The Transgender Military Ban: “Sex” and “Gender Identity” Under United States and New Zealand Law
In 2017, US President Donald Trump reinstated a previously overturned military ban, forcing transgender individuals to discharge from the US military and barring any new transgender recruits. In the wake of this announcement came four cases challenging the ban, invoking equal protection arguments under the Fifth Amendment, which are still awaiting an ultimate decision by the US Supreme Court. This Note analyzes the arguments raised in these cases and their use of “sex” and “gender” jurisprudence and compares them to similar arguments in New Zealand, whose national military is world-renowned for its LGBT+ inclusion. This Note argues that the United States should adopt New Zealand’s queer-friendly policies, as well as their reading of “sex-based” discrimination as including “gender identity.” This reading is more conducive to recognizing transgender rights, as they would subsequently fall under existing “sex-based” protections. Lastly, this Note addresses the legislative, executive, and judicial approaches in the United States that could lead to an end of the ban, incorporating the 2020 US Supreme Court decision in Bostock v. Clayton County as a point of analysis.
Recommended Citation: Matthew Treiber, The Transgender Military Ban: “Sex” and “Gender Identity” Under United States and New Zealand Law, 44 Fordham Int'l L.J. 261 (2020).