Supreme Court LGBTQ Ruling Could Help Lawsuits Against Military's Transgender Ban
Groups challenging the military’s ban on transgender service are encouraged by a recent U.S. Supreme Court decision that protects many LGBTQ employees from discrimination. The ruling doesn't directly affect the ban, but it could support lawsuits against it.
Ryan Karnoski, 25, is getting his doctorate degree as a clinical social worker at UC Berkeley and has wanted to serve as one in the military for years. He was happy when the Supreme Court decided discrimination against gender identity is sex discrimination, which is barred under Title VII of the Civil Rights Act. But the moment was bittersweet.
“When I think of employment protections for LGBT Americans, I think of transgender people and I think of the country's largest employer of transgender people, the United States military,” he said.
Courts have decided over the years that Title VII doesn't apply to the uniformed services, so the military can continue to tell Karnoski he's not allowed to join because he transitioned genders.
Karnoski has spent the past three years challenging the Trump administration in one of four lawsuits that argue its ban on transgender service is unconstitutional. Federal judges agreed and issued injunctions on the ban, but last year the Supreme Court lifted those injunctions and allowed a revised ban to take effect while the challenges continue.
A boost for the plaintiffs
Lambda Legal and the Modern Military Association of America are some of the co-plaintiffs on Karnoski v. Trump which is filed in a federal court in Washington state. MMAA’s Legal and Policy Director Peter Perkowski said the recent Title VII ruling supports their case.
“The constitution also prohibits discrimination based on sex,” he explained. “Presumably, and I don’t think it’s a difficult question, constitutional discrimination based on sex would also now include sexual orientation and gender identity, and that will get us very far along the way in proving our case.”
The ruling was also a celebratory moment for Jennifer Levi, Director of the Transgender Rights Project within GLBTQ Legal Advocates & Defenders (GLAD), which represents plaintiffs in two other federal lawsuits, one in D.C. and one in California. She said the court’s clarifying of sex discrimination is essential.
“What that means for constitutional analysis is something called ‘heightened scrutiny’ applies to the ban that’s being challenged, and that means that there has to be an incredibly tight fit and a justification for banning an entire category of people,” Levi explained.
Breaking down the policy
But the military claims it’s not discriminating against sex, but rather the medical condition gender dysphoria
The policy that went into effect in April 2019 technically allows transgender individuals to serve, but they have to do so as their birth sex. Those unable to because it causes them distress, or because they've already taken steps to change their gender, pose a threat to unit readiness and combat effectiveness in the military's eyes.
“This policy will ensure that the U.S. military maintains the highest standards necessary to achieve maximum readiness, deployability, and lethality to fight and win on the battlefield,” DOD officials explained in an article posted to its website last March explaining the new policy ahead of its implementation.
The policy angers Karnoski, who said he's worked hard to meet all the other fitness standards required to serve in the military since his surgeries. And he said it's impossible for any trans person to turn their identity on and off.
"Just like I am in no way confused about my gender, and neither are my doctors, or my spouse, or my family, or my friends, I'm also not confused about my desire to serve in the military,” he said.
The policy allows waivers to be issued for exceptions, but so far only one has been granted. Last month the Navy Secretary issued a waiver to a sailor who had already been serving for years and faced involuntary discharge after transitioning.
While advocates celebrated the win, they point out that all attempts by transgender individuals to receive waivers to enlist in the military have so far failed.
Jennifer Levi with GLAD said the lawsuits aren’t about getting people who are otherwise unqualified admitted into the military, it’s about giving everyone an equal chance to prove their worth.
“The problem for the military here is that transgender people who are serving in the military or who want to serve in the military have to meet all the other requirements for deployment and service, and there’s no justification for targeting a group of individuals just for who they are when they’re capable of doing the job,” she said.
The Department of Defense forwarded requests for comment to the Justice Department which has not responded.
Evidence against the military
Rachel VanLandingham, professor at Southwestern Law School and former Judge Advocate with the U.S. Air Force, agrees with the plaintiffs that the recent Title VII ruling gives them a strong advantage, but said it’s not a “slam dunk” for the cases.
“The courts have to determine whether or not there’s an important government interest that’s being served by the transgender ban and whether the transgender ban is substantially related to serving that government interest, and this is where the weight of evidence is strongly against the military,” she said.
VanLandingham cited an independent study published by the RAND Corporation in 2016 that was commissioned by the Department of Defense under the Obama administration to learn more about the potential effects of lifting the longstanding ban on transgender service that was previously in place.
The study found transgender service members have limited impact on military medical costs and combat readiness.
And then there’s the real life experience of the recent years when there was no ban.
“The military didn’t fall apart, there wasn’t an important government interest of military readiness that was harmed, in fact it was the opposite,” she said.
Transgender people who served during that time were allowed to remain on active duty after the new policy went into effect, like Staff Sgt. Katie Schmid, 36, who's been in the Army for 15 years.
"It’s very not normalized still, within the military, to be an out transgender person,” she said.
Schmid is still involved with Karnoski v. Trump, but said she's taken on more of an ambassador role, both educating the civilian transgender community about why people like her would fight so hard to serve in the military, and educating her comrades about what it means to be a trans service member.
"Being able to say, ‘Yeah, I was only out [non-deployable] for eight weeks [after transitioning],’ or, ‘Every piece of treatment I received as part of my transition cost less than the ankle surgery I had after breaking my ankle,’” she said. “And at the end of the day, the person across the table from me is saying, ‘I had no idea.’”
A recent UCLA study found two-thirds of cisgender active duty military personnel support transgender service.
Rachel VanLandingham said while that doesn’t affect the legal analysis, it could affect some judge’s decisions who want to be seen as in touch with the times.
Trials are scheduled to begin this fall. In the meantime, Ryan Karnoski is going to keep doing what he says has been his focus all along: preparing himself for the military, so if the day comes when he finally can join the ranks, he'll be ready.
“I will run this race until I’ve exhausted every last avenue to apply for a commission on an equal footing as somebody who isn’t transgender,” he said.
This story was produced by the American Homefront Project, a public media collaboration that reports on American military life and veterans. Funding comes from the Corporation for Public Broadcasting.