July 8, 2020
Written by Jennifer Levi, GLAD’s Transgender Rights Project Director, and Shannon Minter, Legal Director of the National Center for Lesbian Rights.
Last month, the Supreme Court issued a stunning victory for LGBTQ Americans in Bostock v. Clayton County, ruling that LGBTQ people are protected from discrimination in the workplace under federal law. In a decisive 6–3 ruling the court held that the prohibition of workplace discrimination based on sex in Title VII of the 1964 Civil Rights Act prohibits employers from discriminating because a person is gay or transgender. As a result of that decision, lesbian, gay, bisexual, and transgender workers now have nationwide protection. And while Title VII does not apply directly to members of the military, the Court’s analysis is likely to be the death knell for Trump’s transgender military ban.
The decision in Bostock protects LGBTQ workers who are already contributing in every field, from the front lines of the pandemic to finance to healthcare to public service. And because only 23 states have enacted anti-discrimination laws that specifically include LGBTQ workers, the Court’s ruling means millions of LGBTQ workers across the country will now have protection from discrimination for the first time — a remarkable victory in and of itself. Even more broadly, the Court’s determination that anti-LGBTQ discrimination is “necessarily” based on sex will reverberate through the federal courts for years, as LGBTQ people seek to vindicate their rights under numerous other federal sex discrimination laws. In constitutional claims, like that upon which the challenge to the transgender military ban rests, this precedent demands that courts review governmental policies or actions that discriminate against LGBTQ people under the heightened scrutiny applied to sex-based discrimination, not the far less demanding rational basis test, which is weighted heavily in the government’s favor. A governmental policy that is based on sex is presumed to be invalid and may only be upheld if the government can show that is has “an exceedingly persuasive justification.” Because the government cannot demonstrate any justification, much less a persuasive one, for excluding transgender people from military service who stand ready and able to meet the terms of service, the ban cannot ultimately survive.
While LGBTQ people, especially transgender people and LGBTQ people of color, continue to face discrimination and violence in many aspects of their lives, this decision represents a ray of hope. Just a few weeks ago, the Department of Health and Human Services issued a rule seeking to roll back protections in healthcare for transgender patients. The Department of Housing and Urban Development is expected to propose a rule soon that allows single-sex homeless shelters to deny entry to transgender people. The Supreme Court’s Bostock opinion sweeps away any legal basis for this administration to defend these harmful policies in court.
For our case against President Trump’s transgender military ban, this decision is monumental.
The administration must now confront a definitive precedent that any disparate treatment of transgender people is based on sex. Rather than hiding behind a claim that no real justification for the ban is required, since it does not implicate a constitutionally protected class, the government must now defend the ban on its merits, under a heightened standard that almost always results in the invalidation of a discriminatory rule.
Like so many other sex-based policies in the past, the transgender military ban is based on outdated stereotypes and misconceptions and has no basis in the reality of transgender people’s abilities or lives. Policies like this ban weaken and divide our society, putting political agendas before the safety and prosperity of our nation. As the nation’s largest employer, the military should comply with the Court’s decision and once again permit transgender individuals who meet the same standards as others to serve, as many military leaders, enlisted members, and veterans have urged. And if the administration will not permit the military to do so, we are confident the courts will force the administration’s hand and end this harmful policy.
The ruling in Bostock is the culmination of decades of work and evolving court understanding. As transgender attorneys at leading national LGBTQ advocacy groups, we have always known that our legal arguments against anti-LGBTQ discrimination are sound though it has taken decades for the courts to fully accept them. Now, we are no longer alone in this fight. When we defend transgender service members in court, we do so under the banner of our nation’s highest court, which has recognized that discrimination because a person is transgender is no different than — indeed, is part and parcel of — discrimination based on a person’s sex. In the broad light of that historic ruling, the shadow of President Trump’s vendetta against transgender troops grows shorter by the day.