Five transgender servicemembers recently filed suit following President Trump's July 26 tweets announcing that transgender individuals will not be allowed to openly serve in the Armed Forces. Jane Doe 1, et al, v. Trump, No. 1:17-cv-01597, complaint filed for declaratory and injunctive relief (D.D.C. 08/09/17).

This policy shift reverses existing guidelines that began allowing transgender individuals to serve openly in the military on June 30, 2016. The ban will impact at least three Department of Defense policy documents, along with any division-specific policies. DOD, Military Service of Transgender Service Members (June 2016); DOD, Transgender Service in the U.S. Military: An Implementation Handbook (September 2016); DOD, Transgender and Gender Transition Commanding Officer's Toolkit (November 2016).

On the same day as the president’s tweets—July 26—the Department of Justice argued that Title VII does not cover sexual orientation discrimination, taking the opposite position of the Equal Employment Opportunity Commission in an amicus brief submitted to the 2d U.S. Circuit Court of Appeals. Zarda v. Altitude Express, Inc., 117 LRP 30114, No. 15-3775 (2d Cir. 04/18/17); EEOC amicus curiae brief filed (2d Cir. 06/23/17); DOJ amicus curiae brief filed (2d Cir. 07/26/17).

Shannon Farmer, a partner at Ballard Spahr, told cyberFEDS® that Zarda will have limited impact for federal employees, who can choose to pursue a sexual orientation claim through the administrative process, which follows the EEOC's holding that Title VII does encompass sexual orientation claims. Baldwin v. Department of Transportation, 115 LRP 31813 (EEOC OFO 2015).

Nonetheless, "it will be interesting to see what if anything the court will do with the DOJ and EEOC having split views because they don't have to address it all and could just leave that issue on the side."

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