Monday's decision from the D.C. Circuit Court of Appeals regarding the Trump administration's ban on transgender military service is a bit of a mixed bag, practically speaking, but the court's majority used extraordinarily charged language in its opinion.
The three-judge panel rendered about as fractured a decision as you might find, with two of the judges opting to keep the lower court preliminary injunction on the ban in place as to current service members (with one dissenting), and two of the judges (different combination) opting to vacate the injunction as to prospective recruits and to narrow the injunction as to named plaintiffs only, rather than the universal scope set forth by the district court.
While both sides of the issue garnered a partial win here, the court handed the Trump administration one of its most significant judicial setbacks yet on transgender policy, concluding challengers are likely to succeed on equal protection claims that key parts of the Pentagon’s policy are rooted in unconstitutional animus rather than military necessity.
At issue in the case is Executive Order 14183, signed by President Trump on January 27, 2025, which proclaimed that persons “expressing a false ‘gender identity’ divergent from an individual’s sex cannot satisfy the rigorous standards necessary for military service.” Further, from the majority opinion:
The President, and later Secretary of Defense Pete Hegseth (now redesignated as Secretary of War), also declared that persons afflicted with gender dysphoria are unfit for military service because, among other things, the character of such persons (in the President’s and Secretary’s words) is “inconsistent” with the “high standards . . . [of] honesty, humility, . . . and integrity.” DEP’T OF DEF., ADDITIONAL GUIDANCE ON PRIORITIZING MIL. EXCELLENCE AND READINESS (2025) (hereinafter “Hegseth Policy”); see also J.A. 50.
D.C. District Court Judge Anna Reyes had previously enjoined the policy nationwide.
SEE: Radical Judge Blocks Trump Admin's Military Transgender Ban - but There's a Problem
As indicated, the panel affirmed the preliminary injunction as to retention of current servicemembers, vacated it as to accession, and narrowed the relief to the named plaintiffs (in light of the Supreme Court's universal injunction precedent set in last term's Trump v. CASA decision).
In affirming the injunction as to current servicemembers, Judge Robert Wilkins (Obama) reasoned:
[T]he record shows that the purpose of the Hegseth Policy is to target applicants and servicemembers who express what the Administration believes is a “false gender identity,” and the Policy goes far beyond disqualifying persons currently or recently suffering from gender dysphoria. Some of those disqualifications are completely unexplained and have no reasonable justification. The sharp contrast to the Mattis Policy, adopted in the first Trump Administration, which allowed servicemembers who were transgender or who had suffered from gender dysphoria to remain in the military, appears to be driven by the bare desire to harm a politically unpopular group: persons who identify as transgender. As such, at this preliminary stage, I conclude that the Hegseth Policy is both arbitrary and based upon animus, and for those reasons the Policy violates Plaintiff-Appellees’ constitutional right to equal protection of the law.
And later:
But even if this were the run-of-the-mill case where the classifications are merely unexplained and we were left with only circumstantial evidence of animus, the Hegseth Policy contains classifications that are “‘divorced from any factual context from which we c[an] discern a relationship to legitimate state interests[,]’ and ‘[their] sheer breadth [is] so discontinuous with the reasons offered for [them]’ that the [classifications] see[m] ‘inexplicable by anything but animus.’” See Hawaii, 585 U.S. at 706 (quoting Romer v. Evans, 517 U.S. 620, 632, 635 (1996)). These unexplained and unreasoned departures from standard protocols are the kind of “unusual deviation” that provide “strong evidence of a law having the purpose and effect of disapproval of a class” of individuals. See United States v. Windsor, 570 U.S. 744, 746 (2013).
This is unusually strong language coming from the court, particularly in the military context, where courts tend to defer to the executive.
Judge Judith Rogers (Clinton) concurred in Wilkins' decision, but she would have gone further and affirmed the injunction as to prospective servicemembers as well.
Judge Justin Walker (Trump) dissented from the majority on affirming any portion of the injunction, emphasizing the importance of deference on military matters. One added bright spot for the administration: Walker and Wilkins did agree on narrowing the scope of the injunction to the named plaintiffs.
The administration will undoubtedly be seeking rehearing by the court en banc and appealing this decision to the Supreme Court, so this one's not over, but the sharp language from the appellate court here signals continued resistance from the judicial branch on many key Trump administration policies.
Editor's Note: Thanks to President Trump and War Secretary Pete Hegseth's leadership, the warrior ethos is coming back to America's military.
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