Kalpana Kotagal, Partner & member of the firm’s Civil Rights & Employment practice group, and Chair of the firm’s Hiring and Diversity Committee, Cohen Milstein Sellers & Toll:
President Trump’s policy-by-tweet banning transgender Americans from serving in the military is a head-scratcher – legally, as well as politically.
The president’s tweets do not amount to any change in Pentagon policy toward transgender service members. Moreover, moving forward with such a regressive policy goes against the president’s own military leaders who have affirmed their support for transgender service members in their ranks.
Some reports indicate that White House Counsel has approved official military guidance for implementing the ban. If the proposal is codified, it will certainly face legal challenge—leading LGBTQ advocacy groups, Lambda Legal and OutServe-Servicemembers Legal Defense Network (SLDN), have already pledged to file suit.
Federal courts have demonstrated their willingness to dismantle policies that discriminate against transgender individuals, drawing upon the Supreme Court’s decision nearly 30 years ago, in Price Waterhouse v. Hopkins. In that case, the Court established that employment discrimination for failure to conform to sex-stereotypes violates Title VII of the Civil Rights Act of 1964. In a series of recent cases, courts have applied similar reasoning to hold that discrimination against transgender individuals is illegal. This protection extends to those employed by military agencies, as we saw in 2015’s Lusardi v. Department of the Army. This line of authority raises real questions as to whether any ban against transgender servicemembers would withstand legal scrutiny.
The law, increasingly, does not tolerate discrimination on the basis of gender identity and, while there is more work to do before the LGBTQ community stands on even ground, Americans increasingly support civil rights for transgender individuals. Two new polls show that Americans strongly oppose President Trump’s regressive proposal—in fact, an overwhelming majority of adults nationwide support trans people serving in the military. And in response to the proposed ban, several major police departments across the country have encouraged transgender people who are dismissed from the military to join their ranks.
President Trump is seeking to roll back the clock with his antiquated view of transgender individuals. It’s clear that the president is out of step with where our military and the rest of our country are headed.
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