On Jan. 20, his first day back in office, Donald Trump made clear that he was targeting transgender people for adverse treatment, even though he could not bring himself to use the word “transgender” in his first executive order on the subject, because he denies the possibility that gender identity could be real or that transgender people actually exist. As part of that first-day order, which was reinforced a few days later and then actualized in a memorandum released by Secretary of Defense Pete Hegseth, the Trump administration announced, using the euphemism of “gender ideology,” that the ban on military service by transgender people, flippantly adopted by Trump during his first administration in 2017, and ended by Joe Biden upon taking office in 2021, was being revived. And the inevitable lawsuits followed.
By the end of March, at least three federal judges had already issued orders that the current version of the ban not be enforced.
On March 18, US District Judge Ana C. Reyes of the US District Court for the District of Columbia granted a motion by attorneys representing a transgender plaintiff group for a preliminary injunction in the case of Talbott v. United States, stating that Secretary Hegseth and the heads of the various military branches “are preliminarily enjoined, pending further order of this Court, from implementing Executive Order No. 14183, as well as ‘Additional Guidance on Prioritizing Military Excellence and Readiness,’ and any other memorandums, guidance, policies, or actions issued pursuant to Executive Order 14183 or the Additional Guidance on Prioritizing Military Excellence and Readiness.”
The judge explained that the effect of this order was to “maintain the status quo of military policy regarding transgender service that existed immediately before President Donald J. Trump issued Executive Order 14183” and the following policies announced in Defense Department documents. However, she stayed the effect of the court’s order until March 21, 2025, at which time it would go into effect unless stayed by an appellate court. She also specifically ordered that the defendants “shall maintain and continue Plaintiffs’ military status” pending further orders of the court.
The second order was issued on March 24 by US District Judge Christine P. O’Hearn of the US District Court for New Jersey in Ireland v. Hegseth, a lawsuit brought by two transgender men serving in the Air Force, who upon issuance of Trump’s and Hegseth’s orders were “subjected to immediate adverse actions, including forced administrative absence and removal from their training assignments and active deployment” and had been notified that involuntary separation proceedings were expected to begin as soon as March 26. Judge O’Hearn issued a temporary restraining order to remain in effect for 14 days unless extended by the court, enjoining the Defense Department and the Air Force from “enforcing or implementing any aspect” of the Trump and Hegseth orders as to the plaintiffs.
The action returned to Judge Reyes’s court, after Hegseth issued his memorandum, and the government raised new arguments, contending that Hegseth’s “guidance” clarified that there was no ban, as such, on all transgender people, only people who had been diagnosed with gender dysphoria, and anyone so diagnosed who could prove that they had never attempted to transition and would serve in the gender identified on their original birth certificate, were welcome to serve. As Joe Biden would have said, “Malarkey!” Judge Reyes rejected this argument, and in a March 26 opinion, she denied the defendants’ motion for a stay of her preliminary injunction while the defendants appeal to the US Court of Appeals for the DC Circuit.
Judge Reyes observed that the defendants “have yet to explain the burden on them of continuing the status quo. Much less do they explain how that purported burden is greater than the ongoing injury plaintiffs experience and the additional harm that will result if the court stays the injunction. Nor do the defendants explain how the public benefits from a stay of the injunction order, which will require DoD to enact a policy that likely violates plaintiff’s Fifth Amendment rights.”
However, Judge Reyes stayed her renewed preliminary injunction order until March 28 to give the defendants “the opportunity to file an emergency stay at the DC Circuit.” The Justice Department announced that it would appeal immediately.
But there’s more. On March 27, US District Judge Benjamin H. Settle of the Western District of Washington (State), ruling on a motion filed by plaintiffs in Shilling v. United States, issued a nationwide preliminary injunction, ordering the defendants not to implement the executive order or anything emanating from Hegseth on this subject. “The effect of the court’s order,” explained Judge Settle, “is to maintain the status quo of military policy regarding both active-duty and prospective transgender service members that existed nationwide immediately before President Trump issued the military ban. This order applies to all plaintiffs and any similarly situated individuals nationwide, including those serving out of country.”
