Transgender Men and Women and the U.S. Military

Assuming that our readers read, watch, or listen to the news, then you already know what is happening. But in case you do not: the Trump administration issued a Presidential Memorandum that forbids transgender individuals from enlisting in the armed services of the United States. Currently serving transgender people may remain for the time being while Secretary of Defense Jim Mattis convenes an expert panel to advise on what the U.S. policy should be for these enlistees.

This policy has been broadly condemned: members of both parties in the Congress, leaders of the military services, currently-serving enlistees, even the daughter of the Secretary of the Interior, herself a former U.S. Navy Diver.

The policy raises a number of interesting questions that we can think about, even though there are no answers yet.

  1. What exactly does this ban mean? What military services does it cover? The National Guard? Isn’t that part of state government?
  2. Is this even legal? It seems like obvious discrimination.
  3. What about this DoD expert panel? Is it possible that the panel will recommend against the ban? What means can be used to influence who is appointed and how it conducts its deliberations?
  4. I am a transgender individual and I’m about to enlist, what should I do?
  5. What can I, as a transgender service member, do with respect to Secretary Mattis’s decision?
  6. What happens if I am in the service now and am not really sure that I am transgender? Who decides and how will they decide? Would I be expected to notify someone?
  7. How is the military allowed to discriminate when it is illegal for civilian employers to do so?

We will answer these questions in the coming weeks right here in this space. If you have questions that we have not asked or if our answers don’t seem to fully answer our own questions, please reach out to us. Here’s how: tbriggs@bowditch.com.

Terry Briggs concentrates his practice on executive compensation, ERISA and employee benefits matters. He represents individual executives, management teams and public and private companies in matters involving executive and equity compensation. This includes employment agreements, stock option and incentive plans, employee stock purchase plans, and golden parachute issues. He works with employers on issues involving both qualified and non-qualified retirement plans and welfare benefit plans.

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