Is the military transgender ban legal?

On Behalf of | Aug 3, 2017 | Employee Discrimination

There are a lot of issues in the political pot in Washington these days. Some are legitimate. Some have been created by presidential tweet. Some observers suggest that the Twitter energy expended by the current resident of the White House is little more than a “dead cat” strategy. The idea being that the more ingredients he can throw into the stew, real or not, the less focus there can be on things that might disrupt the administration’s agenda.

One of the latest tweet subjects to trigger reaction is the president’s announcement declaring that the U.S. will no longer “accept or allow transgender individuals to serve in any capacity in the U.S. Military.” Service people are federal employees. Like other civil servants, there are laws that protect against discrimination on the job. Special due processes might apply because of the uniqueness of military service. But the laws are there.

What’s the ban’s effect?

Amid the furor in the wake of the president’s transgender ban tweets, it’s perhaps wise to take a moment and breathe. The tweets amount to an announcement, not an order. This is something that current Pentagon officials emphasize, so in one respect, it may be premature to ask whether it’s legal.

Additionally, The New York Times reports that the head of the Joint Chiefs of Staff sent a letter to the other military service leaders after the announcement saying that current policy on who can and cannot serve in the military remains in place. He says it won’t change until the White House provides more clarity and studies on potential impact are done.

At the same time, the attorneys general of 19 states are calling on Congress to block the ban by including language in the annual defense policy bill to prohibit discrimination against transgender troops. Also, civil rights advocacy groups say they are already preparing to go to court if the announcement becomes policy.

No one is really sure how many of the millions of individuals in U.S. military service now are transgender. The Pentagon doesn’t keep track. Politifact says different groups estimate it ranges anywhere from 1,300 to 15,000.

In the end, many would likely agree that the numbers are less important than ensuring that the rights of individuals deserve to be upheld.