Unfinished Business of Repealing “Don’t Ask, Don’t Tell”: The Military’s Unconstitutional Ban on Transgender Individuals

Discrimination based on gender identity is a form of sex discrimination. In  Price Waterhouse , the Supreme Court clarified that “sex” encompasses more than  biological genitalia. That ruling eviscerated the holding of Holloway , Sommers , and  Ulane —the three cases the Tenth Circuit relied on in declaring that sex  discrimination did not encompass gender nonconformity. At least since Price  Waterhouse , discrimination against someone because of that individual’s failure to conform to sex stereotypes must be considered a form of sex discrimination. As  transgenderism is defined as nonconformity “to that typically associated with the  sex . . . assigned at birth,” discrimination based on gender identity is a form of  discrimination based on sex. Furthermore, transgender individuals are either  excluded from the military under DoDI 6130.03 because of the genitalia assigned at birth (which is discrimination based on sex), or because they are acting against the  typical gender mores assigned to the sexes (which is discrimination based on sex  stereotypes). Regardless, intermediate scrutiny applies.