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Domino Effect: Transgender Military Ban Raises Employment Law Questions Across the Country

July 27th, 2017 by David Minces

Can he do that?

The question many Americans asked after President Trump tweeted that transgender people will no longer be allowed to serve in the military is being echoed around the world as many people on both sides of the political fence took to social media and verbal debate yesterday to share their view of the reversal of former Defense Secretary Ashton Carter’s policy to allow transgender people to serve openly in the military. Most of the initial public responses were emotionally charged and full of either praise or outrage. As the opinions of civilians, politicians, military personnel, and various organizations have come to light, many have now turned to a legal question: can the President of the United States or the Secretary of Defense amend the requirements for military personnel? And if so, can they do so seemingly at the drop of a hat?Kristin Beck

Retired Seal Team 6 Chief Kristin Beck was apart of the team who brought down Osama Bin Laden. She is also transgender. PC: Kristin Beck Instagram @valor4us

The short answer

The short answer to these questions is: possibly. The authority of regulating the military is conferred on the President as Commander-in-Chief under Article II Section 2 of the U.S. Constitution. Congress is given the power to declare war under Article I, Section 8, Clause 11 of the Constitution. Article I, Section 8 also gives Congress the power to set military budgets and provide funding. Aside from the powers to declare war and fund the military that Congress holds, the Commander-in-Chief is generally granted all other powers in terms of management of the military. Understandably, this is a massive undertaking. The President relies on the Department of Defense (DOD) to facilitate military research, recommendations, and actions. The head of the DOD is the Defense Secretary, presently Mr. James Mattis.

Within the President and the Department of Defense’s powers is the ability to set requirements for military entry and fitness. Many medical or character conditions can bar Americans from military service. Some of the most common medical conditions that can constitute reasons for denial are: arthritis, diabetes, thyroid disorders, and heart disease. While generally denying employment based on a disability would be actionable under the Americans with Disabilities Act (ADA), in certain circumstances where physical condition is critical in performing their job duties, (such as a fire fighter or law enforcement officer) it is not considered illegal. In some proponent’s views, the reenacted ban of transgender people in the military is merely an expansion on the many conditions that can keep applicants out of the service, and is well within the legal authority of the President and his cabinet.

If the military can do this, can my employer?

The short answer here is also: possibly. The debate on the legality of LGBTQ discrimination in the workplace is still raging on. By many accounts, it has just started. Not long ago, in Price Waterhouse v. Hopkins (1989), the tone was set for expanding the meaning of Title VII’s protections against discrimination based on sex. In that case a heterosexual woman was repeatedly reprimanded for not walking, talking, and dressing “more femininely,” and was denied partnership she was qualified for on this basis. The Supreme Court opined that discriminating based on sex stereotypes counts as sex discrimination as it lends itself to being squarely “because of sex.” Price Waterhouse broke the floodgates and soon many people who did not fit in the sex stereotype or gender spectrum filled courtrooms across the country with similar employment discrimination complaints.

Perhaps one of the most famous cases of transgender employment discrimination to date involves a former government employee. Diane Schroer was a retired U.S. Army Colonel who applied for a position which she was especially qualified for at the Library of Congress. After several stellar interviews where she presented as male she was offered the job. In the spirit of honesty Ms. Schroer disclosed that she would be transitioning to female, at which point her offer of employment was rescinded. The District Court for the District of Columbia concluded that because the Library of Congress offered Diane the position as a male but not as a female the discrimination they engaged in was truly “because of sex.” A similar case occurred here in Houston in 2008 when a transgender woman was offered employment at River Oaks Imaging and Diagnostic Group, and later denied the position after they discovered that she was transgender. Judge Nancy Atlas of the Southern District of Texas denied the employer’s motion for summary judgment and the parties settled in mediation.

While a trend is being established by various lower courts and even the Supreme Court in favor of expanding sex discrimination to include transgender people, political uncertainties are still very much apparent and there is no concrete law to rest your head on as a transgender employee at this point.

Shane OrtegaShane Ortega was the first openly transgender member of the United States Army. He also served as a U.S. Marine. PC: Shane Ortega Instagram @onlyshaneortega

But if the military regards being transgender as a disability of sorts, am I entitled to protection under the ADA by my private employer?

 The short answer here is: no. While the ADA covers a wide range of qualified disabilities, being LGBTQ is not considered one of them. The ADA explicitly states: “Disability does not include: Transvestism, transsexualism,…gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;…Homosexuality and bisexuality are not impairments and so are not disabilities as defined in this part.” 29 C.F.R. §1630.3(d). The good news is that at least this provision is clear and provides employers and employees with a definitive answer about their protections under the law.

The take away

At the end of the day there are still a lot of unanswered questions about the impending fate of America’s transgender military personnel (of which there are an estimated 2,500), as well as the employment protections of LGBTQ civilians. The ACLU has vowed to take action to protect active transgender military personnel with Staff Attorney Josh Block noting that the change could violate the Equal Protection Clause of the Constitution and/or the Administrative Procedures Act depending on how the ban is instituted.

In the meantime we hope you will engage in an open and civil discussion about these important issues and continue to support all of the amazing people who have fought and continue to fight for our country.

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