When I first began practicing law, changes in law and policy had to be found in advance sheets (those were made of real paper, FYI). That was followed by the advent of web based legal research, which at the time, I thought was groundbreaking. Never could I have imagined a time when there would be a need for me to become a “Twitter follower” to be up on the latest changes in the law. Of course, I never thought that a reality television star would get elected president, so what do I know?
In June of 2017 a Twitter message from the president announced a major change in policy regarding transgender people serving in the military. Since the Twittering had been going on for some time by June, I should not have been surprised, but I was. I was surprised not only because this was a major policy change being announced on Twitter and it doesn’t usually happen that way, but also because there was no real explanation for the change. That came later, because it’s hard to do in 140 characters or less (maybe easier now that the character limit has doubled). The gist of the change was that transgender service members would be kicked out of the military and transgender people who wanted to enlist in the military would be banned from doing so. Last week, a federal judge in Washington D.C. put a temporary halt on the proposed ban on transgender people serving in the military.
Apparently, the original thought process behind this policy change was that (1) some transgender people might have medical conditions that would impede their ability to serve in the military; (2) that it might be difficult and could be costly to deploy transgender troops in some military situations; and (3) that the presence of transgender people in the ranks might cause disruption of unit cohesion. Transgender service members challenged the ban by filing a lawsuit. In analyzing the logic behind the ban, U.S. District Judge Colleen Kollar-Kotelly held that there is a strong likelihood that the transgender service members will prevail because the ban will be struck down as a violation of the Fifth Amendment’s guarantee that all Americans will enjoy equal protection under the laws of the federal government.
The judge’s analysis applied a less stringent constitutional analysis than that used for analyzing claims of race discrimination, but one that still requires the government to demonstrate a strong justification for the challenged policy. The judge held that the three bases for the ban stated above were too broad and hypothetical to provide a strong justification for the ban. In other words, lots of things might happen, but we typically do not make major, sweeping policy changes unless there is some evidence that these things actually will or have happened. The judge also held that the military’s own studies have indicated that there has been no real impact on the military as a result of transgender people serving in the ranks. This further discredits the government’s argument that things “might” happen. Finally, the judge was critical of the fact that this major policy change was announced via Twitter, which she believes gives support to the argument that there was no formal consideration or deliberation that went into this change, i.e. that it is unsupported by any real facts or evidence.
It is likely that this ruling will be appealed by the Trump Administration, but for the time being, transgender service members will be allowed to continue serving in the military. Transgender people will also be allowed to enlist in the military starting in January of 2018. The judge did not rule on whether or not the Pentagon’s ban on sex reassignment medical treatment and surgery is unconstitutional. That will have to wait until a plaintiff alleges some actual harm based upon the ban.
This case should serve as a reminder to all employers that discrimination based upon gender status will not be viewed favorably by any courts in Illinois. The Illinois Human Rights Act protects transgender employees in the workplace. Federal law in the 7th Circuit will also likely protect transgender employees. If you have questions regarding the rights of transgender employees in your workplace, please don’t hesitate to contact us.