Trump ban on transgender troops official policy
President Donald Trump signed a memorandum on 25 August 2017 that directs the US military not to accept transgender individuals as recruits and halts the use of government funds for sex-reassignment surgeries for active personnel unless the process is already under way.
Whilst the order is unequivocal when it comes to banning all new transgender recruits, it gives the Secretary of Defence James Mattis, in consultation with the Secretary of Homeland Security, the authority to determine if transgender people who are already serving in the armed forces can stay, based on ‘military readiness’. The memo called on Mattis to submit his plan on how to implement the changes by February 2018.
According to the Economist, the American military employs more transgender people than any other organisation in the world – around 15,500 – more than 6,000 of whom are on active duty.
In addition to the social and political backlash this policy faces, the Trump administration may soon learn that singling out a class of people for exclusion violates the US constitutional guarantee of equal protection under the law. And as to those transgender soldiers already serving openly, any effort to expel them would face even more profound difficulties.
In the United Kingdom, gender reassignment is one of nine ‘protected characteristics’ covered by the Equality Act 2010. Prior to implementation of the Equality Act, discrimination on grounds of gender reassignment was prohibited by the Sex Discrimination Regulations 1999. The Regulations were prompted by the decision of the European Court of Justice in P v S and Cornwall County Council . The court held that Article 5(1) of the Equal Treatment Directive extended the right not to be discriminated against on grounds of sex to discrimination arising out of gender reassignment, since to dismiss a person on the ground that they intended to undergo, or had undergone, gender reassignment was to treat them unfavourably by comparison with persons of the sex to which they were deemed to belong before their reassignment.
The Equality Act provisions concerning gender reassignment discrimination in the workplace protect a wide range of individuals during all stages of the employment relationship, including recruitment and terms and conditions of employment among others. For instance, it is unlawful for an employer to discriminate directly by treating a job applicant or employee less favourably than others because of gender reassignment. In theory, if Trump’s policy was implemented in the UK, an employer, whether that be the British Army or a bank, could not deny or prohibit an applicant from employment and thus treat them unfavourably based on gender reassignment.
Employers should be careful not to directly or indirectly discriminate against any applicant or employee who plans to, is undergoing or has had gender reassignment in any stage of employment.