The United States and Iran: Two Transgender Military Bans
Only nineteen countries in the entire world officially welcome transgender troops in the military and allow them to serve openly in their preferred gender identity.1 When President Trump’s recent transgender military ban went into effect, the United States left this progressive list of nations and instead reverted to affirmatively banning transgender troops from serving in the armed forces. One other nation with such a ban is Iran.2 While the two countries are starkly different, their transgender policies align. Hopefully, in the United States, this ban will not remain for long as constitutional challenges make their way through the court system. However, an end to the Iranian ban is not in sight.
When President Trump opened his Twitter account on July 26, 2017, he changed the course of the American military, and of transgender rights in the nation:
After consultation with my Generals and military experts, please be advised that the United States Governments 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 in the military would entail. Thank you.3
With this tweet, the United States set course to leave the openly-inclusive group of nineteen countries that allow transgender individuals to serve in the armed forces in favor of banning open transgender military service.4 The United States had only begun allowing transgender service people to serve openly in their chosen gender identity in 2016.5As a response, four claims were filed in federal district court to challenge the constitutionality of the new military ban.6 Each of the cases argues that, under the Fifth Amendment’s implicit equal protection clause,7 the federal government is constitutionally forbidden from forcing transgender troops to discharge if they refuse to serve in their born sex and from denying their admission into the armed forces for not conforming to their born sex.8 While the Supreme Court has yet to hear any of the cases on the merits, if they were to proceed that far, the Court would be confronted by the plaintiffs’ powerful equal protection arguments.
In Doe 1 v. Trump, for example, the District Court for the District of Columbia applied an elevated level of scrutiny to address the equal protection of transgender troops.9 The court was addressing a motion for preliminary injunction of the trans-military ban.10 Applying intermediate scrutiny, the court found that, in a case on the merits, the government likely could not demonstrate a substantial relationship between the ban and the alleged reasons for its implementation.11
In fact, the court found12 that the motives for the transgender military ban run counter to the government-sanctioned 2016 RAND Corporation study “Assessing the Implications of Allowing Transgender Personnel to Serve Openly.”13 This study found that the cost of health insurance for transgender troops would not increase significantly, the main argument against their inclusion.14 Moreover, the study analyzed the effects of similar foreign military policies and found that there was little to no impact of transgender troop integration on unit cohesion, operation effectiveness, or readiness.15
The 2016 RAND study was cited by the Obama administration upon the announcement that the U.S. military would allow transgender troops to serve openly.16 The court in Doe 1 v. Trump found that this study would likely be controlling in a case on the merits, meaning that the plaintiffs would likely prevail unless the government could produce research undercutting its findings for the military ban.17
Though slow to move through the courts, each of the aforementioned cases proceeds with vigor. The court in Doe 1 v. Trump, for example, issued its ruling on March 8, 2019, that there is likelihood for success on the merits.18 In this, the court acknowledges that this is an uphill battle for the government.19
Because of the extensive history of successful equal protection litigation in the United States, and the custom of the military becoming more inclusive, there is cause for hope that the US transgender military ban will be ruled unconstitutional. However, the legal tools that advocates are using to fight the US ban do not exist in Iran, where it is unlikely that a comparable ban will be lifted.
Similar to the United States, Iran has instituted a transgender military ban.20 In Iran, once males reach the age of eighteen, they are required to serve in the military.21 The only exemptions to this mandatory military service are for only sons, sole caretakers, or men suffering from a mental or physical illness.22 Iran’s transgender military ban takes a slightly different form than the US ban.23 Iranian transgender men are classified as suffering from a mental illness.24 This classification leads to a mandatory exemption from the military.
In the United States, the American Psychological Association (hereinafter “APA”) no longer finds this diagnosis legitimate, because it fails to account for recent medical research.25 The APA no longer describes transgender identity as a mental illness.26 Instead, many transgender individuals are now known to suffer from “gender dysphoria.”27 Alternatively, the terminology utilized by the Iranian military identifies transgender identity as a psychological disorder, resulting in humiliation and discrimination for many exempted transgender individuals.28 Iran refers to transgender individuals as “transsexuals,” who are engaged in “moral and sexual deviancy.”29
The process required to obtain an exemption is invasive and lengthy.30 There are physical as well as psychological examinations that individuals must undergo.31 This differs from the United States, which bans only those who openly identify as transgender. Certain trans men have been able to acquire exemptions without being identified as having a mental disorder, but this is only a small fraction of those who are banned from serving because of their transgender identity.32 Overall, the animosity towards transgender individuals in Iran seems more apparent than in the United States, and therefore it is unlikely that the transgender ban will be removed from the Iranian military prior to the United States.
