Do transgender and LGBTQ people have any real constitutional rights in the so-called land of the free?
On January 22, the United States Supreme Court approved the Trump administration’s bid to ban most transgender people from serving in the military, even as several challenges on the issue are being litigated in the lower courts of the country. Donald Trump ran on a campaign promise to bar transgender people from serving, citing “tremendous medical costs and disruption.” In July 2017, President Trump heeded that promise, taking to Twitter to announce a blanket ban across the armed forces.
The Supreme Court decision came as no surprise, with all five conservative judges agreeing to revive the ban that had been stayed by the lower courts. The decision leaves an estimated 10,000 transgender people serving in the US military in a state of limbo. Following the Obama administration’s lifting of the ban in 2016 — which came six years after the repeal of the Don’t Ask, Don’t Tell policy that barred openly LGBTQ people from serving — US Secretary of Defense Ash Carter stated: “Effective immediately, transgender Americans may serve openly, and they can no longer be discharged or otherwise separated from the military just for being transgender.” The relief was, unfortunately, short-lived.
Land of the Free?
Title VII of the Civil Rights Act of 1964 is the basis for protection against workplace discrimination in the United States. Title VII offers protection from being discriminated against on account of one’s sex, race, color, age, religion and national origin. Even though employers cannot discriminate against a person based on sex, the Trump administration had argued that such protections are not applicable to gay people. The Department of Justice had filed a brief arguing that Title VII did not cover sexual orientation discrimination. However, New York’s Second Circuit Court of Appeals ruled in February 2018 that Title VII indeed bans gay and lesbian bias in the workplace, becoming only the second federal court to take that point of view. Previously, Chicago’s Seventh Circuit Court of Appeals had ruled in a similar fashion, making it the first federal court to recognize Title VII as offering protection to people of all sexual orientations.
The Constitution of the land of the free and the home of the brave does not extend consistent protection from discrimination to transgender people. In 2011, the Eleventh Circuit Court of Appeals ruled in favor of a transgender woman who was fired from her state legislature job in Georgia because her boss was uncomfortable with her gender transition. However, as evidenced by the current military ban and last week’s Supreme Court decision, the legal protection offered to transgender people in the workplace is unpredictable at best.
When lifting the transgender ban in 2016, Carter quoted the then-Army chief of staff, General Mark Milley, saying that the decision had its roots in upholding the Constitution: “The United States Army is open to all Americans who meet the standard, regardless of who they are. Embedded within our Constitution is that very principle, that all Americans are free and equal. And we as an Army are sworn to protect and defend that very principle. And we are sworn to even die for that principle. So if we in uniform are willing to die for that principle, then we in uniform should be willing to live by that principle.”
The Trump administration, smarting from the slap on the wrist on the Title VII ruling against it on the issue of sexual orientation, filed a briefing with the Supreme Court, arguing that it is lawful to discriminate against transgender people. The conservative learned men sitting on the Supreme Court — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Chief Justice John Roberts — agreed by granting a stay on two lower court injunctions that had blocked the discriminatory ban, making one wonder if there is any real constitutional protection for transgender people in America.
Trump has repeatedly tried to justify his homophobic and transphobic policies on the basis of battle readiness and high costs associated with having transgender people in the military. Prior to lifting the ban in 2016, the Obama administration had commissioned the RAND Corporation, a non-profit research organization, to conduct a study on transgender people in the United States military. The report estimated that the US military had between 1,320 and 6,630 people on active duty out of a total of 1.3 million personnel. Further, the study assessed that the additional medical costs associated with continuing the hormonal treatments for transgender people would range between $2.2 million and $8.4 million, an insignificant 0.13% of the Defense Department’s health-care budget of $50 billion.
If military readiness of transgender people were really an issue, the 18 countries that allow them to serve in their military, including Israel, United Kingdom, Australia and Canada, would not have done so. Trump’s medieval policies have never been based on realities or facts, but rather on his aversion to LGBTQ people and pandering to his right-wing voter base.
With the signing of the gender identity law in 2012, Argentina became the world’s most transgender-friendly nation. Two years later, Denmark followed suit and became the first European state with transgender-friendly laws. Seven countries — comprising of India, Pakistan, Nepal, Bangladesh, Germany, Australia and New Zealand — now offer a third gender category for those who do not want to identify as male or female.
By contrast, with its outdated and anachronistic policies, the Trump administration is pushing the United States further backward in its treatment of transgender citizens. The recent Supreme Court decision is a setback, but not a decisive blow in the fight for transgender equality. Last week’s decision has effectively allowed the discriminatory ban to stay in place while litigations proceed in the lower courts. While there are state and local laws that prohibit discrimination against transgender people, they will offer no help to those serving in the US military currently impacted by the ban.
When the Supreme Court made the landmark ruling in the Roe v. Wade in 1973, it was a watershed moment for a woman’s right to choose. Without doubt, the Supreme Court will deal with a case of similar magnitude in the near future, assessing the constitutional rights of transgender and LGBTQ people to be treated equally and be truly free. When that day comes, we can only hope that the conservative majority on the Supreme Court bench can and will recognize the applicability of life, liberty and the pursuit of happiness to all its citizens, irrespective of their gender or sexual orientation — and grant them true freedom.
The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.