NDAA ‘Merit Provision’ Enables More Military Identity Politics

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.

The House version of the National Defense Authorization Act for 2025 includes some measures to accomplish these goals. One misguided though well-intended provision in the House bill, however, would advance the woke agenda instead of mitigating 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. Pentagon ideologues will also interpret the undefined word “sex” in ways that harm women and promote radical gender ideology. Unintended consequences matter, especially when undefined words are enshrined in law.

Biden’s Department of Defense argued before the Supreme Court in Students for Fair Admissions v. Harvard and UNC, that granting racial and “gender preferences” in admissions to the Military Service Academies and to civilian colleges hosting ROTC programs was necessary to achieve a balance between the racial and sexual makeup of the enlisted force and the officer corps. Without that balance, they argued, minority soldiers would be less likely to follow orders, and our national defense would be imperiled. Despite new litigation challenging racial discrimination at the service academies, the DOD is still claiming that “diversity is a strategic imperative.”

As passed by the House, the NDAA “merit provision” directs DOD to base personnel actions on “individual merit and demonstrated performance … without regard to the political affiliation, race, color, religion, national origin, sex, or marital status…” of the service member.

At first blush, this language seems like it will stop DOD’s discriminatory practices. Upon further analysis, however, it is apparent that if the House-Senate conference committee retains this provision in the final bill, it will give DOD congressional cover to continue its racially discriminatory practices and allow men to occupy private spaces previously reserved for women.

Unfortunately, the NDAA’s “merit provision” is very similar to DOD’s current Military Equal Opportunity (MEO) program. Under the MEO program, the Biden administration has been able to grant racial and sexual preferences in personnel decisions such as promotions, command selection, and assignments, as well as granting protected status to “gender identity” and sexual orientation.

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.

To establish a true meritocracy, stop the DOD from using race and sex as proxies for merit, and reestablish biological reality, the NDAA needs to be amended in three ways before it lands on President Biden’s desk:

First, personnel actions need to be based exclusively on merit. As currently written, the House-passed version of the NDAA requires DOD to consider “merit and demonstrated performance” in personnel actions, but it does not require those actions to be based only on “merit and demonstrated performance.”

Without this change, the DOD is free to consider other extraneous and irrelevant criteria to meet their DEI goals if they also consider “merit and demonstrated performance” in some degree.

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 “without regard” language of the provision is a weak attempt to address this point but is not sufficient to force DOD to abandon its discriminatory policies. Unless explicitly ordered from doing so by Congress, DOD idealogues will continue to view race and sex when factoring a service member’s merit. 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.” The only way to end this practice is for Congress to explicitly define what constitutes merit.

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. I’ve been in meetings with senior Pentagon leaders in other contexts where the discussion centered on how to get around statutory language that hindered the DOD’s preferred policies. That same type of meeting will take place to address this issue.

Unlike the DOE’s expansion of the definition of “sex” in Title IX, which has been enjoined by at least two federal courts, DOD’s internal rulemaking is not subject to judicial review under the Administrative Procedure Act. Thus, DOD is free to interpret the loose and undefined language in the NDAA in a manner that will allow them to continue to promote their DEI agenda. The federal courts will not solve the problem. DOD’s interpretation will prevail unless and until Congress changes it.

Perhaps the strongest evidence that the merit provision will not stop DOD’s discriminatory practices is that the Biden administration is not opposed to its inclusion. If the White House or DOD thought that the meritocracy provision in the NDAA would slow down their efforts to continue to discriminate based on race or hinder their efforts to use the military to further their agenda, it would have been on the administration’s list of NDAA provisions that it opposes. It wasn’t.

If congressional Republicans had included a single word and clarified a few definitions, they could have closed the loopholes DOD will exploit to continue their divisive identity politics. The House of Representatives left the loopholes open, no doubt causing Biden administration officials to smile. What is wrong with this picture?

William Woodruff is a professor of law emeritus and a retired Army lawyer. 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.