Split DC Circuit sides with Pentagon on transgender military ban

WASHINGTON (CN) — A D.C. Circuit panel on Tuesday froze a federal judge’s order blocking President Donald Trump’s effort to widely bar transgender people from serving in the military, finding the judge afforded “insufficient deference” to Secretary of Defense Pete Hegseth’s judgment.

In a 2-1 decision led by two Trump appointees, the appeals panel stayed U.S. District Judge Ana Reyes’ preliminary injunction, which was based on her analysis that the policy wrongfully targets trans soldiers despite evidence that their service improves military readiness.

U.S. Circuit Judges Gregory Katsas and Neomi Rao ruled that Hegseth’s policy likely did not violate the Constitution’s Equal Protection Clause and does not trigger any form of heightened scrutiny as a result, pointing to the Supreme Court’s recent decision in United States v. Skrmetti.

“In *Skrmetti,*the Supreme Court held that a law prohibiting the use of hormones to treat gender dysphoria in minors ‘classifies on the basis of medical use’ and thus does not discriminate based on either sex or transgender status,” Katsas wrote. “The same reasoning would seem to cover the Hegseth Policy, which classified based on the medical condition of gender dysphoria.”

“Skrmettialso casts significant doubt on the proposition that a classification based on transgender status would trigger heightened scrutiny,” Katsas added.

Hegseth’s Feb. 26 policy — created at Trump’s instruction per his “Prioritizing Military Excellence and Readiness” executive order — would effectively disqualify all trans people from service unless they receive an exception.

Both Trump’s order and Hegseth’s policy focus on concerns that people diagnosed with or who have a history of gender dysphoria are unfit for and unable to meet the rigorous standards necessary for military service.

Reyes, a Joe Biden appointee, had blocked enforcement of the policy on March 18, ruling the mandate was “rushed and reached a preordained result,” wasn’t based on analysis and was undermined by Hegseth and Trump’s public statements referring to it as a total ban.

“The president has the power — indeed the obligation — to ensure military readiness,” Reyes said then. “At times, however, leaders have used concern for military readiness to deny marginalized persons the privilege of serving. First minorities, then women in combat, then gays filled in that blank.”

The plaintiffs in the case include 14 active duty service members who collectively have served more than 130 years in the military across several branches, served overseas from Afghanistan to Kuwait and have earned over 80 commendations, including a Bronze Star and two Global War on Terrorism Service medals, among others.

Hegseth’s policy effectively restored a 2018 ban — which reversed a 2016 policy allowing trans individuals to serve for the first time — issued by former Defense Secretary James Mattis.

The so-called Mattis policy was based on the “professional military judgment” of “senior uniformed and civilian Defense Department and U.S. Coast Guard leaders,” but was quickly challenged in court.

In 2019, a D.C. Circuit panel sided with the government and dissolved a similar injunction blocking enforcement of the Mattis policy, finding it “plausibly relied upon the considered professional judgment of appropriate military officials and appeared to permit some transgender individuals to serve in the military.”

The decision was effectively upheld by the Supreme Court when it stayed two similar injunctions. The stays remained in place until former President Joe Biden took office and reversed the Mattis policy.

Katsas wrote that, even if Hegseth’s policy triggered some form of heightened scrutiny, “decades of precedent” required the judiciary to “tread carefully when asked to second-guess” considered military judgments.

“And we must do so even in cases involving sex-based or other quasi-suspect classifications,” Katsas wrote, adding that the court had strongly suggested the Mattis plan likely did not violate equal protection.

U.S. Circuit Judge Cornelia Pillard, a Barack Obama appointee, wrote a 27-page dissent, slamming her colleagues for siding with the government despite a lack of evidence the policy “serves any purpose other than the indulgence of animus.”

“The majority’s opinion makes it all but inevitable that thousands of qualified service members will lose careers they have built over decades, drawn up short by a policy that would repay their commitment and service to our nation with detriment and derision,” Pillard wrote.

Pillard agreed that the executive branch is owed deference when making considered military judgments, but said the government had declined every opportunity before both Reyes and the appeals panel to provide any evidence that supported Hegseth’s policy.

“There may well be valid reasons to reexamine and alter military service policies set by previous administrations,” Pillard wrote. “But on this record, one cannot tell.”

“Defendants provide no evidence that they based their new policy on any assessment of costs, benefits or any other factor legitimately bearing on military necessity,” Pillard continued. “Indeed, there is ‘no evidence that [President Trump or Secretary Hegseth] consulted with uniformed military leaders’ before imposing their unprecedented ban on transgender service members. The outcome was determined by animus from the start.”

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