Pentagon ban on transgender troops on shaky legal ground after Supreme Court ruling

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In this July 29, 2017 photo transgender U.S. army captain Jennifer Sims lifts her uniform during an interview with The Associated Press in Beratzhausen near Regensburg, Germany.

In this July 29, 2017 photo transgender U.S. army captain Jennifer Sims lifts her uniform during an interview with The Associated Press in Beratzhausen near Regensburg, Germany.

The Supreme Court’s Monday ruling that transgender people are protected from sex discrimination does not overturn the Defense Department’s ban on certain transgender individuals joining the military, though two legal experts said it could ultimately lead to the ban’s demise.

Under the Defense Department’s transgender policy, people with a medical diagnosis of gender dysphoria cannot enlist or be commissioned unless they been stable for 36 months and they have not yet had medical treatment to transition to a new gender.

On Monday, the court ruled in a 6-3 decision that the Civil Rights Act of 1964 protects gay, lesbian, and transgender employees from being fired due to their sexual orientation or gender identity.

However, the ruling only applies to the section of the civil rights law that prevents workplace discrimination against civilians, not service members, said Shannon Minter, legal director for the National Center for Lesbian Rights.

Still, the court’s decision is a major boost to four ongoing lawsuits arguing that the Defense Department’s partial ban on transgender individuals violates the equal protection clause of the 14th Amendment, Minter told Task & Purpose on Tuesday.

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“They just said: Look, if you discriminate against someone because they are transgender, that is sex discrimination, plain and simple,” said Minter, whose group is part of two of the lawsuits. “That does really help us because that has been one of our major claims in the case: that the military’s ban on transgender service members discriminates based on sex.”

Now the four cases challenging the Defense Department’s policy are “on a completely new footing” because the government must meet a high burden of proof to successfully argue that the military’s ban on certain transgender individuals is not sex discrimination, he said.

The Defense Department deferred questions about the Supreme Court’s ruling to the Justice Department, which declined to comment for this story.

Another important implication for the lawsuits challenging the Defense Department’s policy for transgender people is the fact that a conservative Justice Neil Gorsuch and Chief Justice John Roberts both agreed that discrimination based on gender identity is illegal, said Aaron Belkin, director of the Palm Center.

“When you have Justice Gorsuch and Justice Roberts confirming that transgender people are deserving of respect and legal protections, that sends a signal to lower court judges, political leaders, thought leaders, and the public at large that discrimination against transgender people is wrong,” Belkin told Task & Purpose. “That sentiment in and of itself can impact legislation.”