Co-Written by Outten & Golden LLP Law Clerk Ryan Elias
On July 26th, President Trump issued a policy shift via Twitter laying out a ban on transgender individuals from serving "in any capacity in the U.S. Military." His reasoning: transgender service members detract from the military's focus on "decisive and overwhelming victory" and "burden" the military with "tremendous medical costs and disruption."
This policy shift runs contrary to evolving case law and is based on unfounded factual allegations that ignore the fact that transgender people serve in the military at nearly twice the rate of the general population.
Trans Rights History and Recent Developments:
In 2016, the United States joined 18 other countries in allowing transgender people to serve openly in the military. Then-Secretary of Defense Ash Carter announced that transgender individuals would be able to serve openly in the U.S. armed forces pending a one-year review process assessing whether and how the Defense Department should revise regulations and train service members, recruiters, human resources personnel, and commanders. This policy of allowing trans service members to openly serve in the military followed the repeal of the military's "Don't Ask, Don't Tell" policy in 2011. However, while the repeal of "Don't Ask, Don't Tell" allowed gay service members to serve openly, it had little-to-no effect on trans military members and their inability to serve openly.
Federal and state courts have stated in several opinions that discrimination based on a person's transgender status is synonymous with discrimination based upon a person's sex, in violation of federal and state law. For example, in Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008), the U.S. District Court for the District of Columbia held that an employer's discriminatory actions taken against a transgender employee based upon that employee's transgender status violated Title VII of the Civil Rights Act on the basis of sex discrimination. Bolstering the assertion that transgender discrimination is a form of sex discrimination, the EEOC issued its landmark decision in the 2012 Macy v. Holder, No. 0120120821, 2012 WL 1435995, at *4 (E.E.O.C. Apr. 20, 2012), case, in which the EEOC held that "claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition, and may therefore be processed" accordingly by the EEOC. Courts have even determined that a cisgender employee who is confronted by discrimination in the workplace stemming from his/her decision to hire a transgender employee is protected for retaliation purposes under Title VII. See Brandon v. Sage Corp., 808 F.3d 266 (5th Cir. 2015).
The progress on trans rights in the courts appears to be under attack by the Trump Administration. In just 187 days after his inauguration, President Trump and his Cabinet Secretaries have managed to (1) rescind the Obama-era Department of Education's Title IX guidelines requiring access to "sex-segregated facilities on the basis of gender identity rather than biological sex"; (2) appoint a Justice to the U.S. Supreme Court who has issued opinions to deny transgender prison inmates access to hormones, allowing an employer to terminate a transgender employee for "restroom safety," and recently wrote a dissent limiting the scope of Obergefell; (3) push back the original implementation deadline affording trans service members the right and ability to serve openly; and now (4) tweet to ban transgender service members from serving "in any capacity in the U.S. Military."
The Broader Impact of the New Policy:
Rolling back transgender rights is not simply a setback for the trans community, but a setback for all. President Trump is creating a precedent of changing policies based on a whim and without following longstanding protocol. As Senator John McCain stated: "There is no reason to force service members who are able to fight, train, and deploy to leave the military--regardless of their gender identity. We should all be guided by the principle that any American who wants to serve our country and is able to meet the standards should have the opportunity to do so--and should be treated as the patriots they are." If President Trump fails to see how these brave service members do not deserve equal protection under the law, it is hard to see where he will draw the line.
It also sends a dangerous message to the transgender community. Despite the progress made in the courts and in society at large, discrimination and violence against transgender individuals is still rampant in America. Recent data from GLAAD and the National Coalition of Anti-Violence Programs found that "55% of all reported LGBT homicide victims were transgender women." And discrimination for transgender employees in the workplace is just as prevalent, with the trans unemployment rate at double the rate of the general population and 26% of transgender employees reporting losing a job due to their transgender status.
Trump's Rationale for the New Policy Is Illogical:
In this morning's tweet, President Trump stated that military service by trans individuals detracts from the military's focus on "decisive and overwhelming victory" and would "burden" the military with "tremendous medical costs and disruption." However, a 2016 study commissioned by the Department of Defense conducted by RAND Corp. contradicts this. The study found that "[i]f the U.S. military decides to let transgender people serve openly, the number would likely be a small fraction of the total force and have minimal impact on readiness and health care costs." The study estimated a potential increase in military health care costs of approximately 0.13% (i.e. roughly one-tenth of one percent). This hardly seems like a "tremendous cost" as described by the President. The RAND Corp. study also examined the 18 other countries that already allow transgender individuals to serve openly and concluded that while instances of harassment and bullying have been reported, "these effects have been mitigated by having clear policies and comprehensive training."
Discrimination against Trans People in the Workforce Is Illegal:
Federal and state courts, as well as the EEOC, have recognized that employment discrimination on the basis of an individual's transgender status violates Title VII of the Civil Rights Act of 1964. See, e.g., Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008); Macy v. Holder, No. 0120120821, 2012 WL 1435995, at *4 (E.E.O.C. Apr. 20, 2012). In Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), the Eleventh Circuit found "A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. . . . There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms.'"
As noted previously, underlying recent court rulings is an understanding that discriminating against a trans employee simply because he or she is trans is a form of sex discrimination under federal law. It seems likely that if any private-sector employer implemented the same anti-trans policy that the President just tweeted, that employer would be found liable for illegally discriminating against trans individuals by nearly every court in the country. While Title VII does not explicitly protect service members, see, e.g., Mier v. Owens, 57 F.3d 747, 749 (9th Cir. 1995) ("Title VII does not protect military personnel."), the Equal Protection and Due Process Clauses of the Constitution do. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954) ("In view of our decision that the Constitution prohibits the states from [discriminating], it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government."). While the military is given greater deference than private entities to implement policies that may otherwise violate employment law, the military (or any area within the government) cannot implement a policy based in discrimination without just cause. Id. Given that the President's purported non-discriminatory reasons for this policy do not pass muster, the policy violates federal law.