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116 House Democrats demand end to transgender military ban in new letter

Congresswoman Suzan DelBene speaks at the 2019 annual Forum Global Data Privacy Conference. (RepDelBene, Wikimedia Commons/Released)
July 09, 2020

116 Democratic lawmakers in the U.S. House of Representatives signed a letter Wednesday to Defense Secretary Mark Esper, demanding an end to the U.S. military’s ban on transgender service members.

The letter, prepared by Rep. Suzan DelBene (D-WA), cites a recent U.S. Supreme Court decision in the case of Bostock v. Clayton County, in which the court ruled 6-3 that the 1964 Civil Rights Act’s language extends to an individual’s sexual orientation and gender identity.

“In light of the U.S. Supreme Court ruling in Bostock v. Clayton County, in which a 6-3 majority ruled that Title VII of the Civil Rights Act of 1964 protects LGBTQ people from workplace discrimination, we urge the Department of Defense (DOD) to immediately update its policies to eliminate the ban on open transgender military service,” the letter states. “Additionally, to prevent further harm to transgender servicemembers, we urge the DOD to instruct the Department of Justice (DOJ) to negotiate the end to litigations challenging the ban.”

In 2017, Trump ordered the reversal of a 2014 policy implemented by President Barack Obama allowing transgender individuals to serve. Then-Defense Secretary Jim Mattis was tasked with reviewing the issue of transgender service members and later returned with the determination that allowing transgender troops to serve could undermine the military’s readiness. Mattis determined that those diagnosed with gender dysphoria also experience dangerous side effects such as suicide, anxiety, depression, and drug addiction, and that surgeries and therapies were not successful in alleviating these side effects.

In March of 2018, Trump announced a ban on transgender troops except in “limited circumstances.”

The Supreme Court ruling in Bostock v. Clayton County may help Democratic efforts to reverse a transgender troop ban, though Democrats have tried other methods to stop the ban, such as legislative attempts to block Trump’s transgender troop ban.

The Supreme Court itself has upheld the transgender troop ban in a 5-4 January 2019 ruling, while other cases challenging the ban proceed through the lower courts. One appeals court judge considering one of the transgender ban cases did note “judges must give deference to military leaders when it comes to policy decisions about standards for service.”

Despite the existing decisions upholding the ban, DelBene did argue in her letter that, “The U.S. Supreme Court’s ruling in Bostock will provide significant weight to those already substantial claims: the principle announced—that gender-identity discrimination is discrimination “because of … sex”—applies equally to claims under the Constitution.”

DelBene further appealed to the military to side with her view on the issue, rather than allowing litigation to continue on its current course.

“Prolonging the litigation in the face of almost certain defeat, and thereby prolonging the existing policy, will continue to inflict serious harm on transgender people seeking to serve our country and on those already serving while living in the shadows, enduring the dignitary harm of being told they’re a burden,” DelBene’s letter states. “This policy is an attack on transgender service members who are risking their lives to serve our country and it should be reversed immediately.”

Despite the overall effect of the transgender ban, there are still some transgender service members serving.

The U.S. Navy recently approved a sailor’s request to serve under their preferred gender, allowing them to obtain a change to their gender marker and letting them adhere to the service standards, such as dress and grooming associated with that preferred gender.