John Bernans, Associate Member, University of Cincinnati Law Review
Title VII of the Civil Rights Act is a federal statute that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. Recently, President Trump indicated that he planned to implement a ban on transgender individuals serving in our country’s military. The Department of Defense and the Department of Homeland Security have generally prohibited openly transgender individuals from serving in the United States military and authorized the discharge of such individuals. Courts interpreting Title VII of the Civil Rights Act have held that sexual orientation is not a protected class under the statute. Historically, courts believed that sex discrimination did not include discrimination based on an individual’s sexual orientation. Because of this, many of the federal courts’ prior decisions have held that one cannot seek relief or a legal remedy for a sexual orientation discrimination claim brought under Title VII. Sexual orientation discrimination claims, partly because of President Trump’s new policy, have come to the forefront in recent months. Two cases of note, Hively v. Ivy Tech Community College and Evans v. Georgia Regional Hospital are important because they show a split in circuit decisions. Analyzing these cases, legislative history, and a possible Supreme Court ruling will all play key roles in determining the validity of President Trump’s ban on transgender military personnel. This plan is controversial and based on Supreme Court precedent, it is also illegal.
Hively v. Ivy Tech Community College
The analysis of the most recent sexual orientation cases begins with Hively v. Ivy Tech Community College. In this case, an adjunct professor brought suit against the community college alleging that she was denied fulltime employment and promotions based on her sexual orientation. The case went to the Seventh Circuit, where the court rejected her claim as beyond the scope of Title VII.
Rehearing the case en banc, the Seventh Circuit looked to define what it meant to discriminate on the basis of sex and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. In holding sexual orientation was in fact covered under Title VII, the court used Oncale as their guiding light. The court saw no justification in the statute or their precedent for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. Hively alleges that if she had been a man marrying a woman and all other character factors had been the same, Ivy Tech would not have refused to promote her and would not have fired her. In addressing the gender conformity argument, the court stated, “Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.” The court concluded by stating that it would require “considerable calisthenics to remove ‘sex’ from ‘sexual orientation.” With the logic of the Supreme Court and common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, it persuaded the court to overrule their previous holding in Hively.
Evans v. Georgia Regional Hospital
While the Hively en banc court may have ruled sexual orientation is actionable under Title VII of the Civil Rights Act, many courts follow the reasoning the first Hively court used. The Eleventh Circuit followed this logic in Evans v. Georgia Regional Hospital. Jameka Evans, a hospital security guard, alleged she was harassed by her supervisor, denied promotions, and punished because her status as a gay female did not comport with her employer’s gender stereotypes.
In its opinion, the Eleventh Circuit relied heavily upon stare decisis. The court stated that binding precedent in the matter of sexual orientation foreclosed an action under Title VII. In their reasoning, the court relied on Blum v. Gulf Oil Corp. The Blum court held that a discharge for homosexuality is not prohibited under Title VII and the Supreme Court had never squarely addressed whether Title VII prohibits sexual orientation discrimination. The court went on to list a case from almost every circuit that held sexual orientation is not covered under Title VII. The court reasoned that “sex” and “sexual orientation” are different and sexual orientation does not fall under the scope of Title VII. Distinguishing the Evans case from cases such as Price Waterhouse, the court explained that in order to overturn circuit precedent, a decision by the Supreme Court must be “on point, or contrary” to the case and the Eleventh Circuit did not believe that Price Waterhouse applied. Based on the binding precedent and prior case law, the Eleventh Circuit affirmed the dismissal of Evan’s sexual orientation claim.
The Legality of the Transgender Ban
The legality of President Trump’s transgender military ban will be determined based on the manner in which the plaintiffs bring their claim. If a claim against the transgender ban is brought under the gender non-conformity concept, the Court will deem the plan to be illegal. If the plaintiffs bring their action using a sexual orientation, there is not much precedent to support them. Most circuits have ruled that Title VII does not cover sexual orientation, making it difficult for the Supreme Court to say otherwise. However, this is not the most likely route for the plaintiffs to pursue. For the purposes of this article, it is safe to assume that potential plaintiffs would bring their claim under a gender non-conformity line of reasoning.
