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

Elizabeth Howe
June 17, 2020 - 11:16 am
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The Supreme Court recently ruled that employers cannot discriminate against transgender employees -- so how does that ruling affect the military?

According to Monday's 6-3 ruling, 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.

"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. 

But the question remains about how it will affect the military. 

It's certainly helpful for those advocacy groups and individuals currently battling the military's transgender ban which went into effect in April of 2019. One of the military's default arguments against allowing transgenders to serve is that of the right of an employer to fire workers for being gay, bisexual, or transgender -- which was legal in more than half the states before Monday's ruling. 

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 Monday's ruling. But the four lawsuits currently in process against the military's ban now have one less hurdle to jump, advocacy groups say.   

The Pentagon referred media inquiries to the Department of Justice, which said it had no comment regarding the ruling's impact on the military transgender ban at this time. 

Just last month -- more than a year after the transgender ban went into effect -- the Navy approved its first waiver allowing a transgender individual to serve under their preferred gender. 

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

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.

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Reach Elizabeth Howe on Twitter @ECBHowe.

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