//  4/1/19  //  In-Depth Analysis

The Trump administration has been making a noteworthy argument to justify one of its discriminatory policies against transgender persons--specifically, the ban on military service by many transgender persons. The argument goes something like this: The policy is not discrimination against transgender persons because it is discrimination against certain kinds of conduct that just happens to be associated with (or perhaps even define) transgender persons.

If that argument sounds familiar, it should: We have seen this show before. In a series of cases addressing discrimination against gays and lesbians, states sought to justify discriminatory policies by arguing that the policies did not amount to discrimination against gays and lesbians because the policies merely discriminated against certain kinds of conduct that just happened to be associated with gays and lesbians. Everyone should be worried because this argument, if successful, would allow the administration to justify all kinds of discrimination that are not quite as overt as a policy that flat out declares itself to be discriminatory.

The Argument

In a series of cases on fundamental rights and equal protection, the Court confronted several statutes that distinguished between persons based on their sexual preferences. In Lawrence v. Texas, the Court invalidated a law that prohibited “sexual intercourse with another individual of the same sex.” The law defined intercourse as oral or anal sex; it was also referred to as the “Homosexual Conduct” law.

Yet Texas argued the law did not discriminate on the basis of sexual orientation. Justice O’Connor summarized Texas’s argument in her concurrence this way:

Texas argues ... that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct.

That summary reflected the state’s position at argument. From the transcript:

MR. ROSENTHAL: No, sir, they're -- they're asking for the right of homosexuals to engage in homosexual conduct.

MR. ROSENTHAL: Well, I think Texas has the right to prohibit certain conduct.

Justice Kennedy’s majority opinion addressed this argument as follows:

To say that the issue in Bowers [v. Hardwick] was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.

When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers ... demeans the lives of homosexual persons

Justice O’Connor addressed the argument more directly in her concurrence:

Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. “After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.”Id., at 641, 116 S.Ct. 1620 (SCALIA, J., dissenting). When a State makes homosexual conduct criminal, and not “deviate sexual intercourse” committed by persons of different sexes, “that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 2482.

Some gay people, just like some straight people, might choose not to have sex. But that doesn’t make a law that chooses to criminalize sex only *between people of the same sex* not discriminatory. Discrimination on the basis of sexual orientation can come in forms other than a law that criminalizes being gay. The opinions in Lawrence recognized that fact.

The same issue came up in the oral argument in DeBoer v. Snyder, a marriage equality case. At that argument, Justice Kagan pressed the Michigan Solicitor General on why the case did not implicate the fundamental right of marriage (which prior cases had recognized as a fundamental right). She observed:

See, to me it seems as though you are doing something very different that we've never done before, which is you are defining constitutional rights in terms of the kinds of people that can exercise them. And I don't think we've really ever done that. Where we've seen a constitutional right, we have not defined it by these people can exercise it, but these people can't, especially in a case where the claims are both rights­ based and equality­ based. I mean, it would be like saying in Lawrence, well, there's only a right to intimate activity for heterosexual people and not a right to intimate sexual activity for gays and lesbians. And, of course, we didn't do that. Once we understood that there was a right to engage in intimate activity, it was a right for everybody.

The Michigan SG replied:

Absolutely. But that's theState's whole point, is that we're not drawing distinctions based on the identity, the orientation, or the choices of anyone.

And Justice Kagan said:

It must be. That's why you're drawing distinctions based on sexual orientation in these laws.

The Michigan SG continued:

Oh, gosh, no, because the ­­the State doesn't care about your sexual orientation…. A statute that facially classified based on sexual orientation would look very different. What these statutes do is they have disparate impact.

Michigan’s argument was that a law that permits a man to marry a woman but not another man is not discrimination on the basis of sexual orientation because it is facially neutral and applies to every man, gay or straight. Yes, it might be the case that only gay or bisexual men would want to marry other men. But the law does not, on its face, say “only straight people can marry.”

Obviously the Court did not see it that way. A little bit further along in the exchange, it became clear that Justice Kagan was not having it:

MR. BURSCH: Right. But as you said in ­­ in Bray v. Alexandria, a 100 percent impact doesn't necessarily mean animus. We still have to determine a discriminatory intent.

JUSTICE KAGAN: What did ­­we say in Bray? Something about if you prevent people from wearing yarmulkes, you know that it's discrimination against Jews. Isn't that what we said in Bray? Same thing here.

MR. BURSCH: The Bray v. Alexandria case that I was talking about was the one that affected abortion and your ability to have that, which on its surface affects 100 percent of women.

JUSTICE KAGAN: Sorry, the case that I'm talking about said what I said.

The Argument Reemerges

The federal government has recently been making a recycled version of this argument. On July 26, 2017, the President tweeted that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. military.” A subsequent Presidential memorandum in August 2017 directed the military “to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016,” which “generally prohibited openly transgender individuals from accession into the United States military and authorized the discharge of such individuals.” The memorandum also directed other officials to prepare a report and study of military policy on transgender individuals. After that report came out, the President rescinded the August 2017 memo and replaced it with a March 2018 memo that approved a policy that Secretary Mattis had proposed in February. The February 2018 memo recommended the following policy:

Transgender persons with a history or diagnosis of gender dysphoria are disqualified from military service unless they “have been stable for 36 consecutive months in their biological sex” and transgender persons without a history or diagnosis of gender dysphoria “may serve in their biological sex.”

