Military Transgender Ban Unlikely to Have Wide Employment Impact

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By Jay-Anne B. Casuga

President Donald Trump’s plan to prohibit transgender individuals from serving in the military, announced via Twitter, likely won’t have much impact on existing transgender protections in public and private workplaces, attorneys told Bloomberg BNA.

“This has limited applicability outside of those who wear the uniform,” Conrad S. Kee, a management attorney with Jackson Lewis in Salt Lake City, told Bloomberg BNA. Kee is also a recently retired Lieutenant Colonel in the U.S. Army Reserve and a former active duty Army Judge Advocate.

The Equal Employment Opportunity Commission interprets Title VII of the 1964 Civil Rights Act, which applies to many private and public employers, as protecting transgender applicants and employees. More specifically, the EEOC took the position during the Obama administration that Title VII’s prohibition against sex discrimination includes transgender discrimination.

Even if another federal agency, say the Justice Department, decides to change its interpretation of Title VII’s sex discrimination protections as not encompassing transgender bias, that won’t necessarily affect the EEOC’s interpretation of Title VII, P. David Lopez, the commission’s former general counsel under the Obama administration, told Bloomberg BNA.

Larger Trend to Expand Transgender Rights

Federal courts have also been moving in the direction that transgender discrimination is a form of sex discrimination, said Lopez, now a partner at Outten & Golden in Washington and co-chair of the firm’s Discrimination & Retaliation Practice Group.

The U.S. District Court for the District of Columbia adopted that position in 2008. And at least two federal appeals courts, the U.S. Court of Appeals for the Sixth and Eleventh circuits, have separately ruled that transgender discrimination can constitute a form of unlawful sex stereotyping, a claim that has been recognized by the Supreme Court since 1989.

The Labor Department also protects transgender workers of government contractors from discrimination.

Additionally, 19 states and more than 200 municipalities prohibit transgender discrimination in the workplace, said Michelle E. Phillips, a management attorney with Jackson Lewis in White Plains, N.Y.

Furthermore, there’s been a movement among employers in the private sector to grant such protections in their own internal policies, she said.

Apart from the Trump administration’s withdrawal of federal guidance regarding bathroom access for transgender students and this latest military announcement, “there hasn’t been any other federal legislation or executive orders that have restricted the expansion of LGBT rights under the Obama administration,” Phillips told Bloomberg BNA July 26.

Federal Protections Don’t Apply

Are military personnel afforded the same workplace discrimination protections as civilian federal employees? No, attorneys told Bloomberg BNA.

Military personnel are paid by the federal government, but they generally aren’t considered “federal employees,” William Wiley told Bloomberg BNA July 26. Wiley is former chief counsel to the chairman of the Merit System Protection Board and chief of staff to the general counsel of the Federal Labor Relations Authority.

“They don’t have the same protections of civil servants,” said Wiley, now president of the Federal Employment Law Training Group in Washington.

This means a presidential executive order currently prohibiting workplace discrimination against transgender federal employees wouldn’t apply to military personnel. Trump declined to change that executive order in January.

A previous amendment to that same executive order highlights the differences between military personnel and civilian federal employees. President Bill Clinton amended the order in 1998 to ban sexual orientation discrimination in the federal workforce. And that prohibition existed alongside “Don’t Ask, Don’t Tell,” a policy instituted by Clinton that barred openly gay, lesbian, or bisexual people from military service, Gregory T. Angelo, president of the Log Cabin Republicans, a Washington organization that represents LGBT conservatives, told Bloomberg BNA.

Additionally, Title VII wouldn’t provide workplace discrimination protections to military personnel.

“Title VII only applies to civilian employees of the military departments,” an EEOC spokeswoman told Bloomberg BNA. “It does not apply to uniformed employees.”

Challenges to Focus on Constitutionality

The president, as commander in chief of the U.S. Armed Forces, has the authority to set policies regarding who can or can’t serve in the military.

“In a dangerous world full of ever-present threats like ISIS and North Korea, President Trump is right to prioritize combat readiness by putting the brakes on an elective, highly controversial, and expensive procedure that imposes a burden on an already-strained military health care system,” Gary McCaleb, senior counsel of the Alliance Defending Freedom, a conservative Christian nonprofit organization, told Bloomberg BNA.

An estimated 150,000 transgender adults are serving or have served in the U.S. Armed Forces, according to the Williams Institute, the University of California, Los Angeles School of Law’s independent think tank on sexual orientation and gender identity law and public policy. Additionally, an estimated 15,500 transgender adults are on active duty or are serving in National Guard or Reserves.

Any legal challenges to a policy change regarding the military service of transgender individuals likely would have to be based on constitutional arguments, Wiley said.

Angelo said it wouldn’t surprise him if lawsuits are already being drafted to oppose as unconstitutional military policies that discriminate against transgender soldiers.

The Log Cabin Republicans challenged the constitutionality of “Don’t Ask, Don’t Tell” in a 2004 lawsuit that resulted in an injunction barring the Defense Department from enforcing the policy. That injunction was stayed pending U.S. Supreme Court review.

However, the constitutional questions in that case weren’t resolved by the Supreme Court because the Obama administration ultimately repealed the policy.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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