Two federal appeals court judges appointed by Donald Trump are keeping in place a policy directed by the president to remove transgender service members from all branches of the U.S. military, an order that a dissenting judge called “gratuitously demeaning” and “openly hostile” to all trans Americans.
Tuesday’s ruling from the three-judge panel in Washington, D.C. dissolves a court order that blocked the policy while a legal challenge is ongoing.
The case is likely to be decided by the Supreme Court, which has already allowed the ban to take effect while several court battles play out.
Judges Gregory Katsas and Neomi Rao, both Trump appointees, argued that the district judge “afforded insufficient deference” to Defense Secretary Pete Hegseth and his “considered judgment.”
The Trump administration’s policy to ban trans troops from serving “reflects a considered judgment of military leaders and furthers legitimate military interests,” the judges wrote Tuesday.
After taking office in January, the president issued an order declaring that the “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.”
Defense Secretary Pete Hegseth and Pentagon leadership subsequently ordered military officials to identify all trans troops and to strip them of access to gender-affirming care.
Pentagon guidance claims that “the medical, surgical, and mental health constraints on individuals who have a current diagnosis or history of, or exhibit symptoms consistent with, gender dysphoria are incompatible with the high mental and physical standards necessary for military service.”
The memo provides for a “case-by-case basis waiver” that effectively tells trans service members they can continue to serve if they can prove they have never transitioned and have never lived as their sex at birth for a period of time.
A lawsuit from a group of 20 active-duty trans service members argues that the orders are plainly discriminatory and fueled by animus towards trans people in violation of their 14th Amendment right to equal protection under the law.
The two Trump-appointed appellate court judges argued that because Hegseth’s policy “advances legitimate military interests, the animus cases do not help the plaintiffs here” — even when statements from the defense secretary and other administration officials repeatedly denigrated trans people and made it clear that the policy is intended to explicitly deny them from serving.
The Trump-appointed judges said a decision about the policy should only rely on “text and sources informing” it, not the “extrinsic statements made about it.”
Appellate Judge Cornellia Pillard, who was appointed by Barack Obama, ripped into her colleagues’ decision and the Trump administration’s directives, which are “based on nothing more than negative attitudes about transgender identity.”
Trump’s initial executive order to begin with is “openly hostile to transgender people,” and Hegseth adopted the Defense Department’s policy after the president “tagged all transgender service members as shameful, dishonest laggards too arrogant or selfish to serve,” Pillard wrote.
She went on to list several statements and social media posts from Hegseth himself, including his explicit admission that “transgender service members are disqualified from service without an exemption” and “no more dudes in dresses, we’re done with that s***.”
“Previous defense secretaries devoted months of study, with the help of experts, to understanding the facts and circumstances relevant to transgender service,” Pillard noted.
Hegseth, meanwhile, came up with his policy “in just one month,” rejecting the military’s own “substantial and growing experience” with trans service members that contradict his spurious claims, according to the judge.
Trans service members are “already suffering substantial and irreparable harm” under Hegseth’s policy and his “grave disruption” of the status quo, Pillard wrote.
“The majority’s decision makes it all but inevitable that thousands of qualified servicemembers 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,” she added. “We should not accord deference to the military when the [Pentagon] itself carelessly relied on no more than blatant animus.”
Attorneys will return to federal court January 22 to argue against the administration’s ban.
District Judge Ana Reyes “correctly found that this ban causes irreparable harm and is rooted not in facts, data, or reason — but in animus,” Shannon Minter, legal director with the National Center for LGBTQ Rights, which is representing the plaintiffs, told The Independent.
“Notably, all three judges on today’s panel acknowledged that the ban is driven by animus,” he said. “The court still has the opportunity to protect our troops and their families by upholding Judge Reyes’s decision.”
