Trump administration pushes appeals court to enforce military's transgender ban
Jason Manion, arguing for the administration, asked a three-judge panel of the D.C. Circuit U.S. Court of Appeals to pause an order by U.S. District Judge Ana Reyes last month blocking the ban while it considers the appeal more fully, arguing that courts must defer to the military's judgment.
He also told the court that the government would soon ask the U.S. Supreme Court to lift an order by a different appeals court blocking the ban in a separate case.
Manion argued that both the D.C. Circuit and the Supreme Court had allowed a similar ban to take effect during Trump's first term, though that ban applied only to new service members and allowed currently serving transgender members to remain.
Both policies, Manion said, did not target people based on their transgender identity, but rather on the basis of having a diagnosis or symptoms of gender dysphoria — clinically significant distress at having one's sense of gender identity not match one's birth sex.
The policy was "focused on a medical condition and related to medical treatments," he said, adding that people who identify as transgender can still serve as long as they do not have gender dysphoria or openly live as a sex different from their birth sex.
Circuit Judge Cornelia Pillard, who was appointed by Trump's Democratic predecessor Barack Obama, peppered Manion with skeptical questions throughout the argument.
"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?" she said.
Pillard also noted that the policy followed an executive order by Trump, a Republican, calling for a ban on the grounds that transgender identity was "not consistent with the humility and selflessness required of a service member."
"We have a sitting president issuing an executive order that has animus (against transgender people) on its face," she said.
Manion said that the policy could still be upheld if it could be explained by reasons other than animus, despite Trump's order.
Shannon Minter, arguing for the current and would-be service members challenging the ban, urged the court to keep Reyes' block in place.
The government has "identified literally no specific concrete harm" it would suffer if the ban remains blocked, Minter said, while the plaintiffs will be "labeled unfit for service for a reason that has no relation to their ability to do their job" if the ban is enforced.
The other two members of the panel, Circuit Judges Gregory Katsas and Neomi Rao, were both appointed to the court by Trump during his first term in office. Both asked relatively few questions and did not clearly signal how they would rule.
The case is Talbott v. United States, U.S. Court of Appeals for the D.C. Circuit, No. 25-5087.
For the government: Jason Manion of the U.S. Department of Justice
For the plaintiffs: Shannon Minter of the National Center for Lesbian Rights
Trump takes aim at DEI, COVID expulsions and transgender troops
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