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WASHINGTON (CN) — A D.C. Circuit panel ruled Monday that the Pentagon’s ban on transgender soldiers in the military was unconstitutional and barred the government from expelling any active-duty service members.
In a 2-1 ruling, the three-judge panel ruled against Secretary of Defense Pete Hegseth, finding the ban was arbitrary and driven by animus toward transgender people, violating service members’ equal protection rights under the 14th Amendment.
Monday’s ruling bars the government from discharging troops in active service but leaves the policy in place for prospective service members. The panel cited concerns about requiring the military to admit applicants based on a preliminary injunction that could later be overturned and sent the case back to U.S. District Judge Ana Reyes for further proceedings.
Hegseth’s Feb. 26 policy, issued under President Donald Trump’s “Prioritizing Military Excellence and Readiness” executive order, effectively bars most transgender people from military service unless they receive an exception. The order and policy argue that individuals diagnosed with or who have a history of gender dysphoria cannot meet the standards required for military service.
U.S. Circuit Judge Robert Wilkins, a Barack Obama appointee, noted in the majority’s opinion that the Trump administration declined to defend or provide any factual basis for “these disparaging characterizations of American citizens,” instead contending the case centered on whether the military could disqualify soldiers for having gender dysphoria.
“But the record shows that the purpose of the Hegseth policy is to target applicants and serve members 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,” Wilkins wrote. “Some of those disqualifications are completely unexplained and have no reasonable justification.”
He noted the policy differs sharply from the “Mattis policy,” adopted during Trump’s first term and named for then-Secretary Jim Mattis, which allowed transgender service members and people with gender dysphoria to remain in the military.
The contrast, Wilkins wrote, appears to be driven “by the bare desire to harm a politically unpopular group: persons who identify as transgender,” and thus such animus is unconstitutional.
Jennifer Levi of GLBTQ Advocates & Defenders, lead counsel in the case, told Courthouse News the ruling was a “solid rejection of this administration’s continued targeting of trans people.”
“This is a huge victory for the courageous service members who want nothing more than a chance to serve their country,” Levi said.
Reyes, a Joe Biden appointee, blocked the policy on March 18, finding it was “rushed and reached a preordained result,” lacked analytical support and was undermined by public statements from Hegseth and Trump describing it as a total ban.
The plaintiffs include 14 active duty service members who collectively have more than 130 years of military service across multiple branches, deployments ranging from Afghanistan to Kuwait and more than 80 commendations, including a Bronze Star and two Global War on Terrorism Service Medals.
Levi added that the panel’s decision regarding prospective applicants was narrowly tailored and predicted the remaining portion of the ban would ultimately be struck down as well.
“The unfortunate thing is the country is ultimately harmed,” Levi said. “The hostility of this administration is actively undermining the strength and stability of the country.”
U.S. Circuit Judge Judith Rogers, a Bill Clinton appointee, agreed with Wilkins but would have further ruled the Pentagon’s ban on new applicants was also unconstitutional.
On Dec. 9, a separate D.C. Circuit panel dominated by Trump appointees paused Reyes’ preliminary injunction, finding she afforded “insufficient deference” to the Pentagon’s judgment.
Writing for the majority, U.S. Circuit Judges Gregory Katsas and Neomi Rao, both Trump appointees, concluded Hegseth’s policy likely did not violate the Equal Protection Clause and did not warrant heightened scrutiny, citing the Supreme Court’s decision last summer in United States v. Skrmetti.
U.S. Circuit Judge Justin Walker, a Trump appointee, dissented from the majority, arguing the court was improperly intervening in military matters that belong to the executive and legislative branches.
“‘We know that from top to bottom of the Army, the complaint is often made, and sometimes with justification, that there is discrimination, favoritism or other objectionable handling of men,’” Walker wrote, quoting the 1953 Supreme Court decision Orloff v. Willoughby.‘“But judges are not given the task of running the Army.’ Only the Executive and Congress are responsible for system-wide military judgments about the composition of the armed forces.”
“The Supreme Court has never assumed that role,” Walker added. “Neither has the D.C. Circuit. Not until today.”
The Pentagon did not respond to a request for comment.
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