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Challenging the Transgender Ban

The Trump administration's recent rollback of Obama-era sexual orientation and transgender policies has led to litigation claiming violations of due process and equal protection rights.

By Anjali Patel

Monday, August 14, 2017

Five transgender servicemembers recently filed suit following President Trump's July 26 tweets announcing that transgender individuals will not be allowed to openly serve in the Armed Forces. Jane Doe 1, et al, v. Trump, No. 1:17-cv-01597, complaint filed for declaratory and injunctive relief (D.D.C. 08/09/17).

This policy shift reverses existing guidelines that began allowing transgender individuals to serve openly in the military on June 30, 2016. The ban will impact at least three Department of Defense policy documents, along with any division-specific policies. DOD, Military Service of Transgender Service Members (June 2016); DOD, Transgender Service in the U.S. Military: An Implementation Handbook (September 2016); DOD, Transgender and Gender Transition Commanding Officer's Toolkit (November 2016).

The complaint alleges Trump failed to consult with the Joint Chiefs of Staff and the Department of Defense before "the White House [allowed] a plan to end the active service of transgender servicemembers to be transmitted to the Department of Defense for implementation."

The complaint argues that the ban on transgender servicemembers:

Violates the equal protection component of the Fifth Amendment's due process clause, "lacks a rational basis, is arbitrary, and cannot be justified by sufficient federal interests." Violates the Fifth Amendment's due process clause by taking "arbitrary and capricious" action to reverse the 2016 policy allowing transgender people to openly serve. The 2016 policy created a protected interest in being able to openly serve as transgender servicemembers, and the reversal of that policy deprived the plaintiffs of those interests without due process of law, and impermissibly burdened their fundamental rights to autonomy and privacy, the complaint said.

Rescinds the rights, benefits, and privileges promised to the plaintiffs who relied on the 2016 policy, notified their commanding officers that they were transgender, and received ongoing support for their continued service as openly transgender. However, now that they have already identified themselves as transgender, they no longer have "the stability and certainty they had in their careers and benefits, including post-military and retirement benefits that depend on the length of their service." Since coming out, the plaintiffs have served "honorably and successfully" and their transgender status "has not had any detrimental effect on their ability to serve or fulfill their duties," the complaint states. Consequently, the U.S. government should be prevented from "rescinding the rights, benefits, and protections promised to Plaintiffs."

As relief for the ban, the plaintiffs said the court should find the president's directive unconstitutional and issue a preliminary injunction, along with a permanent injunction, prohibiting the categorical exclusion of transgender people from military service.

Sexual orientation

On the same day as the president's tweets -- July 26 -- the Department of Justice argued that Title VII does not cover sexual orientation discrimination, taking the opposite position of the Equal Employment Opportunity Commission in an amicus brief submitted to the 2d U.S. Circuit Court of Appeals. Zarda v. Altitude Express, Inc., 117 LRP 30114 , No. 15-3775 (2d Cir. 04/18/17); EEOC amicus curiae brief filed (2d Cir. 06/23/17); DOJ amicus curiae brief filed (2d Cir. 07/26/17).

Shannon Farmer, a partner at Ballard Spahr, told cyberFEDS that Zarda will have limited impact for federal employees, who can choose to pursue a sexual orientation claim through the administrative process, which follows the EEOC's holding that Title VII does encompass sexual orientation claims. Baldwin v. Department of Transportation, 115 LRP 31813 (EEOC OFO 2015).

Nonetheless, "it will be interesting to see what if anything the court will do with the DOJ and EEOC having split views because they don't have to address it all and could just leave that issue on the side."

Regardless of the 2d Circuit's ruling, ultimately this will be addressed either through legislation or the Supreme Court, she added.

Right now, the EEOC is aligned with the 7th Circuit, while the DOJ is aligned with the 11th Circuit.

"The EEOC is also going to trial as a plaintiff in a 3d Circuit sexual orientation case, which will bring another court into the issue," Farmer said.

During a Town Hall conversation at the 32nd Annual FDR Training, the EEOC's Robbie Dix, associate director of the Appellate Review Program, said the EEOC has been clear that Title VII prohibits agencies from discriminating against or harassing employees based on their sexual orientation and gender identity.

"Agencies should process these cases using 1614 procedures," Dix said. "If they decide to reject these cases relying on the DOJ stance, we will send them back to be processed in a New York second."

Farmer warned, however, that once Trump's nominees for the EEOC are confirmed, new leadership could take a different position than the current EEOC.

If the EEOC's position remains the same, the Supreme Court could be in the "rare -- although not unheard of -- position" of hearing agencies in the same administration arguing as amici for opposing parties, she noted.

However, "it's hard to imagine that the administration would not try to get the EEOC and DOJ aligned on this issue -- which involves the interpretation of a key federal statute -- before going to the Supreme Court," Farmer said.

Sex stereotyping

Agencies also should "keep in mind that there has been a line of cases, for both federal and nonfederal employees, finding that sex stereotyping is sex discrimination protected by Title VII" under the Supreme Court's decision in Price Waterhouse v. Hopkins, 89 FEOR 9001 (U.S. 1989), Farmer said.

If the facts allow, usually complainants allege sex stereotyping instead of sexual orientation discrimination, such as "because I am gay, I don't fit the masculine stereotypes, and therefore I was discriminated against under Title VII," she said.

However, these cases can get somewhat "messy" because courts must make highly subjective calls on whether the person was perceived as "effeminate enough or butch enough" to fall within sex stereotyping, she added.

Additionally, not every case will have facts fitting a sex stereotyping claim. And "from a judicial perspective, it's far cleaner to have a firm line than a rule that asks how much sex stereotyping do you need to have," Farmer explained.

That said, if the Supreme Court ultimately includes sexual orientation under Title VII, plaintiffs would not have to try fitting the facts into a sex stereotyping framework, she added.

Although many believe including sexual orientation under Title VII expands the statute, "as a practical matter, it is not that much of an expansion because litigants can plead enough facts to be recognized as a sex stereotyping case," she said. However, the standard of proof would change and require showing sexual orientation, rather than sex stereotyping, she added.

Anjali Patel is cyberFEDS Legal Editor Washington Bureau. Send questions or comments about this story to hreletters@lrp.com.

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Challenging the Transgender Ban - Human Resource Executive Online