Senate defense spending bill includes bipartisan effort to protect transgender troops

Elizabeth Howe
July 01, 2020 - 9:12 am
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The Defense bill working its way through Congress includes a bipartisan amendment that would protect transgender service members, extending a Supreme Court ruling from mid-June. 

The June 15 Supreme Court ruling established discrimination against transgender people in the workplace as a form of discrimination based on sex -- something prohibited by the Supreme Court through Title VII of the Civil Rights Act in 1964. 

"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.

In June, the ruling's impact on service members was unclear. 

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

The military is subject to any Supreme Court ruling through the Uniform Code of Military Justice -- so the military is not necessarily exempt from the newest development in transgender rights. There are ways the military could adjust its ban on transgender personnel to adhere to the June ruling. But the four lawsuits currently in process against the military's ban now have one less hurdle to jump, advocacy groups said. 

Now, lawmakers from both sides of the aisle are working to clear up that gray area with an amendment in the Senate version of the 2021 National Defense Authorization Act. The amendment was originally proposed by Sens. Kirsten Gillibrand, D-N.Y. and Susan Collins, R-Maine.

"Now that the Supreme Court has ruled that LGBTQ people are protected from workplace discrimination, we must ensure these protections are extended to every American, especially transgender service members," Gillibrand said.

"If individuals are willing to put on the uniform of our country and risk their lives for our freedoms, then we should be expressing our gratitude to them, not trying to kick them out of the military," Collins said.

The fight over transgender military service began in 2017 with a tweet from President Donald Trump. Legal battles mounted in the following years as the Pentagon clarified its policy for the 9,000 service members it affects.

Court paves way for Pentagon transgender ban

The ban on transgender military personnel went into effect on April 12, 2019. Under the ban, individuals who have been diagnosed with gender dysphoria are not able to join the military. Anyone who hopes to join the service must do so under the sex they were assigned at birth. Current service members are unable to transition genders. 

"Over the past year, we've continued to hear from qualified transgender patriots who want to serve their country but can't because of the Trump-Pence transgender military ban," Perkowski added. "As our nation faces unprecedented challenges, the last thing our military should be doing is rejecting qualified individuals who want to serve simply because of their gender identity."

According to a study released by the University of California, Los Angeles in March, the majority of those currently serving in the U.S. military believe that transgender individuals should be allowed to serve. 

More than half of active duty service members against transgender ban, survey says

UCLA, funded by the Department of Defense, surveyed 486 active duty, non-transgender service members from every branch of the military -- 66 percent of them oppose the Trump-Pence transgender military ban.

The full Senate could vote on its version of the defense spending bill as early as this week. 

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Reach Elizabeth Howe on Twitter @ECBHowe.

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