He might have been talking about transgender military service members, but the tweets sent out by the president might trigger backlash against transgender workers in the civilian workforce, as well.
A report from the Society for Human Resource Management warns Trump’s banning of transgender people from military service could result in ostracism against them in the business world, and employment attorneys are warning employers that they’d better be prepared with training to counter that backlash.
"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,” says Nathaniel Glasser, an attorney with Epstein Becker & Green in Washington, D.C.
The tweets from Trump said, “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. 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.”
The statement is a direct reversal of the policy put in place last year when the Pentagon removed the ban on transgender military service. While the 2016 policy forbade discharge of transgender individuals from the Armed Forces, according to emails cited in the report from 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, the recruitment of transgender individuals was postponed until July 1, 2017.
Recruitment was further delayed on June 30, 2017, when Secretary of Defense Jim Mattis announced that the issue would be studied further and no recruitment would begin before January 2018.
In their email, Phillips and Kee write, “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.”
Meanwhile, there’s been no change to the military’s policy on transgender personnel, according to Huffington Post. In a written message to military leaders Thursday, General Joseph Dunford, chairman of the Joint Chiefs of Staff, said, “There will be no modifications to the current policy until the President’s direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance.”
Dunford adds, “In the meantime, we will continue to treat all of our personnel with respect. As importantly, given the current fight and the challenges we face, we will all remain focused on accomplishing our assigned missions.”
Jerame Davis, executive director of Pride at Work, AFL-CIO, a nonprofit that represents LGBT individuals, said in the report, “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.”
Of course, there are those in government who support the president’s position, such as Rep. Vicky Hartzler, R-Mo., who cited erroneous figures in justifying Trump’s decision. Hartzler claimed that paying for transgender surgeries would cost the military $1 billion to $3 billion in medical costs over a 10-year period, although The New York Times reports findings of a RAND Corp. study that the estimated health care costs for including openly transgender people in the military would increase just $2.4 million to $8.4 million a year, representing a 0.04 percent to 0.13 percent increase in spending for service members.
The American Medical Association, meanwhile, has said in a Huffington Post report that the ban on transgender individuals serving in the military isn’t “medically valid.”
In a statement issued on Wednesday, the AMA said, “There is no medically valid reason to exclude transgender individuals from military service. Transgender individuals are serving their country with honor, and they should be allowed to continue doing so.”
The statement continues, “AMA policy also supports public and private health insurance coverage for treatment of gender dysphoria as recommended by the patient’s physician. According to the Rand study on the impact of transgender individuals in the military, the financial cost is a rounding error in the defense budget and should not be used as an excuse to deny patriotic Americans an opportunity to serve their country. We should be honoring their service — not trying to end it.”
There has been no determination issued from either the White House or the Pentagon on what will happen to currently serving transgender individuals.
The Equal Employment Opportunity Commission, the report says, “contends that Title VII of the Civil Rights Act of 1964 protects transgender individuals’ right to be free from discrimination in the workplace.” And Mark Phillis, an attorney at Littler in Pittsburgh, is quoted saying that Trump’s action “appears to be part of a larger issue.”
Phillis says in the report, “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.” It would also overturn any local ordinances providing protections for transgender individuals to use the bathroom that corresponds with their gender identity.
Phillis adds that 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.”
According to Phillips and Kee, who suggest that 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, “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.”
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