Monday’s landmark ruling by the Supreme Court that LGBTQ discrimination is illegal sex discrimination means that the U.S. military is now the last employer discriminating against transgender people. While the ruling in Bostock v. Clayton County doesn’t automatically kill the military’s transgender service ban, several attorneys said today’s ruling is the ban’s death knell —including one who will soon argue against the ban in court later.
“Because the Supreme Court was so clear today, there’s every reason to think the federal courts hearing the military ban cases will adopt the same reasoning. That means the government is highly unlikely to successfully defend the ban,” said Jennifer Levi, the transgender-rights project director at GLBTQ Legal Advocates & Defenders.
Later this year, Levi will argue against the military trans ban in federal district courts in the District of Columbia and California. Other cases challenging the ban are also expected to have hearings this year in Washington state and Maryland.
Those challenges don’t stem from the same legal root as Bostock. The ruling in Bostock found that gay and transgender discrimination violates Title VII of the Civil Rights Act. Challenges to the trans ban are predicated on the 14th Amendment’s equal-protection clause via the 5th Amendment’s due process clause. That’s because, as Southwestern Law School professor Rachel VanLandingham said, courts have tended to carve out Title VII exemptions for the military.
But that distinction is unlikely to impact the courts, according to Peter Perkowski, the legal and policy director of the Modern Military Association of America.
“The Equal Protection clause protects against discrimination based on sex. The Supreme Court said discrimination against transgender people is discrimination based on sex. I think that’s a legal truth regardless of context. I’m not really sure that resolves the issue entirely, but it certainly helps,” said Perkowski.
The Trump administration argues that its transgender service ban, first enacted in 2018 and put into place last year, is based on a medical diagnosis of gender dysphoria. The Pentagon deferred comment to the Justice Department on the ruling’s applicability to the trans ban. A Justice Department spokesperson did not immediately respond to a request for comment.
Whatever the government’s reasoning, the Bostock ruling likely renders the ban legally untenable, agreed VanLandingham, a retired Air Force lieutenant colonel and judge advocate.
“Unlike the government’s arguments that the Trump military transgender ban is not based on sex, today’s ruling squarely explodes that ludicrous theory, thus subjecting the ban to heightened scrutiny—a standard the government will have huge challenges in meeting, given that the Department of Defense itself concluded in 2016 that no important government interest was served by such a ban,” she said.
Perkowski said the defeat of the trans military ban would “make the win complete.” Levi agreed: “Today’s ruling really tremendously strengthens the challenges to the military ban.”