By Peter G. Christian |
President Trump issued via Twitter yesterday a ban on transgender people serving in the military. The abrupt proclamation both reversed the Pentagon’s announcement last year that transgender people could serve openly in the military and potentially set an entirely new precedent of banning such people regardless of their “out” status. The ban has been met with anger, fear, and sadness by transgender service members, as well as outrage by advocates for LGBT rights and people everywhere who oppose discrimination. For those of us who fight against discrimination in courts on a daily basis, one question immediately comes to mind: is such a ban legal? We believe the answer is no. Leading advocacy groups such as the ACLU, Lambda, and Outserve-SLDN – all of whom have committed to legal action if the ban goes into effect – have several potential “arrows in their quiver” as they consider legal battle.
A Transgender Ban May be Unconstitutional
One argument supporting the illegality of the ban is that preventing an entire group of people from serving in the military violates the Equal Protection Clause (EPC) laid out in the 14th Amendment. The United States Supreme Court made this clear in the 1996 landmark case, United States v. Virginia, when it struck down the long-standing male-only admission policy of the Virginia Military Institute (VMI). The Court found that because VMI failed to show “exceedingly persuasive justification” for its sex-based admissions policy, it violated the EPC. Given the performance of transgender service members in the armed forces for years, President Trump and the federal government would have a difficult time finding a persuasive justification for its transgender-based policy. Moreover, courts have already issued landmark decisions protecting gay service members relying on constitutional grounds. The Ninth Circuit, for example, ruled that “Don’t ask, don’t tell” was unconstitutional in Log Cabin Republicans v. United States, finding that the policy violated the First and Fifth Amendments to the U.S. Constitution.
Pulling the Rug Out from Under Openly Transgender Members of the Military May be Illegal
The ban could also be vulnerable on principles of detrimental reliance, which is a legal theory used to force performance of promises upon which others have reasonably and detrimentally relied. Last year, under President Obama, the Pentagon announced that transgender people could serve openly, effectively encouraging/inducing thousands of service members to “come out” and serve openly. Because these service members relied on that military policy in coming out or joining the military, “pulling the rug out” on that promise and using it against them after they have committed to serving their country creates a legal problem.
Advocacy groups considering legal action over the ban could also consider the protections of the Administrative Procedure Act. The APA bars the government from making “arbitrary or capricious” decisions.
Regardless, it is important to remember that, in Minnesota, discrimination against transgender people is clearly illegal. The Minnesota Human Rights Act (MHRA) prohibits discrimination based on “sexual orientation,” which is defined broadly to include what is often referred to as “gender identity” or “gender expression.” This statute applies to areas including employment, housing, education, public accommodations, and more. We at Schaefer Halleen look forward to continuing to fight for transgender individuals under this law.
Peter G. Christian is an employment litigator at Schaefer Halleen, LLC committed to protecting the rights of individuals in the workplace. As an advocate who takes pride in representing a wide range of employees – from top level executives to blue collar laborers – Peter has secured significant victories for an array of clients in many areas of employment related litigation, and against some of the biggest corporations in the world. For his advocacy on behalf of employees, he was named a Rising Star by Minnesota Super Lawyers, Minneapolis/St. Paul Magazine, and Twin Cities Business.