A lawsuit might make it easier for young transgender men dealing with the draft.
U.S. District Judge Gray Miller is allowing a lawsuit against the Military Selective Service Act (MSSA) to go forward.
In the lawsuit, the National Coalition for Men (NCFM) is arguing that the MSSA is a form of illegal sexist discrimination. The law requires almost all men in the U.S. – even undocumented immigrants and those who can’t serve in the military due to medical issues – between the ages of 18 and 25 to register for the draft, but not women.
Those who don’t register for the draft could get five years in prison and a $250,000 fine, although no one has been prosecuted for failing to register for the draft since the 1980’s.
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The real punishment is that many government benefits – like financial aid for college, citizenship, and future government employment – are tied to registering for Selective Service.
If the plaintiffs win, everyone could be required to register for the draft, not just men. While that might not feel like a win, the sexist implications of only drafting men is something that Rep. Jackie Speier (D-CA) tried to address in Congress last year but was blocked by Republicans.
“If it does come to a draft, men and women should be treated equally,” Speier said.
But the lawsuit could also make paperwork a little easier for transgender people.
Currently, according to the Selective Service System (SSS), transgender men do not have to register for the draft while transgender women do, no matter whether they transitioned before their 18th birthday or not.
(The site does not mention people whose gender identity is outside the binary, but it’s clear that the SSS is looking only at sex assigned at birth.)
That may seem simple, but it could create headaches for transgender men later in life. If a transgender man changes the gender marker on his paperwork and applies for federal financial aid, he has to get a letter from the SSS saying that he’s exempt from registering for the draft.
The letter requires filling out a form and sending a birth certificate in to the SSS and can take several months to receive. The letter could be necessary throughout a trans man’s life if he ever wants to access a government benefit tied to the draft.
A trans man with different gender markers on different official forms could have an even harder time with administrative issues, especially because of Selective Service issue. A data mismatch could make it harder for a trans man to receive federal financial aid, even if he has an exemption.
While the effects of Selective Service registration on trans men are administrative in the absence of a draft, if a draft were enacted, it’s hard to know how this would affect transgender women.
Since the U.S. has not had a draft in decades, one can only speculate. Since transgender women have to register for the draft but could be blocked from military service if Donald Trump gets his way, a trans woman who gets drafted will have to prove her gender identity to the military in order to avoid service.
Considering how cisgender people often fear that cis men will “fake” being trans in order to get a benefit reserved for women, this process would probably be less than pleasant. But it would be better than the alternative of being forced to de-transition in the military.
Maintaining a ban on transgender people in the military during a draft, though, might be difficult, especially if the lawsuit is successful and both men and women are drafted.
In 1981, the Supreme Court ruled that the government could discriminate for Selective Service registration on the basis of sex because women could not serve in combat positions. But that restriction was lifted in 2013, so the NCFM’s lawsuit was allowed to go through.
Since a draft is unlikely right now, expanding registration for Selective Service to all people in the U.S. would eliminate another instance where the government discriminates on the basis of sex.
And if politicians who oppose expanding Selective Service registration to women want to keep women from being drafted, they could do more to prevent a draft from being necessary in the first place.