A three-judge panel of the DC Circuit granted the government’s motion for a brief administrative stay of Judge Reyes’ order while the court decided whether to grant a motion for a lengthier stay while the government appeals the preliminary injunction.
In all these cases, the judges found that plaintiffs were likely to prevail on their claim that the executive order and subsequent Defense Department implementing policies violated the Equal Protection of the Law as described by the Supreme Court in cases under the Fifth Amendment Due Process Clause. In reaching that conclusion, the judges noted the exemplary service records of the plaintiffs who are active-duty military members.
What clearly sinks Trump’s policy announcements are the blatant untruths of his offensively worded executive order, as echoed in Hegseth’s subsequent effusions. The judges rejected government lawyers’ attempt to recast this as a case about gender dysphoria rather than a case about the equality rights of transgender people, and to contend that those suffering from gender dysphoria are in some sense unfit to serve in the military.
Unlike the president and Hegseth, who disclaim the existence of transgender people and even avoid using that term in their documents, the judges looked to existing case law in the lower federal courts, and to the Supreme Court’s 2020 decision in Bostock v. Clayton County, which clearly acknowledges the existence of transgender people and which in the case of several courts of appeals decisions have now ruled that discriminating against people because of their transgender status violates Equal Protection as a form of discrimination because of sex unless the government can prove in defense that the military ban as announced by Trump and Hegseth substantially advances an important government interest.
The government’s argument loses all credibility based on the evidence of the past four years. After President Biden lifted the original Trump military ban, openly transgender people “came out” in service or applied to enlist in significant numbers, and both they and their commanders testified to their exemplary service. Responding to the argument that allowing transgender people to serve will undermine unit cohesion and morale, these witnesses, some of them high ranking Defense Department officials in the Biden Administration who have been peremptorily replaced by Trump, testified under oath that allowing transgender people to serve openly had not harmed unit cohesion or morale, and in fact had the opposite effect. The testimony of those who served gave the lie to the blatant untruths of the Trump and Hegseth orders.
Furthermore, the case put on by the government lawyers can best be described as “pathetic.” “If the Military Ban goes into effect,” wrote Judge Reyes, “it will upend lives and ruin the careers of thousands of persons. Given this potential impact, the evidence not in the record is striking.” She included a hard-hitting section in her opinion headed “The Military Ban Is Fueled by Animus,” which describes the Military Ban as “unique in its unadulterated express of animus — an expression of animus that no law the Supreme Court has struck down comes close to matching.
Judge Settle confronted the same defense arguments. The government “does not strenuously dispute that the military ban was motivated by animus towards transgender people,” he wrote, “but does contend that even so, there are legitimate reasons for it.” However, within the Ninth Circuit, which includes Washington state, there are strong precedents supporting heightened scrutiny for government polices discriminating against transgender people, some of which were established during litigation against Trump’s first-term transgender ban.
However, Judge Settle went the next step to opine that the military ban would not survive even the least demanding standard of judicial review: rationality. “The government concedes there is no evidence that being transgender is inconsistent with ‘honesty,’ ‘humility,’ or ‘integrity,’ and that being transgender ‘conficts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle,’” rejecting statements from Trump’s executive order that were repeated by Hegseth’s policy statements.
The defendants argued that their position was based on a policy statement issued by former Defense Secretary James Mattis, which had predicted all sorts of problems if transgender people were allowed to serve openly. “The reliance on the seven-year-old predictions from the Mattis Policy while ignoring the reality of years of open service is not reasonable,” wrote Settle, “and is not comparable to congressional debates and extensive recordings supporting the military decision” in cases where courts deferred to military judgment. “The near complete absence of updated data here speaks for itself. The government had every opportunity to provide their own declarants to support their points or counter plaintiffs’ evidence that open service did not hurt its stated interests. But it did not … It is very well reasonable for transgender service members to expect that they be allowed to serve openly when they have done so successfully for years, and the government lacks any evidence to justify banning them now… The Military Ban and Hegseth Policy on the present record fails any level of Equal Protection scrutiny.”
