New York City Bar Association Issues Statement in Support of Transgender Service Member Policy

Just over one year ago, after a comprehensive review process, the U.S. Department of Defense (“DOD”) announced a change in policy permitting the open service of transgender Service members in the U.S. military (the “Policy”). However, last month, Defense Secretary Jim Mattis approved a six-month delay in allowing transgender recruits to enlist in the military.

In light of “this disappointing decision and other precipitous changes in the administration’s positions with respect to transgender people’s civil rights,” the New York City Bar Association has issued a public statement in support of the Policy.

The City Bar’s support, as expressed in the statement drafted jointly by its Lesbian, Gay, Bisexual and Transgender Rights Committee and its Military Affairs and Justice Committee, “is based both on the fact that the Policy corrects an extensive history of discrimination against transgender Americans, and the fact that the DOD issued the Policy after a comprehensive review process which concluded that a policy of open service is consistent with military readiness and strengthens the U.S. military. Implementation of the Policy will also avoid constitutional problems and bring the DOD in line with current civil legal standards for sex discrimination.”

Noting that transgender people have served in the U.S. military “since the nation’s inception,” the statement reviews the history of discrimination on transgender Americans in military and civilian life. Despite the U.S. Military having banned transgender people from serving openly prior to 2016, the statement cites data indicating that “transgender people are more likely than the U.S. population as a whole to have served in the armed forces.” The statement also devotes sections to the “Constitutional concerns” of preventing transgender people from serving in the military and to how the new policy comports with recent developments in civil anti-discrimination law.

Once the American Psychiatric Association in 2013 removed “Gender Identity Disorder” from the “Diagnostic and Statistical Manual of Mental Disorders” and the American Medical Association in 2015 concluded that there is no medical basis to exclude transgender individuals from military service, Defense Secretary Ashton Carter announced a RAND study that led to the DOD’s change in policy last year. Based on the study, the Department concluded “that open service by transgender Service members while being subject to the same standards and procedures as other members…is consistent with military readiness and with strength through diversity.” The RAND report highlighted the very small proportion of the military that the new policy would affect, and forecast that less that 0.1 percent of total military Service members would seek transition-related care that could potentially limit their ability to deploy.

The City Bar’s statement concludes, “The U.S. Military’s Policy allowing the open service of transgender Service members is legally, financially, and ethically sound. Transgender Service members are legally and morally entitled to the same rights as other Service members, and the DOD, RAND, and comparisons to foreign military services have shown that recognizing those rights will have no serious impact on the U.S. Military, its finances, its readiness, or on unit cohesion. The prior ban on open service was morally and legally wrong. It cannot withstand scrutiny.”

The statement can be read here:

About the Association
The New York City Bar Association, since its founding in 1870, has been dedicated to maintaining the high ethical standards of the legal profession, promoting reform of the law and access to justice, and providing service to the profession and the public. The Association, through its 24,000 members, continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.