The Supreme Court has affirmatively stated that gender non-conformity arguments are cognizable under Title VII. Price Waterhouse was the first to hold that the practice of gender stereotyping falls within Title VII’s prohibition against sex discrimination, instead of sexual orientation discrimination. In analyzing our society’s views around sex in America, it reveals that modern America views heterosexuality as the norm and other forms of sexuality as odd or strange. In the case of the transgender ban in the military, this would be even more non-conformity than homosexuality. The ban directly targets an individual who not only does not conform to gender norms, but they want to represent themselves as the opposite gender. These individuals are being discriminated against because they do not conform to the idea of what we think conformity to your gender assignment should be. The military is no different from any other employer in that they cannot discriminate based upon an individual’s sex. This is exactly what the military would be doing if it could be proved that the ban penalizes individuals for their gender non-conformity.
As the court stated in Evans, a claim for legal relief comes down to alleging the proper facts to prove gender non-conformity. Although the Court in Evans held that Evans’s claim for relief was more sexual orientation than gender non-conformity, the court did state that if she had framed the facts differently, her case would have been heard. Like the Hively court, Evans stated that discrimination against a transgender individual was in fact sex-discrimination. However, plaintiff must be cautious when alleging discrimination based on gender non-conformity. Multiple courts have held that gender non-conformity claims are a way to mask plaintiff’s real claims of sexual orientation discrimination. The Evans court however took a major step forward however when they held that gender non-conformity is not just another way to claim discrimination based on sexual orientation, but instead, constitutes a separate, distinct avenue for relief. In terms of President Trump’s transgender ban, plaintiffs bringing a suit would need to allege proper facts to show that they are being discriminated against because they do not conform to a male or female stereotype. For transgender military service individuals, these sets of facts and allegations should provide a claim for legal relief.
One important aspect of President Trump’s transgender ban that needs to be considered is the President’s power as Commander-in-Chief. Constitutional issues, specifically Article II issues, are something that must be considered when analyzing the ban. Under Article II, the president is the commander of the armed forces. The President is entrusted with highly sensitive information and has the knowledge to make critical military decisions. Because of this knowledge, the President has significant discretion when it comes to creating policies concerning national security. However, when it comes to the transgender ban, this policy does not fall within the President’s broad discretion. However broad the discretion is, the President still cannot discriminate in the military on the basis of things like race or sex. Because the ban discriminates on the basis of sex, the President will not be able to use his Article II powers.
In the short term, analyzing a claim against President Trump’s transgender ban in the military will be determined by how the plaintiffs frame the issue and how the court decides to look at it. Whichever route the plaintiff’s take in their claims, there is a chance that the court will refuse to provide protection. Potential plaintiffs must frame their discrimination carefully and allege facts that clearly allege discrimination based on gender non-conformity. The transgender policy involves discrimination on the basis of sex. Sex discrimination can occur when one is discriminated against for not conforming to the gender ideals of our society. The plaintiffs in a potential case must allege proper facts to support their non-conformity suit. If plaintiffs do this and bring a claim against the transgender ban, it is likely that the Court will strike the ban for violating Title VII.
President Trump’s transgender military ban, if analyzed through the lens of gender non-conformity, will likely be violate Title VII. The transgender ban directly targets individuals because they do not conform to society’s view of what a male or female should act or look like. Although sexual orientation claims are not typically actionable under Title VII, this ban would be hard not to be viewed through the conformity perspective. The Court has ruled in multiple cases that gender non-conformity discrimination is discrimination based off of sex and that is something that is protected under Title VII.
 Civil Rights Act of 1964 §7
 Memorandum for the Secretary of Defense, Military Service by Transgender Individuals
 Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1255-1257 (11th Cir. 2017)
 Hively v. Ivy Tech Community College, 853 F.3d 339, 345 (7th Cir. 2017)
 Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017)
 Hively v. Ivy Tech Community College, 830 F.3d 698, 699 (7th Cir. 2016)
 Hively v. Ivy Tech Community College, 853 F.3d 339, 343 (7th Cir. 2017)
 Held that same sex harassment in the workplace was actionable under Title VII of the Civil Rights Act.
 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)
 Hively, 853 F.3d at 344
 Id. at 346
 Id. at 350
 Id. at 351
 Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1251 (11th Cir. 2017)
 Id. at 1255
 Id. at 1256
 Id. at 1256
 Price Waterhouse v. Hopkins, 490 U.S. 228, (1989)
 Hively, 853 F.3d at 342
 Evans, 850 F.3d at 1253
 Id. at 1254
 Id. at 1249
 Article II, United States Constitution