
• Toxic critical race theory (CRT) instructions in DoD schools;
• Mutilating surgeries for adults and children, which cannot change sex;
• “Climate change” executive orders and electric vehicle mandates;
• COVID-19 mandates and reimbursements for servicemembers unfairly punished;
• LGB/Transgender surgeries and treatments, unapproved flags, and drag shows;
• Use of DoD funds for objectionable purposes, such as time off and transportation to obtain abortions across state lines. 
• Terrorist and foreign actor infiltration of DoD facilities

Except for restraints on impractical electric vehicles, none of these provisions would matter if Sec. 523 of the House-passed NDAA, titled “Merit-Based Principles for Military Personnel Decisions in the DoD” is retained by the House/Senate Conference and enacted in law. 

 Misleading “Merit” Measure Lacks Key Definitions

The problem is that Sec. 523 of H.R. 8070 lacks specific language and clear definitions to implement congressional intent to affirm meritocracy and end racial discrimination. 

As a result, divergent interpretations will allow Pentagon officials to continue discriminating without interference from Congress or the Courts, and to push the sex-denying “gender identity” agenda as far as radical transgender activists want it to go.

Sec. 523 reads, in part,

“—The Secretary of Defense shall ensure that each personnel decision regarding a covered member, including military accession, promotion, and command selection, is— (1) based on the individual merit and demonstrated performance of the covered member; [and] (2) without regard to the political affiliation, race, color, religion, national origin, sex, or marital status, of the covered member . . .” (emphasis added)

This legislation, unfortunately, lacks one clarifying word and two definitions that would prevent DoD officials from interpreting their way around the clear language of the statute and the expressed intent of Congress.  Three areas of concern, highlighted above, are as follows: 

1.  For purposes of clarity, the legislation requires a word like “exclusively” or “solely” just before “(1) based on individual merit . . .”  Without such a word, the Defense Department will allow consideration of individual merit and performance, but also assign higher priority to other superficial factors, such as race-conscious designators to meet DEI demographic quotas. 

2.  The legislation also requires a definition for the word “merit” that explicitly excludes consideration of irrelevant factors such as race, ethnicity, or skin color. 

• Absence of a definition for “merit” creates a loophole that the Defense Department will exploit to meet race-conscious DEI mandates.  This is because the DoD considers “race” and other superficial factors to be legitimate proxies for “merit” when determining an individual’s “merit, fitness, capability, and performance.”

• The Department of Justice, while presenting oral arguments before the Supreme Court in a landmark case challenging racial discrimination in higher education, claimed that racially discriminatory practices at the military service academies and ROTC programs were justifiable because, as DoD keeps insisting without evidence, “Diversity is a strategic imperative.”  (Students for Fair Admissions (SFFA) v. Harvard & the University of N. Carolina, 2023)

• In practice, despite numerous denials, the Department of Defense is acting on the belief that a person’s race, sexual orientation, sex, or gender identity – factors measured to promote “diversity” – are more important than a person’s merit, demonstrated performance, and competence to do the job. 

• The “without regard” language in Sec. 523 does not solve the problem.  The DoD will cite it to preclude use of race and other factors as separate items in the personnel decision-making process.  But since those factors are already baked into the undefined “merit” factor, DoD will claim with a straight face that they are not using those irrelevant and improper factors in their personnel decision-making process.

3.  Sec. 523 would prohibit discrimination on the basis of “sex,” without defining the word “sex.”  DoD bureaucrats, therefore, will define “sex” as they wish, ratcheting up radicalism with the full authority of statutory law.  This would have far-reaching, potentially irreversible consequences.  For example:  

• Sec. 523 would prohibit “sex” discrimination without a definition of sex that is based on biological science, and does not include or encompass gender identity, gender expression, transgender status, or sexual orientation.  This would set in political stone DoD’s gender ideology and transgender policies that Presidents Barack Obama and Joe Biden imposed in 2016 and 2021.

•  Theoretically, a new President could revoke such mandates by issuing different orders, but it would be extremely difficult to revoke anti-women transgender policies without another act of Congress to define what a woman is.

• Prohibiting all sex discrimination, however defined or undefined, precludes DoD from making any accommodations based on male/female biological differences.  Even with a definition tied to biological realities, Congress needs to allow for different treatment of men and women, especially in close combat (infantry) units where physical sex differences matter.

• The Selective Service Act, for example, is a separate law that respects differences between men and women.  A 2015 Marine Corps field study found that in 69% of combat-simulating tasks, average all-male units outperformed mixed-sex teams with highly qualified women.  Treating men and women exactly the same regardless of differences in speed, strength, and endurance will weaken the lethality of the military and compromise national security.

The solution is to:

a)  Affirm the definition of biological sex to distinguish between males and females;

b)  Provide for sex-specific berthing and personal hygiene facilities;

c)  Prohibit males from using facilities reserved for females, and vice versa;

d)  Prohibit males from competing on women’s military service academy athletic teams;

e)  Provide for sex-related assignments if they are relevant in occupational specialties with  gender-suited tasks, such as Female Engagement Teams (FETs); and

f)  Eliminate DEI programs and pressures to meet unneeded female quotas.

It is significant to note that the Biden White House, which released a Statement of Administrative Policy opposing other positive provisions in the House NDAA, H.R. 8070, did not include Sec. 523 on its legislative hit list. 

Why would they?  Sec. 523, enacted by Congress in law, would allow the Defense Department to interpret key undefined terms in ways that affirm and expand current woke policies.  DoD could even make the argument that Congress directed this!

Unless House/Senate Conferees correct the three problems with Sec. 523 mentioned above, or drop the measure all together, congressionally authorized wokeism will impose more extreme mandates on the military, doing irreparable harm to the institution as woke policies always do.

