Federal Courts Block White House Policy Barring Military Service Because of Gender Identity in New York and Throughout the Country

New York City gender discrimination laws prohibit discrimination on the basis of gender identity and gender expression, but protections at the federal level for transgender and gender-nonconforming workers are far less certain. The United States Armed Forces, which are subject to their own separate set of laws, allowed overt discrimination on the basis of both sexual orientation and gender identity until quite recently. A memorandum issued by the White House in August 2017, however, bluntly directed the Department of Defense (DOD) and the Department of Homeland Security (DHS) to reinstitute the prior policy of excluding transgender individuals from military service. Lawsuits soon followed, and after two judges ruled in the plaintiffs’ favor against the ban on transgender soldiers, the Department of Justice (DOJ) stated that it would not appeal the decisions. The DOD later announced that transgender individuals could begin enlisting again on January 1, 2018.

In 1993, Congress enacted the “Don’t Ask Don’t Tell” (DADT) policy, previously found at 10 U.S.C. § 654. A servicemember could be removed from service under this policy if they engaged in or solicited “a homosexual act or acts”; if they stated that they were “a homosexual or bisexual, or words to that effect”; or if they “married or attempted to marry” someone of their “same biological sex.” 10 U.S.C. § 654(b). Congress repealed DADT in 2010. The DOD began the process of lifting restrictions on transgender servicemembers in July 2015, and it officially lifted the ban in June 2016.

A new administration moved into the White House in January 2017 and quickly began reversing policies enacted by the prior administration relating to gender identity and gender expression. The memorandum reversing the policy on transgender servicemembers, issued on August 25, 2017, asserted that the DOD had failed to conduct a sufficient review of potential negative effects. It directed the DOD and DHS to cease all activities relating to compliance with the revised policy—with specific mention of “sex-reassignment surgical procedures for military personnel”—and to return to the policy in effect prior to June 2016. The memorandum would have been controversial on its own terms, but the president’s use of Twitter to announce the ban added to the controversy.

A group of active-duty servicemembers filed suit prior to the issuance of the White House memorandum, seeking a preliminary injunction barring its implementation. They argued that the renewed ban on transgender servicemembers violated the Equal Protection Clause of the Fifth Amendment and that the government was “estopped from terminating [their] continued service.” Doe et al. v. Trump et al., No. 1:17-cv-01597, complaint at 2 (D.D.C., Aug. 9, 2017). The court partially granted the preliminary injunction, enjoining enforcement of “the Accession and Retention Directives” of the memorandum. Doe, mem. op. at 4 (D.D.C., Oct. 30, 2017). These are the provisions blocking transgender individuals from enlisting in the military and removing active-duty transgender servicemembers.

Another lawsuit, filed three days after the issuance of the memorandum, resulted in the issuance of a preliminary injunction blocking the entire memorandum, including the provisions regarding medical care. The court called the issuance of the memorandum “capricious, arbitrary, and unqualified.” Stone et al. v. Trump et al., No. 1:17-cv-02459, mem. order at 50 (D. Md., Nov. 21, 2017).

If you are experiencing an unlawful workplace practice in New York City, such as gender identity discrimination, contact Phillips & Associates’ gender identity discrimination attorneys today, online or at (212) 248-7431, to schedule a free and confidential consultation.

More Blog Posts:

Title VII Sex Discrimination Includes Gender Identity, According to Federal Court, New York Employment Attorney Blog, December 22, 2017

U.S. Justice Department Reverses Position on Gender Identity Discrimination Claims in New York and Nationwide, New York Employment Attorney Blog, December 20, 2017

Lawsuit Uses Theory of Employment Discrimination Based on Sex to Assert Claim for Gender Identity Discrimination, New York Employment Attorney Blog, October 13, 2017

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