The LGBT Bar Association of Greater New York (LeGaL) condemns President Donald Trump’s hasty announcement via Twitter this morning that he will ban transgender people from serving openly in the military “in any capacity” and the Department of Justice’s filing of a brief this evening with the United States Court of Appeals for the Second Circuit, the regional federal appellate court for New York and our neighbors in Vermont and Connecticut, encouraging the court to turn back the clock on the pro-LGBT interpretation of federal antidiscrimination law.
Current military regulations allow transgender people to serve their country in our armed forces. Tweets are not self-executing; this country still abides by the rule of law and transgender people cannot simply be thrown out of the military because of a tweet. Even the Commander-in-Chief cannot unilaterally eliminate regulations via Twitter. Until the Department of Defense rules are changed, transgender people can serve openly. If those policies are changed, movement lawyers stand ready to take legal action and fight any vicious attempt to purge transgender troops. The New York City Bar Association’s LGBT Rights and Military Affairs and Justice Committees put out a very detailed report only this month detailing the history of the issue and supporting open transgender military service.
On another front, the Second Circuit announced in May it would reconsider the question of whether Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation, under the statute’s explicit ban on sex discrimination, in the case of Zarda v. Altitude Express, Inc. The Department of Justice’s brief tonight flies in the face of the Equal Employment Opportunity Commission’s commonsense 2015 interpretation of Title VII and the Seventh Circuit’s persuasive en banc decision affirming that interpretation in April. We were proud to file our own amicus brief last month, joined by many other local bar associations and advocacy groups, encouraging the Second Circuit to follow the Seventh Circuit’s lead.