B.  Bostock and Beyond: More Extremes Ahead

In the Supreme Court’s unfortunate 2020 Bostock v. Clayton County decision, the Court ruled that a funeral home employer was discriminating on the basis of sex because he allowed women, but not men, to wear dresses in the workplace.  The Court did not intend the Bostock ruling to be extended beyond employment:

• Elaine Donnelly, The Federalist:  Bostock Ruling Shouldn't Make The Military A Transgender Free-For-All

The Court’s intentions, however, did not deter the Department of Education from issuing hotly contested regulations that have redefined Title IX and are destroying women’s sports.  Using the word “sex” without defining it in terms of biology, not gender identity, is like playing with fire with women and girls getting burned. 

Similar harm would occur if the undefined word “sex” in Sec. 523, which would be stretched and redefined to include “gender identity,” is included in the NDAA.  DoD officials would be free to continue current policies mandating that women must accept men in their private spaces and showers by citing that section of law, not just regulations.  Next would come new mandates to accommodate men on military women’s athletic teams, if that hasn’t happened already.

As CMR Legal Counsel Prof. William Woodruff has explained in The Federalist, the Department of Defense is different from the Department of Education, which has expanded the definition of “sex” in Title IX and been enjoined by at least two federal courts.

• Unlike the DoE, DoD’s internal rulemaking process is not subject to the procedural hurdles of the Administrative Procedure Act.  Thus, DoD will “interpret” the loose and undefined language of the NDAA in a manner that will allow them to continue racial and sex-related preferences unhindered and to keep imposing controversial experiments with sexual equality and “gender identity.”

• Several lawsuits and twenty state Attorneys General have challenged the DoE’s redefinition of “sex” to include “gender identity.”  If the same controversies arise in the military, most likely after the election, it would not be possible for potential Plaintiffs to challenge DoD’s implementation of Sec. 523 in the same way that Plaintiffs have challenged DoE’s redefinition of Title IX regulations.

• Anyone harmed by Sec. 523 would have to await DoD’s full implementation of the defense bill’s Sec. 523 policy in ways that harm an individual service member.  Even then, it would be extremely difficult for an individual service member to gather evidence and to achieve standing to sue. 

Bottom Line:  Federal courts will not solve problems that Sec. 523 of the NDAA creates.

C.  What Authorizes Current Policies?

Current DoD transgender policies were imposed administratively during the Obama Administration.  The march toward wokeism started with DOD Instruction 1350.02, the Defense Department’s Military Equal Opportunity (MEO) program, and picked up speed with subsequent Executive Orders and Directives. 

• DoDI 1350.02 includes a section mandating meritocracy in the military, but also includes explicit language that added “sexual orientation” as a non-discrimination category in 2015. 

• Initially, the Pentagon denied that the change would lead to transgenders in the military, but as CMR predicted at the time, in 2016 the MEO policy was amended again to include “gender identity” as an MEO non-discrimination category. 

• The language of Sec. 523 tracks very closely with DoDI 1350.02, even though it does not explicitly mention “gender identity” as the DoD Instruction does.  The lack of transparency should fool no one. 

If Sec. 523 in its current form is enacted in law, the Pentagon will have congressionally authorized statutory cover to continue discriminatory policies and to push the boundaries of ‘gender identity’ mandates even further than the Biden Administration has pushed them since 2021:

• CMR: Biden Pentagon Quietly Expands Woke Transgender Policies in the Military

Regardless of good intentions, Sec. 523 in the House NDAA would not affirm “merit.”  It is full of unseen legal surprises that the current administration, which seems fascinated with drag queens and transgender appointees, would use to reinforce wokeism in the military, not end it.

D.  How Did This Happen?

Congress has never voted for current woke policies that are harming both women and men in the military – until now.  The title of Sec. 523 suggested it was a “meritocracy” amendment, but its simplistic language, lacking clear definitions, deserved more scrutiny than it received.

When the measure came up for a Roll Call vote in Committee, the short synopsis describing the brief legislation didn’t even mention the word “sex.”  All it said was, “. . . “military accessions, promotions, and command selections [shall] be based on merit and demonstrated performance and without regard to race and other subjective criteria.” (emphasis added)

The synopsis sounded harmless and even beneficial, but in the post-Bostock world, any legislation invoking “sex” must define what a woman is.  Sec. 523 has no such language, but it was approved in committee on a straight partisan vote, 30-28.

More Questions About Sec. 523

Sec. 523 also would prohibit discrimination on the basis of “political affiliation” and “marital status.” 

• It is unclear what “political affiliation” means in this context.  Does the phrase relate to personnel who, like Army veteran and Fox News author Pete Hegseth, find themselves labelled as “patriotic extremists” in uniform?”  If so, would it also prohibit discrimination against leftist radicals promoting CRT or an alarming rise in antisemitism?

• The phrase “marital status” as a non-discrimination factor in the military also raises questions.  Could it be construed as relating to IVF services for unmarried couples?  Without definitions, the meaning is unclear.

There is no doubt, however, that if the House-Senate conference committee retains Sec. 523 and it is signed into law, the DoD will continue to use racial preferences, which they see as “merit,” and the Biden administration will have unprecedented statutory authority to further advance radical social policies in the military.

The new law would allow DoD to define sexuality in terms of subjective identity, not biology, and give DoD’s transgender ideology and policies the imprimatur of congressional approval. 

Congress has never voted for anything like this before, and what will be seen as betrayal is even worse in light of expectations heightened by rising opposition to wokeism in our military. 

Now the question is, will Congress fix the damage before it is too late?

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Prepared by the Center for Military Readiness, an independent non-partisan public policy organization, founded in 1993, which reports on and analyzes military/social issues.  More information is available at www.cmrlink.org.  To make a tax-deductible contribution to CMR, click here.