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Marginalization of transgender people in federal workforce might be mirrored in civilian workplace
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Transgender people risk greater ostracism at work after President Donald Trump banned them from military service in a series of July 26 tweets. The president's new policy may intensify backlash against transgender people, according to Jerame Davis, executive director of Pride at Work, AFL-CIO, a nonprofit that represents lesbian, gay, bisexual and transgender (LGBT) individuals. Training to prevent such backlash is in order, employment attorneys say.
"It is possible that individuals may take the tweets as encouragement to act in a discriminatory manner against transgender individuals. Employers must be aware of their legal obligations to address any potential backlash," said Nathaniel Glasser, an attorney with Epstein Becker & Green in Washington, D.C.
"After consultation with my generals and military experts, please be advised that the United States government will not accept or allow transgender individuals to serve in any capacity in the U.S. military," Trump tweeted. "Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender[s] in the military would entail."
Pentagon Lifted Ban on Transgender Military Service Last Year
A little more than a year ago, the Pentagon lifted its ban on transgender people serving openly in the military, noted Elizabeth Marvin, an attorney with Lewis Baach in Washington, D.C. Reversing the decision "will undoubtedly adversely impact transgender service members who are currently serving openly under the Obama-era policy," she said.
The 2016 policy prohibited discharge of transgender individuals from the Armed Forces, noted Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y., and Conrad Shawn Kee, an attorney with Jackson Lewis in Salt Lake City, in an e-mail. Recruitment of transgender individuals was, however, postponed until July 1, 2017.
On June 30, 2017, Secretary of Defense Jim Mattis announced that recruitment of transgender individuals would be delayed until January 2018 while the matter was studied further. "President Trump's tweet suggests that the policy for transgender individuals serving in the Armed Forces, or at least for recruitment, will return to the policy in effect before June 2016," Phillips and Kee said.
"At a time when transgender people are seeing legislation in state after state attacking their right to use the restroom that best suits them, this ban sends a clear message that the federal government thinks transgender discrimination is perfectly fine," Davis said.
Rep. Vicky Hartzler, R-Mo., welcomed Trump's reversal in policy, saying that the rescission of President Barack Obama's transgender military policy "has the best interests of the military in mind." She said, "The costs incurred by funding transgender surgeries and the required additional care it demands should not be the focus of our military resources."
The Center for Military Readiness, a public policy organization analyzing military issues, called for a reversal in Obama's transgender military policy as well, saying that the policy:
Hartzler said that paying for transgender surgeries would cost the military more than $1 billion to $3 billion in medical costs over a 10-year period.
But Sam Schwartz-Fenwick, an attorney with Seyfarth Shaw in Chicago, questioned these figures, saying, "The limited studies to date on health care costs associated with transgender employees show that the cost of providing such coverage is de minimis." The New York Times reports that a RAND Corp. study found that the estimated health care costs for including openly transgender people in the military would rise $2.4 million to $8.4 million a year, representing a 0.04- to 0.13 percent increase in spending for service members.
Sen. John McCain, R-Ariz., who is chairman of the Senate Armed Services Committee, criticized Trump's tweets, saying that the Department of Defense (DOD) had decided to let transgender individuals stay in the military. "We should all be guided by the principle that any American who wants to serve our country and is able to meet the standards should have the opportunity to do so—and should be treated as the patriots they are," he said. McCain noted that the Senate Armed Services Committee will conduct oversight on the issue of transgender individuals serving in the military.
Matt Thorn, executive director of OutServe-SLDN, which represents the LGBT community in the military, noted in a statement that his organization would sue Trump over the reversal in policy, if the policy is actually reversed; tweets aren't an officially accepted way to implement policy changes. And forcing thousands of transgender individuals who currently serve out of the military would hinder U.S. operations in two ongoing conflicts in Afghanistan and Iraq and possible conflicts with Syria and North Korea.
Schwartz-Fenwick said the new policy likely will be challenged as a form of sex discrimination barred by the Equal Protection Clause of the 14th Amendment.
Both Sides Likely to Be 'Impassioned'
HR should be aware that Trump's decision "will impassion people on both sides of the issue. Managers need to be educated about transgender issues, and companies should adopt a zero-tolerance policy regarding harassment of transgender employees," Marvin said. "Work should be a place where transgender employees feel safe and are not judged."
Trump's decision "appears to be part of a larger issue," said Mark Phillis, an attorney at Littler in Pittsburgh. "The president's announcement comes the day after the Texas Senate gave preliminary approval to a bill that would require that all restrooms, showers and locker rooms in public schools and other state and local government facilities be used only by persons of the same sex as stated on the person's birth certificate." The bill also would overturn local ordinances that provide protections for transgender individuals to use the bathroom that corresponds with their gender identity.
The Equal Employment Opportunity Commission (EEOC) contends that Title VII of the Civil Rights Act of 1964 protects transgender individuals' right to be free from discrimination in the workplace. The EEOC "has cited employers' attempts to restrict transgender employees from using the restroom that corresponds with their gender identity or expression as evidence of discrimination," Phillis said.
Employers might want to consider reissuing their harassment prevention policies and implementing a transgender policy to send the message that discrimination against transgender employees will not be tolerated, Phillips and Kee suggested.
"Discrimination against transgender individuals will continue to be prohibited in 19 states for civilian employees of the federal government and for employees of federal contractors," they noted.
[SHRM members-only toolkit: Managing Equal Employment Opportunity]
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