The military's transgender ban treats service members as 'second class citizens,' lawmakers say

Elizabeth Howe
July 27, 2020 - 2:01 pm
Transgender Troop Ban

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The military delivered a report to Congress on the military's ban on transgender troops, and lawmakers have "concerns." 

The report spanned from the implementation date of the Trump administration's ban on transgender service members, April 2019, to February 17 of this year. 

At the time of the report, 19 individuals had been turned away from the military due to the transgender ban. A total of 197 service members had received a diagnosis of gender dysphoria on or after April 12, 2019, twelve of whom were referred to the Disability Evaluation System and three of whom were subject to processing for administrative separation. Only two of these individuals were considered for a waiver.

At the time of the report, no waivers had been granted -- the Department of Defense granted the first to a sailor in May of this year. 

Navy grants first waiver to transgender ban, allowing sailor to serve as preferred gender

This, the lawmakers argued, is not enough. The lack of waivers concerned members of Congress as the Pentagon argued its new policy towards transgender service members was not a "ban" as long as waivers were available. 

"When issuing the policy on transgender service members, the Administration guaranteed gender dysphoria would be treated as any other medical condition and that it would be waiverable through standard Department processes," the letter to Secretary of Defense Mark Esper reads. "We understood this to include those transgender members already serving who received a diagnosis of gender dysphoria after the implementation of the new policy. With open-source reporting indicating that only a single waiver has been granted by the Navy since February, it is clear the administration’s policy towards transgender service members is effectively a ban." 

The letter to Esper is signed by 12 House Democrats including Rep. Jackie Speier, D-Calif., and Rep. Anthony Brown, D-Md. But this is not the first time members of Congress have pushed against the DoD's transgender policy. At the beginning of July, a total of 116 House Democrats signed and sent a letter to Esper calling for the immediate end of the ban on transgenders in the military. 

116 House Democrats signed a letter to end the transgender military ban

“In light of the U.S. Supreme Court ruling … we urge the Department of Defense (DOD) to immediately update its policies to eliminate the ban on open transgender military service,” lawmakers wrote in the letter. “Additionally, to prevent further harm to transgender service members, we urge the DOD to instruct the Department of Justice (DOJ) to negotiate the end to litigations challenging the ban.”

On June 15, the Supreme Court ruled discrimination against transgender people in the workplace falls under the broader umbrella of discrimination based on sex -- something prohibited by the Supreme Court through Title VII of the Civil Rights Act in 1964.

Does the Supreme Court transgender ruling affect the military transgender ban?

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,"  Justice Neil Gorsuch wrote.

So, as of Monday's ruling, firing or discriminating against transgender employees is likewise prohibited by Title VII. 

The question still remains how that ruling will impact the military. While the military is subject to any Supreme Court ruling through the Uniform Code of Military Justice -- so the military is not necessarily exempt from this newest development in transgender rights -- there are ways the military could adjust its ban on transgender personnel to adhere to the June 15 ruling. 

“The military must be open to all who meet a common set of requirements and wish to serve their country. We must treat all service members with respect and gratitude for their selfless sacrifice,” the 12 members wrote in their letter to Esper. “Since the administration’s imposition of these policies, thousands of transgender service members have been treated as second class citizens and discriminated against by the very nation they fight to protect. This is unacceptable and we ask you to take immediate action to remedy this situation.” 

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Reach Elizabeth Howe on Twitter @ECBHowe.

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