While the constitutional challenges to the transgender military ban in the United States are strong and will proceed through the court system, the medical diagnosis utilized by the Iranian military limits the challenges individuals may bring. It is likely that because of the technicality of the classification as a psychological disorder, the ban will continue in Iran.
Lauren Boix and Matthew Treiber are staff members of Fordham International Law Journal Volume XLIII.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.
1 Shayanne Gal and Ashley Collman, Just 19 Countries Would Accept Transgender Soldiers if Trump's Ban Ends up Going into Place, Insider, (Feb. 5, 2019), https://www.insider.com/countries-that-let-transgender-soldiers-serve-2019-2; Outright Action Int’l, Human Rights Report: Being Transgender in Iran 28, https://www.outrightinternational.org/sites/default/files/OutRightTransReport.pdf.
2 Gal and Collman, supra note 1.
3 Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 5:55 AM), https://twitter.com/realDonaldTrump/status/890193981585444864; Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 6:04 AM), https://twitter.com/realDonaldTrump/status/890196164313833472; Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 6:08 AM), https://twitter.com/realDonaldTrump/status/890197095151546369.
4 Gal and Collman, supra note 1.
5 Timeline, GLAD & NCLR, https://notransmilitaryban.org/timeline/ (last visited Nov. 4, 2019).
6 Id. First, the NCLR (National Center for Lesbian Rights) and GLAD filed Doe 1 v. Trump in the U.S. District Court for the District of Columbia. Three cases followed shortly thereafter. The ACLU filed Stone v. Trump, in the U.S. District Court for the District of Maryland. Lambda Legal filed Karnoski v. Trump, in the U.S. District Court for the District of Washington. And Equality California filed Stockman v. Trump in the U.S.District Court for the Central District of California..
7 “In numerous decisions, [the Supreme Court] ‘has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws.’” Davis v. Passman, 442 U.S. 228, 234 (1979).
8 See Doe 1 v. Trump, 275 F.Supp.3d 167, 196 (D.D.C. 2017).
9 Id. at 208.
10 Id..
11 Id. at 211-12.
12 Id. at 212-13. Here, the court notes that the Secretary of Defense concluded that the needs of the military were best served by allowing transgender individuals to openly serve. “In short, the military concerns purportedly underlying the President's decision had been studied and rejected by the military itself.”.
13 Agnes Gereben Schaefer et al., Rand Corporation, Assessing the Implications of Allowing Transgender Personnel to Serve Openly (2016), https://www.rand.org/pubs/research_reports/RR1530.html.
14 Id. at 36.
15 Id. at 62-63..
16 Press Release, U.S. Dep’t of Def., Secretary of Defense Ash Carter Announces Policy for Transgender Service Members (Jun. 30, 2016), https://www.defense.gov/Newsroom/Releases/Release/Article/821675/secretary-of-defense-ash-carter-announces-policy-for-transgender-service-members/.
17 Doe 1, 275 F.Supp.3d at 212-14.
18 Id. at 207-08.
19 See id.
20 Outright Action Int’l, supra, note 1, at 28.
21 Id.
22 Id.
23 See id.
24 Id. at 29.
25 Marty Lederman, Untangling the Issues in the “Transgender in the Military” Litigation, Just Security (Jan. 7, 2019), https://www.justsecurity.org/62128/untangling-issues-transgender-military-litigation/.
26 Roy Richard Grinker, Being Trans Is Not a Mental Disorder, NY Times, (Dec. 6, 2018), https://www.nytimes.com/2018/12/06/opinion/trans-gender-dysphoria-mental-disorder.html.
27 Id.
28 Immigration and Refugee Bd. of Canada, Responses to Information Requests (RIR), ¶ 2.2, https://www.justice.gov/sites/default/files/pages/attachments/2015/12/07/irn104809.e.pdf.
29 Id.
30 See id.
31 Id.
32 Outright Action Int’l, supra note 1, at 31.