| The D.C. Circuit’s June 1 ruling in Talbott v. Trump partially upheld the preliminary injunction on the nationwide ban on transgender military. The order maintains the district court’s injunction for current servicemembers while dissolving it for those transgender individuals seeking to join the military. In this series of posts, we address various aspects of the three opinions from the D.C. Circuit. We first situate the decision within the broader litigation landscape, including the district court proceedings, the Supreme Court’s decision in Skrmetti, and the Court’s stay of the preliminary injunction in Shilling. We next offer an observation about what we consider the most important contribution of the opinions—the affirmation of the honesty, capacity, and dignity of transgender individuals. In subsequent posts, we will then examine the D.C. Circuit’s reasoning, focusing on the majority’s treatment of animus, the significance of the implementing policy’s broad reach, the nearly insurmountable obstacles to policy waivers, and the choice of discharge processes. We also consider the judges’ views regarding remedies, reliance interests, equal protection scrutiny, and the proper scope of deference to military decision-making. Finally, we consider what the decision may—and may not—mean going forward. While Talbott is in some respects a distinctive animus case that may have limited implications for many transgender-rights disputes, the opinions also provide a roadmap for how this administration could comfortably regulate transgender military service in ways that would easily survive judicial review. | | I. How Did We Get Here? | | Last year, we wrote about the Executive Order on Transgender Military Service with regard to the Equal Protection aspects of the Talbott v. Trump and Shilling v. United States litigation. Both Judge Reyes in Talbott and Judge Settle in Shilling granted nationwide preliminary injunctions, concluding the Executive Order was unlikely to survive judicial review on Equal Protection grounds. Both concluded plaintiffs were likely to succeed on the merits under the following three rationales: | - Transgender individuals are members of a quasi-suspect class: they face discrimination, contribute to society, are part of a discrete group with immutable characteristics, and constitute a minority lacking political power. The Executive Order would thus likely fail the relevant intermediate scrutiny standard of review.
- The exclusion of transgender individuals on the basis of gender dysphoria is discrimination on the basis of sex. The Executive Order would thus likely fail the relevant intermediate scrutiny standard of review.
- The government could not articulate a relationship between the Executive Order and legitimate state interests in military readiness, unit cohesion, and cost reduction. The Executive Order would thus also likely fail the much more forgiving rational basis standard of review.
| | Judge Reyes added an additional rationale—the Executive Order was also so infused with animus as to be inexplicable on other grounds, providing another reason the Executive Order would likely fail rational basis standard of review. Judge Settle left open the question of animus and did not rely on it for his preliminary injunction grant. | | The Supreme Court then issued two legal rulings potentially relevant to Talbott. First, in May 2025, the Supreme Court stayed the preliminary injunction granted in Shilling pending the resolution of the appeal in the Ninth Circuit and the Supreme Court. Decided on the shadow docket, the court provided no rationale for its determination. Second, the Supreme Court decided Skrmetti, an equal protection case challenging a Tennessee statute prohibiting gender-affirming care for transgender minors. As we discussed in more detail here, the Court concluded the statute’s permission for puberty blockers and hormones for some conditions but not for gender dysphoria, gender identity disorder, or gender incongruence made classifications on the basis of medical use rather than on the basis of sex or transgender status. Rational basis review governs such a classification, and the statute survived such review. Notably, the Skrmetti plaintiffs did not argue that the statute was motivated by an invidious discriminatory purpose, something the Talbott plaintiffs did allege. | | While Judge Reyes issued a nationwide preliminary injunction, the D.C. Circuit’s June 1 order only reinstates the injunction regarding some of the plaintiffs—those currently serving. Similarly, a decision on the merits would only directly govern the plaintiffs, but they have recently filed a motion for class certification. If successful, a merits decision could then apply to all impacted servicemembers. | | II. The Expressive Value of the D.C. Circuit | | For us, one of the most, perhaps the most significant aspects of Talbott is its repeated and unmistakable affirmation of the dignity, integrity, and worth of transgender individuals and the honorable nature of their military service. Even as we explain in later posts the narrowness of the holding, its limited application to other transgender cases, and its clear flagging of how the administration can lawfully limit transgender service, all three opinions, including the dissent, decline to embrace