Unfinished Business of Repealing “Don’t Ask, Don’t Tell”: The Military’s Unconstitutional Ban on Transgender Individuals

Discrimination based on gender identity is a form of sex discrimination. In Price Waterhouse, the Supreme Court clarified that “sex” encompasses more than biological genitalia. That ruling eviscerated the holding of Holloway, Sommers, and Ulane—the three cases the Tenth Circuit relied on in declaring that sex discrimination did not encompass gender nonconformity. At least since Price Waterhouse, discrimination against someone because of that individual’s failure to conform to sex stereotypes must be considered a form of sex discrimination.156 As transgenderism is defined as nonconformity “to that typically associated with the sex . . . assigned at birth,” discrimination based on gender identity is a form of discrimination based on sex. Furthermore, transgender individuals are either excluded from the military under DoDI 6130.03 because of the genitalia assigned at birth (which is discrimination based on sex), or because they are acting against the typical gender mores assigned to the sexes (which is discrimination based on sex stereotypes). Regardless, intermediate scrutiny applies. While maintaining unit cohesion and physical and psychological health within the military are important governmental interests, DoDI 6130.03 is not substantially related to these interests. Rather than banning all transgender individuals from serving, the military could conduct individualized assessments of transgender individuals’ physical and psychological health, as the military often does with others. This would accomplish the governmental interests without banning an entire class of people from serving their country. A blanket ban on transgender individuals, based on fallacious assumptions and arbitrary provisions, denies transgender individuals the right to serve in the armed forces. The military should welcome transgender individuals who are willing to risk their lives to defend this country. If, and when, DoDI 6130.03 is rescinded or ruled unconstitutional, a new tweet from the President will be in order. Then, and only then, would the President be correct in stating, “All Americans can now serve their country without hiding who they are.