“You have to exercise patience with people, but people are not going to understand the subject overnight.”
—-Sgt. Shane Ortega, helicopter crew chief in the Army’s 25th Infantry Division, speaking to the Washington Post about his legal battle with the U.S. military, which continues to classify him as a woman despite his transition to a man.
The reason we say that “hard cases make bad law” is that the toughest cases fall between the cracks in rules and regulations, and they all have cracks. The law seeks consistent precedents, so anomalous fact patterns threaten the integrity and efficiency of otherwise effective laws and rules that work well in the vast majority of situations. Yet those hard cases usually indicate flaws in policies, rules and laws, and sometimes point to the need for change.
Often, an organization, especially a bureaucratic one like the military, will deal with such disruptive cases by simply looking past the actual facts, and treating them “by the book.” Ortega represents a particularly glaring instance of this phenomenon, which in his case not only harms his career, but also makes the military appear rigid to the point of absurdity.
Yet, as his Ethical Quote of the Month indicates, he understands. Change is painful, and it takes time.
Sgt. Ortega has served three combat tours in the past decade in Iraq and Afghanistan, two as a Marine and one in the Army, the first two as a woman—he was born female— and the last one as a man. Pentagon rules still insist that transgender soldiers must be discharged from military service on medical grounds: the military regards such military personnel as suffering from a mental disorder. At this point, Ortega has been grounded while his lawyers at the ACLU battle to keep him in the service. Meanwhile, he is consigned to desk duty while living an existence that could have been envisioned by W.S. Gilbert or Pirandello.
Though he regards himself as a gay male, the Army regards him as a heterosexual woman. He holds a man’s military travel passport, based on the new Social Security card he received when he changed his name, but the military identifies him as a female in its computer system. The Army also requires him to wear a woman’s “dress blues” for official occasions. Since a psychiatrist ruled that Sgt. Ortega did not suffer from any mental or emotional defects that would interfere with his service, the Army is now trying to manufacture arguments for why he is unfit, suggesting that he and other transgender soldiers cannot serve in combat conditions because they rely on hormone treatments. Troops with other medication requirements, however, such as diabetics, are not disqualified from service. Ortega, moreover, experienced no problems arising from his gender reassignment in his last tour of duty. In eastern Afghanistan, Ortega operated as an assistant squad leader repairing aircraft for a Special Forces unit in a remote forward operating base. “You really learn it really plays no role. Nobody’s going to carry my gear,” he told the Washington Post. “It’s pretty hard-core equal treatment in a combat zone.”
Despite Ortega’s patience and understanding, the military can be counted upon to push his empathy to the limit. President Obama, typically risk averse, is choosing to avoid the public relations and political fall-out that would arise if he changed the military’s policies regarding transgender soldiers—after all, it’s not a large voting bloc, so they can be left in limbo indefinitely, or at least until the public gets over its “Ick!” reaction—and is thus passing the buck to the services, where he knows a resolution is likely to take years. Sgt. Ortega is doing what he can, speaking with elected officials, civilian groups and health professionals as well as in public forums.
If the military would follow the philosophy of the Ethics Incompleteness Principle* and just deal logically and fairly with the extreme anomaly that Ortega represents without having his case force the services into a full acceptance of transgender military personnel that their culture is not ready to accept, he could get on with his career and his life. This change, which, like the acceptance of blacks, women and gays in the military, is inevitable, will take time, and Ortega, a true army man, understands the culture he is part of. He also understands that the military doesn’t like hard cases, anomalies and exceptions, and would rather ignore them than let them erode rules, policies and traditions that once made sense, but no longer do.
His restraint is admirable, and his patience is remarkable.
Meanwhile, the Army is making him a cross-dresser.
*The Ethics Incompleteness Principle: Czech-born mathematician Kurt Gödel’s two Incompleteness Theorems, which relate to mathematical proofs, are merely the inspiration for this observation that applies to normative rules, systems, moral codes, laws and other principles. The human language is not sufficiently precise to define a rule that will work in every instance. There are always anomalies on the periphery of every normative system, no matter how sound or well articulated. If one responds to an anomaly by trying to amend the rule or system to accommodate it, the integrity of the rule or system is disturbed, and perhaps ruined. Yet if one stubbornly applies the rule or system without amendment to the anomaly anyway, one may reach an absurd conclusion or an unjust result. The Ethics Incompleteness Principle suggests that when a system or rule doesn’t seem to work well when applied to an unexpected or unusual situation, the wise response is to abandon the system or rule—in that one anomalous case only— and use basic ethics principles and analysis to find the best solution. Then return to the system and rules as they were, without altering them to make the treatment of the anomalous situation “consistent.”
No system or rule is going to work equally well with every possible scenario, which is why committing to a single ethical system is folly, and why it is important to keep basic ethical values in mind in case a pre-determined formula for determining what is right breaks down.
Spark, graphics and facts: Washington Post
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