Analysis: Is Trump’s Ban on Transgender Military Service Legal?

  Last Updated: July 28, 2017 at 1:26 pm
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Amid an already tumultuous Presidency beleaguered by numerous investigations, hundreds of scandals, and immeasurable lack of leadership and transparency, Donald Trump took to Twitter yesterday morning to attack Transgender Americans serving in the United States military.

True to form, Trump stunned the world (and even many his own administration) with a string of early morning tweets announcing that his administration “will not accept or allow transgender individuals to serve in any capacity in the United States military.”

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On August 19th 2015, Secretary of Defense Ash Carter announced that transgender service members would be allowed to serve openly beginning in May of the following year. There are now somewhere between 15,500 and 17,000 transgender men and women currently serving in the armed forces. In fact, as noted in a 2015 LA Times article, a 2014 UCLA study found that transgender individuals are twice as likely to serve in the armed forces than the rest of the general population.

So the question is this: Is it legal to discrimination against one class of Americans serving in the United States armed forces? But at the heart of this question is another, much more simple question – is it legal to discriminate against a class of federal employees because of their gender?

In considering this question, we looked at two different types of law – case law and civil law. Case law is law created through court opinions – often times a Federal Court of Appeals or the Supreme Court. Civil law is of course law created through traditional legislation at either the federal, state, or local level. For this analysis we’re only going to be looking at Federal case and civil law.

Supreme Court Case Law: United States v. Windsor

Right from the start we couldn’t help but think back to the last major LGBT civil rights case to make it to the Supreme Court. The 2013 United States v. Windsor case sought to challenge the Defense of Marriage Act – also known as DOMA. The Defense of Marriage act held that the federal government could in no way recognize marriage as anything other than a man and a woman.

The important part of this case though, at least in relation to our analysis, is not so much the ruling striking down the Defense of Marriage Act, as it is the questions that were asked by one justice in particular during the hearing…

During the hearing, Justice Roberts chimed in saying “I’m not sure it’s necessary to get into sexual orientation to resolve this case,” he said. “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”

As noted in a New York Times article at the time, this comment was a somewhat thought provoking statement coming from one of the court’s more conservative Justices. What Justice Roberts is arguing here is that the question of whether DOMA was constitutional was not really a question of whether it discriminated on the basis of sexual orientation, but whether it discriminated on the basis of sex – or gender.

While it’s true that the court eventually issued a much more limited ruling on the basis of the 5th Amendment’s Due Process Clause, had it ruled on the basis of gender discrimination, it would have based it’s opinion on the 14th Amendment’s Equal Protection Clause. This is where it gets hairy…

The Equal Protection Clause provides that no state shall deny to any person within its jurisdiction “the equal protection of the laws”. But the 14th Amendment only applies to state and local jurisdictions – not the federal government. While the Equal Protection Clause itself only applies to state and local governments, the Supreme Court held in Bolling v. Sharpe (1954) that the Due Process Clause of the Fifth Amendment nonetheless imposes various equal protection requirements on the federal government.

So as you can see… the argument set out in the Windsor ruling is rather circular. But the takeaway here is that Justice Roberts seemed to argue that this type of discrimination would have been unconstitutional on the basis of the Equal Protection Clause. He still serves on the Supreme Court, so it’s likely that he could join the majority in ruling that Mr. Trump’s ban on transgender service members is unconstitutional on the basis of the Equal Protection Clause.

Supreme Court Case Law: Price Waterhouse v. Hopkins

In the 1989 case of Price Waterhouse v. Hopkins, the Supreme Court recognized that employment discrimination based on sex stereotypes (e.g., assumptions and/or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful sex discrimination under the 1964 Civil Rights Act. Price Waterhouse had denied Ann Hopkins a promotion in part because other partners at the firm felt that she did not act as woman should act. She was told, among other things, that she needed to “walk more femininely, talk more femininely, [and] dress more femininely” in order to secure a partnership. The Court found that this constituted evidence of sex discrimination as “[i]n the . . . context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” The Court further explained that Title VII’s “because of sex” provision strikes at the “entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”

Supreme Court Case Law: Oncale v. Sundowner Offshore Servs.

The Supreme Court held that same-sex harassment is sex discrimination under Title VII. Justice Scalia noted in the majority opinion that, while same-sex harassment was “assuredly not the principal evil Congress was concerned with when it enacted Title VII … statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits ‘discriminat[ion] . . . because of . . . sex.’ [This] . . . must extend to [sex-based] discrimination of any kind that meets the statutory requirements.”

Federal Appeals Court Case Law: SmithKline v. Abbott

In 2013, a 3-judge panel of the Ninth Circuit Court of Appeals in SmithKline v. Abbott considered what standard of review to apply when determining whether sexual orientation can be used in selecting the members of a jury. It ruled unanimously on January 21, 2014, based on its reading of Windsor, that distinctions based on sexual orientation are subject to the “heightened scrutiny” standard of review and that “equal protection prohibits peremptory strikes based on sexual orientation”. The Ninth Circuit wrote:

“Windsor review is not rational basis review. In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.”

The Ninth Circuit court also observed that the majority in Windsor shifted the burden from the same-sex couple to the government when it wrote that the government has to “justify disparate treatment of the group.”

This ruling in SmithKline v. Abbott would almost inevitably play a central role in deciding whether Mr. Trump’s decision to ban transgender people from serving in the military is unconstitutional based on the equal protection clause.