the deep and targeted disrespect of the Trump executive order and Hegseth’s accompanying memorandum and all acknowledge the current servicemembers who meet the military’s rigorous standards and not only meet them, but exceed them. While such rhetorical proclamations are not nearly as satisfying as a Supreme Court victory, they do remind us of the communicative value of judicial opinion writing and provide a powerful counternarrative to much of the anti-transgender language pervading modern discourse. | | The two opinions affirming the injunction aggressively reject the animus-laden characterizations of transgender individuals. Judge Wilkins’ opinion opens with President Trump’s executive order language about how “expressing a false 'gender identity’ . . . cannot satisfy the rigorous standards necessary for military service” and Secretary of Defense Hegseth’s language that people with gender dysphoria are unfit because their character is “inconsistent [with the] high standards . . .[of] honesty, humility, . . . and integrity.” Judge Wilkins immediately notes “the government has not attempted to defend or provide any factual basis for these disparaging characterizations of American citizens.” And then both majority opinions repeatedly affirm the specific service member plaintiffs as people who have served their country honorably and capably and whose records of military service directly undermine the government’s characterization of them as unfit or inherently problematic. Equally important, the opinions reject the administration’s explicit characterization that transgender people are inherently deceptive or dishonest. Rather than accepting such assertions at face value, the court emphasizes the total absence of evidence supporting these claims in the record. In so doing, the majority’s language extends beyond the immediate dispute over military policy and stands as a forceful judicial repudiation of narratives that portray transgender people as inherently suspect, reaffirming instead their dignity, humanity, and capacity for honorable public service. | | Notably, the dissent does not directly engage Hegseth’s language that people with gender dysphoria are unfit because their character is “inconsistent [with the] high standards . . . [of] honesty, humility, . . . and integrity.” It does suggest reasons not in the record that individuals with past gender dysphoria or who have or are in the process of transitioning might be incapable of meeting the rigorous standards of service. Even so, Judge Walker frames his opinion as fundamentally about who gets to decide and not about the high quality of the decision-making in this instance. In fairness, we do find his citation to one of the implementation memo’s language stating that “individuals with gender dysphoria have volunteered to serve our country and will be treated with dignity and respect” to be disingenuous. Given how this administration has actually behaved in the discharge process, as we will discuss in the next post, we find this to be manifestly untrue. But it is still important from our perspective that Judge Walker does not at any point state or even suggest that transgender individuals are lacking in honesty, humility, . . . and integrity. | | Rather, Judge Walker emphasizes that the military often discriminates. And that the judiciary must and frequently does defer to such discrimination. At both the open and close of his decision, he quotes the following language from Orloff: “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. But judges are not given the task of running the Army.” He repeatedly compares the transgender ban to the refusal to allow Jewish servicemembers to wear yarmulkes upheld in Goldman v. Weinberger and emphasizes that Congressional rather than judicial intervention is the way to change “objectionable military rules.” Now, he does not go as far as to say that the transgender policy is objectionable or even recognize it as such, and he may or may not believe that it is objectionable. Nor does he address an important distinction in that the yarmulke case was not accompanied by language suggesting that Jewish people were inherently dishonest, nor by a process that treated Jewish people differently than similarly situated members of other religions. One might fairly object that in doing so, he elides important evidence of animus not present in other cases where the court deferred to military discrimination. One might also fairly object that he offers rationales for policies not present in the order, the memo, or made by the government’s attorney to defend policies, but we view it as not insignificant that no judge, even a Trump appointee criticized by fellow conservatives for unnecessary religious and historical passages in his opinions, embraced the most hateful language used in crafting this policy. Disregarding it might make his reasoning less compelling or give rise to the concern that he is papering over underlying animus, but given the alternative of openly embracing such language, we view even his dissent as a communicative win compared to the worst-case scenario. | | Stay tuned. In our next post, we will address the reasoning of the various judges and what the decision may—and may not—mean going forward. |
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