The Transgender Military Ban: Preservation of Discrimination Through Transformation

Authors

Michele Goodwin
Erwin Chemerinsky

Publication Date

11-2019

Abstract

This Essay contends that the Trump Administration’s ban on transgender individuals serving in the military is based on prejudice and bias, lacking any legitimate justification. As such, the transgender military ban cannot be justified on legal grounds. Nor can it be justified based on health and safety. Engaging a robust empirical record, the authors show that the ban cannot be justified based on matters of efficiency, preparedness, or combat readiness—arguments used by the Trump Administration to justify the ban. Despite transgender individuals serving openly in the military in recent years, the Trump Administration has not been able to offer in reports or court documents proof of its claims that transgender service members undermine combat readiness and thus pose a risk to the military.

Given this, the authors argue, the Supreme Court’s intervention to lift the preliminary injunctions bodes poorly for how the Court will address this issue and other LGBTQ rights issues to come. The Essay identifies several problems with the Trump Administration’s policy to ban transgender individuals from serving in the U.S. military. First, the policy is unjustifiably discriminatory on the basis of gender identity. Second, it perpetuates harmful stereotypes and stigmas that have serious consequences in society generally, and specifically, for transgender service members and their families. Third, the policy singles out transgender members of the military through what ultimately can be understood as coercion and shaming, forcing trans military service members to obtain a psychological diagnosis of gender dysphoria and to do so rather abruptly in order to continue in their military employment. The Essay shows how the transgender military ban perpetuates historical patterns of discrimination in the military, which reach back to race- and sex-based discrimination. The authors conclude that promoting equality in the military will only occur when those who wish to, and are qualified to, serve are permitted to do so with dignity and respect.

Recommended Citation

Michele Goodwin and Erwin Chemerinsky, The Transgender Military Ban: Preservation of Discrimination Through Transformation, 114 Nw. U. L. Rev. 751 (2019).
https://scholarlycommons.law.northwestern.edu/nulr/vol114/iss3/4