Letter to the Hon. Mark Esper, Secretary of Defense and to the Hon. William Barr, Attorney General - DelBene Leads 116 Lawmakers Calling for End to Transgender Military Service Ban


By: Gwen Moore, Ron Kind, Mark Pocan, Kim Schrier, Pramila Jayapal, Derek Kilmer, Rick Larsen, Peter Welch, Gerry Connolly, Jennifer Wexton, Don Beyer, Jr., Donald McEachin, Colin Allred, Sylvia Garcia, Sheila Jackson Lee, Jim Cooper, David Cicilline, Susan Wild, Madeleine Dean, Peter DeFazio, Earl Blumenauer, Suzanne Bonamici, Tim Ryan, Brian Higgins, Joe Morelle, Eliot Engel, José Serrano, Adriano Espaillat, Carolyn Maloney, Jerry Nadler, Yvette Clarke, Nydia Velázquez, Grace Meng, Gregory Meeks, Kathleen Rice, Thomas Suozzi, Dina Titus, Deb Haaland, Bonnie Watson Coleman, Don Payne, Jr., Albio Sires, Tom Malinowski, Frank Pallone, Jr., Ann Kuster, Chris Pappas, Alma Adams, David Price, Bennie Thompson, Emanuel Cleaver II, Ilhan Omar, Betty McCollum, Angie Craig, Debbie Dingell, Andy Levin, Dan Kildee, Jamie Raskin, David Trone, Bill Keating, Stephen Lynch, Seth Moulton, Joe Kennedy III, Lori Trahan, Jim McGovern, John Yarmuth, Sharice Davids, Lauren Underwood, Bill Foster, Brad Schneider, Jan Schakowsky, Danny Davis, Sean Casten, Mike Quigley, Chuy Garcia, Edward Case, Hank Johnson, Jr., Debbie Mucarsel-Powell, Debbie Wasserman Schultz, Alcee Hastings, Sr., Kathy Castor, Charlie Crist, Jr., Lisa Blunt Rochester, Eleanor Norton, Jahana Hayes, Jim Himes, Joe Courtney, John Larson, Joe Neguse, Diana DeGette, Scott Peters, Alan Lowenthal, Mark Takano, Lucille Roybal-Allard, Gil Cisneros, Linda Sánchez, Karen Bass, Jimmy Gomez, Ted Lieu, Grace Napolitano, Adam Schiff, Judy Chu, Julia Brownley, Salud Carbajal, Jimmy Panetta, Zoe Lofgren, Anna Eshoo, Ro Khanna, Barbara Lee, Mark DeSaulnier, Ami Bera, Jared Huffman, Ruben Gallego, Raul Grijalva, Suzan DelBene
Date: July 8, 2020
Location: Washington, DC

Dear Secretary Esper and Attorney General Barr,
In light of the U.S. Supreme Court ruling in Bostock v. Clayton County, in which a 6-3 majority ruled
that Title VII of the Civil Rights Act of 1964 protects LGBTQ people from workplace discrimination, we urge the Department of Defense (DOD) to immediately update its policies to eliminate the ban on open transgender military service. Additionally, to prevent further harm to transgender servicemembers, we urge the DOD to instruct the Department of Justice (DOJ) to negotiate the end to litigations challenging the ban.
On April 12, 2019, the Trump administration's policy banning transgender persons from serving openly in the military went into effect. This policy denies transgender people the ability to enlist in the military and puts transgender troops at risk of being discharged for living openly and authentically. The Trump Administration's Ban was implemented against the recommendations of several former Surgeons General and against a wide array of military experts. Additionally, the country's preeminent health care organizations, including the American Psychiatric Association, the American Psychological Association and the American Medical Association, have all issued statements affirming that transgender people can competently serve in the military.
The Bostock decision unambiguously clarified that Title VII's prohibition against discrimination on the basis of sex includes protections for LGBTQ workers. Justice Gorsuch wrote "[t]he statute's message for our cases is equally simple and momentous: An individual's homosexuality or transgender status is not relevant to employment decisions. That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."
There are four lawsuits challenging the ban on open transgender military service on the grounds that it violates the Due Process Clause in the Fifth Amendment of the U.S. Constitution, which like Title VII prohibits sex-based discrimination. The Ninth Circuit court had already ruled in Karnoski v. Trump that heightened scrutiny applies to anti-transgender discrimination. The U.S. Supreme Court's ruling in Bostock will provide significant weight to those already substantial claims: the principle announced--that gender-identity discrimination is discrimination "because of … sex"--applies equally to claims under the Constitution. Prolonging the litigation in the face of almost certain defeat, and thereby prolonging the existing policy, will continue to inflict serious harm on transgender people seeking to serve our country and on those already serving while living in the shadows, enduring the dignitary harm of being told they're a burden.
This policy is an attack on transgender service members who are risking their lives to serve our country and it should be reversed immediately.
We appreciate your timely attention to these matters.