After president announced trans military ban, DOJ took anti-gay position in discrimination case.
By Joan Biskupic
CNN Legal Analyst and Supreme Court Biographer
President Donald Trump’s three-tweet plan to stop transgender individuals from serving in the military has yet to be clarified or implemented, but as it stands could run headlong into established case law.
The same is true for the position the Trump administration took late on Wednesday, declaring that federal anti-discrimination law does not cover people suing based on sexual orientation.
Both stances hit the LGBTQ community hard, and plainly arise from a deeper administration interest in countering growing legal protections for claims tied to sexual orientation and gender identity.
LGBTQ rights constitute one of the most contentious and evolving areas of litigation today. In 2015, the US Supreme Court declared a right to same-sex marriage nationwide. Since then myriad challenges have been marching toward the justices, including one to be heard in the term that begins in the fall from the Christian owner of a Colorado bakery that refused to bake a cake for a same-sex couple.
Transgender claims, related to firings in the workplace and bathroom use in schools, are also filling court dockets.
The Equal Employment Opportunity Commission has noted that judges increasingly have extended longstanding federal law against sex discrimination to coverage for transgender individuals and those with grievances based on sexual orientation.
Those characteristics are not explicit in Title VII of the 1964 Civil Rights Act, which specifically covers bias related to sex, as well as race, color, religion and national origin.
But, as U.S. Appeals Court Judge Diane Wood wrote in an April case brought by a lesbian whose contract was not renewed by a community college: “The goalposts have been moving over the years, as the Supreme Court has shed more light on the scope of the language already in the statute: no sex discrimination.”
That Chicago-based court pointed to emerging case law as it ruled that Title VII extends to disputes over sexual orientation.
Still, it is important to note that the two Trump administration stands on Wednesday arise in distinctly different contexts that could matter when challenged in courts.
Federal judges confer special deference when reviewing military policies. That was the situation in 1981 when the Supreme Court upheld the men-only draft. Yet in that case and others, courts have looked to the grounds for discriminatory classifications and what led up to them, such as congressional hearings and comprehensive study.
The underpinnings and legal rationale of Trump’s position against transgender people serving “in any capacity” in the military are not yet evident. And, in fact, a recent Pentagon-commissioned study by the RAND Corporation suggested the costs and impact on military effectiveness would be minimal.
Last year, then-Defense Secretary Ash Carter ended a ban on transgender individuals serving openly in the armed forces and called for a year-long review related to new recruits. Last month, new Defense Secretary James Mattis said he was delaying enactment of a plan for further study.
Trump’s position on Wednesday appeared to come before that larger review was finished. His plan was disclosed in three tweets, without any formal directive or implementing plan:
The missives did not draw a line between recruits and transgender people already in the military and likely relying on the 2016 policy for major career and health benefit decisions.
Overall, legal challenges could swirl around questions of due process and equal protection of the law.
Like many top Pentagon officials, transgender advocates were blindsided by Trump’s announcement. Yet they said Wednesday they were poised to sue over any prohibition in courts once its contours emerge.
For the nation’s courts, an overriding consideration would be the reasons for enforcing a sweeping prohibition against a class of people.
In the past, judges have accorded the executive branch and Congress special deference for military policy. But as was the case in the 1981 Rostker v. Goldberg, involving the draft, and more recent lower court disputes over the now-repealed “don’t ask, don’t tell” armed forces policy that targeted gays, judges look at legislative findings and whether an initiative advances military readiness.
So far, what’s in the public record could cut against a rationale tied to traditional military goals. The 2016 RAND Corporation study commissioned by the Defense Department found that allowing transgender people to serve would have a minimal impact on readiness and health care costs.
The study estimated that transgender people in the military number between 1,320 and 6,630, but it noted the lack of empirical data on this front. Addressing the costs of possible gender-change surgery and treatment, it predicted that only a small subset would seek such medical care and deemed the cost an “exceedingly small proportion” of total health care expenditures.
While much of this is fresh judicial territory, one principle has taken deep root over the years: government may not single out people based on animus. In the 1996 Supreme Court case of Romer v. Evans, the majority struck down a Colorado initiative that barred cities from shielding gays and lesbians from discrimination after finding that the measure appeared born of animosity.
The second, related administration move Wednesday emerged in more routine job discrimination case. The case, pending in a New York federal appeals court, involves a skydiving instructor fired after disclosing his sexual orientation.
The new Trump administration argument departs from EEOC policy and lower court rulings that Title VII’s prohibition on sex discrimination extends to job bias based on sexual orientation. That view has not been consistent among courts, and the Department of Justice emphasized decisions narrowly construing anti-bias law.
In the “friend of the court” brief filed in the case of Zarda v. Altitude Express, Department of Justice lawyers argued it would be up to Congress to broaden Title VII’s reach.
“To be sure, there have since been notable changes in societal and cultural attitudes about such discrimination,” DOJ lawyers wrote, “but Congress has consistently declined to amend Title VII in light of those changes, despite having been repeatedly presented with opportunities to do so.”
They urged the US Court of Appeals for the Second Circuit to reject the path taken by the Seventh Circuit, siding with a lesbian let go from an Indiana community college. That court said the woman faced discrimination essentially because of her sex and sexual stereotypes, covered by Title VII, and the Seventh Circuit pointed to the Supreme Court’s pattern of siding with gay people, including for same-sex marriage.
DOJ lawyers also asserted that while EEOC is the agency that enforces federal law in the workplace, it “is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond the power to persuade.”
As with Trump’s retrenchment for the military, it would be up to the nation’s judges, already showing a readiness to break new ground, to determine which argument is most persuasive.