Court Allows Military Transgender Ban to Continue Pending Appeal

Court Allows Military Transgender Ban to Continue Pending Appeal

A U.S. Court of Appeals for the District of Columbia three-judge panel voted 2-1 to dissolve the stay pending appeal on a case challenging President Donald Trump’s banning of “radical gender ideology” from the military.

The case is Nicolas Talbott, et al. v. United States.

After Trump’s order, Defense Secretary Pete Hegseth “issued various memoranda disqualifying from military service individuals with a diagnosis of, history of, or symptoms ‘consistent with’ gender dysphoria.”

The plaintiffs claim that the policy “violates equal-protection principles incorporated into the Fifth Amendment.”

(The judges refer to those memoranda as “Hegseth Policy.”)

In March, Judge Ana Reyes of the U.S. District Court for the District of Columbia issued an injunction to block Trump’s executive order.

Elizabeth covered Reyes’s interesting order. Why is it interesting? She cited the Hamilton musical!

The Trump administration appealed the preliminary injunction and requested a stay.

As that was pending, the Supreme Court stayed a preliminary injunction against the order in a case from the state of Washington.

The D.C. Circuit Court of Appeals addressed Trump’s appeal of the preliminary injunction today.

D.C. Circuit Court Judges Gregory Katsas and Neomi Rao wrote:

The Hegseth Policy likely does not violate equal protection. We doubt that the policy triggers any form of heightened scrutiny. In Skrmetti, the Supreme Court held that a law prohibiting the use of hormones to treat gender dysphoria in minors “classifies on the basis of medical use” and thus does not discriminate based on either sex or transgender status. See 605 U.S. at 510–19. The same reasoning would seem to cover the Hegseth Policy, which classifies based on the medical condition of gender dysphoria. Skrmetti also casts significant doubt on the proposition that a classification based on transgender status would trigger heightened scrutiny. See id. at 517 (“This Court has not previously held that transgender individuals are a suspect or quasi-suspect class.”); id. at 557 (Barrett, J., concurring) (“The Equal Protection Clause does not demand heightened judicial scrutiny of laws that classify based on transgender status.”); id. at 558 (Alito, J., concurring in part and concurring in the judgment) (classification based on transgender status “does not warrant heightened scrutiny”).

“Even if the Hegseth Policy contained a classification triggering some form of heightened scrutiny, decades of precedent establish that the judiciary must tread carefully when asked to second-guess considered military judgments of the political branches,” added Katsas and Rao. “And we must do so even in cases involving sex-based or other quasi-suspect classifications.”

And scene: “Moreover, the Supreme Court already has held that the government is likely to succeed on its contention that the Hegseth Policy does not violate equal protection.”

I’m glad that Katsas and Rao pointed out that tons of medical conditions disqualify a person from serving in the military.

These include many mental health issues such as bipolar disorders, depression, and anxiety.

The standards exist for a reason:

These requirements advance many military objectives. Among other things, they ensure that service members can complete required training, serve in harsh or remote environments, and perform their duties as safely as possible. DoD Accession Standards at 5. The standards also reduce therisk that service members will “require excessive time lost from duty” for medical reasons.

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