114 Nw. U. L. Rev. 751 (2019-2020)
The Transgender Military Ban: Preservation of Discrimination through Transformation

handle is hein.journals/illlr114 and id is 769 raw text is: 



Copyright 2019 by Michele Goodwin & Erwin Chemerinsky   Printed in U.S.A.
                                                             Vol. 114, No. 3


                              Essay

THE TRANSGENDER MILITARY BAN:
      PRESERVATION OF DISCRIMINATION
      THROUGH TRANSFORMATION


                                Michele Goodwin & Erwin Chemerinsky


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.

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