This policy (and the one embodied in the Augsut 2017 memo) have been challenged on the ground that they discriminate against transgender individuals. DOJ’s defense is that the federal government is not discriminating against transgender persons. The Department maintains that the military's policy is not that “transgender persons should be disqualified solely on account of their transgender status”; instead, the military has merely established some conditions on “the subset of transgender persons who have been diagnosed with gender dysphoria,” making them “generally disqualified” “unless they can demonstrate stability for the prescribed period of time.” The government is insistent that these two items - the conduct of transitioning gender and the medical diagnosis of gender dysphoria - are not the markers of a broader group being targeted by its policy.

As Marty Lederman has explained, however, the Mattis policy would categorically exclude from military service all persons who have successfully transitioned to their experienced gender; the only people the policy would allow to serve are those who have not transitioned and don’t have gender dysphoria (which the APA defines as “significant distress or impairment” resulting from the incongruence between one’s experienced/expressed gender and assigned gender) and who would serve in their assigned gender after having lived in their assigned gender “stable” for three years. The effect of the policy is to exclude transgender people by virtue of a diagnosis (gender dysphoria) or conduct (transitioning) that are associated with being transgender.

The D.C. Circuit signaled that it was perhaps willing to let the administration get away with this. That court considered the government’s motion to dissolve the district court’s original preliminary injunction against implementing the August 2017 memo. The government made that motion once the Mattis policy replaced the August 2017 memo; the district court denied the motion on the ground that the policies were inextricably bound up with one another and therefore not meaningfully different. The D.C. Circuit disagreed with that analysis, noting that “[t]he government took substantial steps to cure the procedural deficiencies the court identified in the enjoined 2017 Presidential memorandum.” But the court also added that the district court was wrong to say that the Mattis Plan “was the equivalent of a blanket ban on transgender service.” The court of appeals continued: “The Mattis Plan … allows some transgender persons … to join and serve in the military” provided that they do not have gender dysphoria and have not transitioned to their experienced gender.

It is that last claim that suggested the D.C. Circuit believed the administration’s claim that it is distinguishing people based on conduct (transitioning gender) or medical diagnoses (gender dysphoria) not status (transgender identity). The problem, as in the sexual orientation cases, is that there is no clear separation between these categories. There is substantial overlap between them, and one can and does function as a proxy for the other. Or, in Justice O’Connor’s words:

Under such circumstances, [the policy] is targeted at more than conduct. It is instead directed toward [transgender] persons as a class.

It might be the case that some transgender individuals do not suffer from significant distress or impairment if they do not transition. But experiencing discomfort in your assigned gender is among the defining attributes of what it means to be transgender. And the fact that a policy does not exclude all members of a particular group does not mean the policy is not discriminatory, as Leah has written about at some length before.

Another key aspect of the government’s argument, taken up in the D.C. Circuit, is that the court owes some heightened amount of deference to the creators of this plan because it is a military policy, a particular area of expertise the court does not have. Judges Wilkins and Williams recently released additional opinions that indicate there were a wider range of arguments motivating their decision than the administration’s specious claim of nondiscrimination.

And in his concurring opinion Judge Wilkins even pushed back on the government’s contention that “policies strictly of a military nature can never be subject to heightened scrutiny,” instead stating that “determining the correct standard of review for military policies ... is a complex venture,” and that the “military” nature of a policy does not automatically exempt it from any serious review. He stressed that the District Court should be taking a hard look at the merits of the constitutional issues, and that additional discovery would be appropriate to really get at the heart of this policy. In particular, he cited a lack of support on the record for plaintiffs’ definition of “transgender,” rather than an outright acceptance of the government’s characterization, as a motivating factor in his decision. The door is still open, it would seem, to showing that this policy targets a group even if it claims to target conduct.


This development is among the more troubling ones in the litigation surrounding the ban on transgender service members. The argument the administration is making -- with some faint blessing from the courts -- would provide a very formalistic cover for discrimination against transgender persons. If discriminating against people who have transitioned genders does not amount to discrimination against transgender persons because the former is conduct and the latter is status, discriminatory policies could be easily rewritten to target conduct that is associated with being transgender. The fact that some transgender individuals do not transition does not make it any less of discrimination; some gay men might choose to remain celibate; it doesn’t follow that criminalizing gay sex doesn’t discriminate against gay men.

And this development should raise alarm bells beyond just the treatment of transgender individuals. If this argument is accepted, it could roll back protections against discrimination on the basis of sexual orientation given that Lawrence and Obergefell rejected a version of this argument.

Nor is this issue limited to the LGBT community. This argument has also been used to justify disadvantages on women. In Geduldig v. Aiello, the Supreme Court said that discrimination against pregnant individuals was not discrimination on the basis of sex, as pregnancy is the result of conduct, and not all women become pregnant. (This reasoning ignores that only women who are born with an assigned gender as women become pregnant, among other things.)

The administration’s argument on the ban on transgender service also parallels other arguments the administration has used to justify other kinds of discrimination. In withdrawing the DOJ’s long-standing position that a Texas voter ID law discriminates on the basis of race, the government instead argued that the Texas policy was not targeted at specific groups, but rather at the conduct of voter fraud, making any differences in ability to get an ID simply “disparate impact.” And in the entry ban, the government argued -- and the Court accepted -- that the President’s ban on entry (and limitation on the refugee program) did not amount to discrimination on the basis of race or religion because the entry ban relied on nationality and national origin, rather than race or religion. It is as if the administration is arguing -- and courts are agreeing -- that so long as the discrimination isn’t written into the text of the policy and advertised as such, it’s not discrimination. But that’s baloney, and stinky baloney at that.




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