Settle concluded that the lack of evidence supporting the ban was so decisive that it was unnecessary for him to make a formal finding that the ban was grounded in animus, at least for purposes of deciding whether to issue a preliminary injunction.
Judge Reyes premised her ruling entirely on Equal Protection, but Judge Settle went further, finding plaintiffs were also likely to succeed in showing a First Amendment free speech violation, and a violation of procedural due process by the ban’s sweeping across-the-board policy of discharging people regardless of their service record, thus stigmatizing them as “unfit.” He found that the language of the executive order and Hegseth policies “very publicly ‘branded’ transgender service members with demeaning, cruel, and unsupported ‘badges of infamy.’ These instances are in the public record. The government cites no authority supporting its claim that the reputational harm is erased for Due Process purposes if the discharge caused by the public stigmatization is nevertheless ‘honorable.’”
Judge Settle also note another precedent from the 1980s, when the Ninth Circuit found that a long-serving service member, Perry Watkins, who was denied re-enlistment because he was openly gay, could rely on a doctrine called “equitable estoppel” to win a judgment against the Defense Department. The Department was barred from arguing he was unqualified to serve. Because of his long satisfactory service record, it would be a “serious injustice” to end his military career. Similarly, the currently serving transgender members relied on the policies announced by the Biden Administration to continue serving or to enlist. “The government’s argument is essentially that no one can rely on any of its rules, because, obviously, things change. There is no cite, no authority, and no logical support for this proposition,” insisted the judge. “There is simple and ancient authority for the opposite conclusion: ‘the presumption against retroactive legislation is deeply rooted in our jurisprudence and embodies a legal doctrine centuries older than our Republic,’” quoting a US Supreme Court decision from 1994, Landgraff v. USI Products.
Now it will be up to the circuit courts of appeals to deal with two lengthy opinions, by Judges Reyes and Settle, setting out in clear detail the reasons why no deference should be given to “military judgment” in this case, because the new Trump and Hegseth bans are not the product of expert military judgments, but rather are politically inspired.
Settle rejected the government’s argument that the preliminary injunction should be limited to the seven active-duty transgender military members who brought the Shilling case. “This is the rare case that warrants a nationwide injunction,” he wrote. “The record is clear that the military ban would impact all branches of the military nationwide. The court also notes that 21 states have filed an amicus brief indicating that they and their residents will be harmed by the military ban if this court fails to enjoin it.” Anyone care to guess at which states they are? He concluded that a nationwide injunction would merely preserve the status quo while the case goes to trial, and that if his injunction was narrow, there would “surely be more lawsuits, leading to the extraordinary and unnecessary expenditure of effort and resources, and the duplication of discovery and motion practice in district courts across the country.”
On March 31, a three-judge panel of the Ninth Circuit rejected a motion by the government for an immediate “administrative stay” of Judge Settle’s preliminary injunction while the court considers the government’s request for an unlimited stay of the injunction while the government’s appeal is pending. The court commented that the preliminary injunction preserves the status quo, which a stay of the injunction would not.
Those who have been following the drama of Trump’s executive orders against major law firms may not be surprised to see that Perkins Coie’s Seattle Office is listed as lead counsel for plaintiffs in the Shilling case, working with attorneys from Human Rights Campaign, Lambda Legal, and other offices of Perkins Coie, a large nationwide firm. In the Talbott case pending in DC, lead counsel is Inga S. Bernstein of Zalkind Duncan & Bernstein LLP of Boston, collaborating with GLBTQ Legal Advocates and Defenders (also known as Glad Law), the National Center for Lesbian Rights (NCLR), and various others. GLAD Law and NCLR, with Stapleton Segal Cochran LLC and Langer Grogan & Diver P.C., represent the two sergeant plaintiffs in the New Jersey case, Ireland v. Hegseth.
Judge Reyes, an out lesbian, was appointed by President Joe Biden. Judge O’Hearn was also appointed by Biden. Senior District Judge Settle was appointed by President George W. Bush.
