Trump’s illegal Transgender Ban
Washington, D.C. – Wednesday, President- in the title- Donald Trump, casually issued an executive order banning transgender service members from the military, which runs contrary to Federal Administrative and Federal Court rulings. This ban not only shows this administration’s inability to read the temperature of the country but also undoes months of work by military Officers, civilian policymakers and Trans’ advocacy groups. The military has traditionally been a bastion of tolerance in the American Landscape. The Military was among the first U.S. institution to integrate, decades before the civil rights act. Dating back to the Civil War, women were allowed to serve as nurses and field medics, with Mary Walker becoming the first women to receive the Medal of Honor following the Civil War. This is why President Trump’s actions are so concerning, not just to the American public, but to American employment discrimination jurisprudence as a whole.

As a result of litigation of charges against private employees, and hearings and appeals on behalf of Federal sector employees, The Equal Employment Opportunities Commission (“EEOC”) have taken the position that transgender applicants, and employees, are protected under Title VII of the Civil Rights Act of 1964. Through the litigation process, the EEOC has obtained roughly $6.4 million dollars in monetary relief for individuals in support of the LGBT community. Further, multiple court decisions have endorsed the Commission’s interpretation of Title VII.

The leading case which endorses the EEOC’s position on transgender individual’s protections under TITLE VII, is Price Waterhouse v. Hopkins. In Price Waterhouse, Ann Hopkins, a Price Waterhouse employee, was transitioning from male to female when Price Waterhouse denied her a promotion because, in part, the partners at the firm felt she did not “act as a women should act.” The Supreme Court held discrimination based on sex stereotypes is unlawful sex discrimination. Justice William Brennan, with a 6-3 majority, held that Title VII’s “because of sex” provision is designed to combat the entire spectrum of disparate treatment of men and women resulting from sex stereotypes. As a result, this transgender individual was discriminated against because she failed to conform to “gender-based behavioral norms.” The Court’s ruling made it clear that discriminating against an individual because they failed to conform to “gender-based behavioral norms,” including failing to dress, talk and act like a male, was illegal under Title VII. Title VII generally covers both private and federal sectors.

While Courts and the EEOC have taken a strong position on the protections afforded to LGBT individuals, their hands may be tied with regard to President Trump’s executive order. Because the government holds Sovereign immunity, they will only be subject to Title VII lawsuits if they consent to be sued. Unfortunately, despite President Trump’s inclination for litigious behavior, it seems unlikely that his Administration will consent to be sued on social and moral issues any time soon.

The experienced sexual harassment attorneys at the Derek Smith Law Group, PLLC, aren’t afraid of the tough suits, often standing up New York State agencies who discriminate against State employees. If you feel you have been discriminated against, no matter the job, please give our talented discrimination attorneys a call, toll-free, at 1877 4NYLAWs, for your free consultation.

About Derek Smith

Attorney Derek T. Smith is an experienced sexual harassment & discrimination law litigator who has particular experience in the areas of workplace discrimination, sexual harassment, wrongful termination, civil rights litigation, employment law and civil litigation.

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