Appeals court scouts middle ground on Trump transgender military ban

A federal appeals court panel looked for middle ground Tuesday on President Trump’s executive order effectively barring transgender people from serving openly in the military, expressing skepticism of the ban but unease over a nationwide block on its implementation.

Trump’s order, penned in January, declared that transgender service members can't meet the "rigorous standards” necessary to serve, an extension of the culture war rhetoric the president made a hallmark of his campaign.  

The Defense Department’s subsequent policy ordered the military to remove service members with gender dysphoria and to pause integration of new transgender recruits.  

The policy came under scrutiny by a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit as it weighs whether to halt a district judge’s order barring Defense Secretary Pete Hegseth and other military officials from implementing or otherwise effectuating the policy while the Trump administration appeals.  

Judge Cornelia Pillard, an appointee of former President Obama, dominated the arguments with pointed questions about the scope of the president’s order and ensuing policy. She took specific aim at the administration's contention that the policy is not an all-out ban. 

“Your argument that this is not a ban on transgender service is that you can serve as a transgender person as long as you don't serve as a transgender person, is that right?” Pillard asked. 

“I certainly wouldn't put it that way,” Department of Justice (DOJ) lawyer Jason Manion replied. 

A Department of Defense memo dated Feb. 26 said individuals with a “current diagnosis or history of, or exhibit symptoms consistent with, gender dysphoria” are not fit for military service. It added that the Pentagon recognizes only two sexes, male and female, in compliance with another Trump executive order, and requires service members to “only serve in accordance with their sex.”  

Several active service members and individuals seeking to enlist in the military sued the Trump administration after the order was signed, asserting it violates their constitutional rights. 

Manion argued Tuesday it was “clearly erroneous” for the lower court to treat the policy as "broader" than it is in practice, claiming it focuses on a medical condition and related medical treatments as opposed to a person’s expressed gender identity.  

But Pillard pushed back that transgender people who live in a sex other than their birth sex are explicitly banned by the policy, even if that person has never been diagnosed with gender dysphoria — distress that stems from a mismatch between a person’s gender identity and sex at birth. 

"It's clearly banning all transgender persons,” the judge said.  

U.S. District Judge Ana Reyes, the lower court judge, noted in a hearing before she ruled that symptoms of gender dysphoria could “mean anything,” from “cross-dressing” to mental health conditions like depression. In her order blocking the ban, she called the policy “soaked in animus.” 

Manion argued that, even if the appeals judges must defer to Reyes's view that animus motivated the Trump administration's decision, it wouldn’t resolve the legal question of whether the courts can “shortcut” the deference usually given to the military in its decisionmaking.

“Are you conceding that there was animus?” Judge Neomi Rao, a Trump appointee, interjected. 

The DOJ lawyer said he wasn’t, calling Reyes’s finding “clear error.”  

Pillard also challenged the extent of deference owed to the military, questioning whether it would be “rational” to defer if the military had instead said people with red hair must be kicked out of the military instead of transgender service members. 

The panel’s two conservatives, Rao and Judge Gregory Katsas, seemed willing to narrow the injunction without letting the ban move forward in full force. 

Rao wondered whether the military should be required to decide on a case-by-case basis whether transgender service members can serve, instead of the sweeping catch-all in place now. 

Katsas, another Trump appointee, asked what happens when a service member already serving discovers a condition that would have disqualified them from joining the military, probing whether a different process is used than the one being put to transgender troops. 

However, Rao also pressed a lawyer for the ban's challengers over whether Reyes’s universal injunction, which blocked the Trump administration from effectuating the ban nationwide, goes too far.  

“Isn’t the government likely to succeed on challenging this remedy, the universal injunction at issue here?” she asked. 

Katsas also seemed inclined to wait and see how the issue plays out in other courts. The U.S. Court of Appeals for the 9th Circuit on Friday declined to halt a similar court order while the government appeals in another lawsuit challenging the ban, likely setting up a battle at the Supreme Court.  

“Can you tell us anything about the government's plans and pace for seeking Supreme Court review?” Katsas asked.  

Manion said the government plans to seek intervention from the high court “imminently.” 

“That may well be quite relevant to the court's analysis as well,” Katsas said.