Federal Civil Law: Civil Rights Act of 1964

That brings us to the Civil Rights Act of 1964, which outlaws discrimination based on race, color, religion, sex, or national origin. It applies to voter registration requirements, racial segregation in schools, employment, and public accommodations. It exacts much of it’s legal authority from the Equal Protection Clause, which exacts much of it’s authority from the Due Process Clause. The test for proving discrimination here is pretty cut and dry:

1. Does the Civil Rights Act of 1964 apply to federal employees?
The Civil Rights Act of 1964 applies to all employees – including those employed by a Federal, State, or Local government, as well as private employers. Section 717 states:

All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5 [United States Code], in executive agencies [originally, other than the General Accounting Office] as defined in section 105 of Title 5 [United States Code] (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Regulatory Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal Government having positions in the competitive service, in the Smithsonian Institution, and in the Government Printing Office, the Government Accountability Office, and the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.

2. Would gender identity qualify has discrimination based on sex?
Under both the Bush and Obama Administrations, the Equal Employment Opportunity Commission tried and won numerous cases in appeals courts across the nation arguing that discrimination based on gender identity constitutes discrimination as defined under the 1964 Civil Rights Act on the basis of sex. Many of these cases rely on a previous ruling by the Supreme Court – the case of Price Waterhouse v. Hopkins. The EEOC is the agency tasked with prosecuting cases of employment discrimination under the 1964 Civil Rights Act.

The case law here is vast:

In Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), the plaintiff, a transgender female, brought a claim under 42 U.S.C. § 1983 alleging unlawful discrimination based on sex in violation of the Equal Protection Clause when she was terminated from her position with the Georgia General Assembly. Relying on Price Waterhouse and other Title VII precedent, the court concluded that the defendant discriminated against the plaintiff based on her sex by terminating her because she was transitioning from male to female.

In Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005), the Plaintiff, who “was a male-to-female transsexual who was living as a male while on duty but often lived as a woman off duty [and] had a reputation throughout the police department as a homosexual, bisexual or cross-dresser,” alleged he was demoted because of his failure to conform to sex stereotypes. The court held that this stated a claim of sex discrimination under Title VII.

In Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), the plaintiff alleged that he was suspended based on sex after he began to express a more feminine appearance and notified his employer that he would eventually undergo a complete physical transformation from male to female. The court held that Title VII prohibits discrimination against transgender individuals based on gender stereotyping.

In Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000), citing Title VII case law, the court concluded that a transgender plaintiff, who was biologically male, stated a claim of sex discrimination under the Equal Credit Opportunity Act by alleging that he was denied a loan application because he was dressed in traditionally female attire.

In Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000). citing Title VII case law, the court concluded that a transgender woman stated a claim of sex discrimination under the Gender Motivated Violence Act based on the perception that she was a “man who ‘failed to act like one.'” The court noted that “the initial approach” taken in earlier federal appellate Title VII cases rejecting claims by transgender plaintiffs “has been overruled by the language and logic of Price Waterhouse.”

In Baker v. Aetna Life Ins., et al., __ F. Supp. 3d __, 2017 WL 131658 (N.D. Tex. Jan. 13, 2017), the court ruled that an employee stated a claim against her employer for sex discrimination in violation of Title VII based on denial of coverage under employer-provided health insurance plan for costs associated with surgery related to gender transition.

Mickens v. General Electric Co., No. 3:16CV-00603-JHM, 2016 WL 7015665 (W.D. Ky.  Nov. 29, 2016). Rejecting the employer’s argument that discrimination based on transgender status is not actionable under Title VII, the court cited Sixth Circuit precedent recognizing that, in light of Price Waterhouse, the prohibition against gender discrimination in Title VII “can extend to certain situations where the plaintiff fails to conform to stereotypical gender norms.”

Roberts v. Clark Cty. Sch. Dist., No. 2:15-cv-00388-JAD-PAL, 2016 WL 5843046 (D. Nev. Oct. 4, 2016). Expressly adopting the EEOC’s holdings in Macy and Lusardi, the court ruled that plaintiff, a transgender school police officer, was subjected to sex discrimination in violation of Title VII when he was told by his employer that he could not use either the men’s or women’s bathroom at work.

This list goes on and on with cases and rulings just like these.

3. Does President Trump’s policy discriminate on the basis of gender identity?
This is an easy one. Yes, President Trump’s ban on transgender service members discriminates solely on the basis of gender identity.

Is President Trump’s ban on transgender military service members legal?

Based on the case and civil law laid out before us, we believe that President Trump’s ban on transgender service members is wholly unconstitutional on the basis of the Equal Protect Clause of the 14th Amendment to the United States Constitution, as well as illegal under Title VII of the 1964 Civil Rights Act on the basis of sex discrimination. Seeing as numerous organizations have already stated their intention to try this case in court, we will soon see be able to test our analysis.

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Brad Delaney

Brad is the CEO and Editor-in-Chief of The Pacific Tribune. In addition to his work at The Pacific Tribune, he is President of Sound Strategy, a Seattle based creative design agency that builds and maintains websites and advertising for small and medium sized businesses around the world. In his spare time he serves as co-director and Board President of One Million Kids For Equality, a federally recognized 501c3 nonprofit that works to elevate the voices of LGBTQ youth and the children of LGBTQ parents.

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