Trump's DOJ struggles defending trans military ban during D.C. appeals court hearing

Yahoo

22-04-2025

The Trump administration faced a skeptical panel of federal judges in Washington, D.C., on Tuesday in a high-stakes hearing over its effort to reinstate a sweeping ban on transgender military service. In Talbott v. United States, the Justice Department defended the 2025 policy before the U.S. Court of Appeals for the D.C. Circuit, arguing that transgender people can serve so long as they do not transition or acknowledge their identity.
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The three-judge panel included Judge Cornelia Pillard, appointed by former President Barack Obama, and Judges Gregory Katsas and Neomi Rao, both appointed by President Donald Trump during his first term.
Pillard called out the ban's core contradiction: 'Someone who has never been diagnosed with gender dysphoria but who has transitioned is explicitly banned,' she said. 'It's clearly banning all transgender persons.'
DOJ attorney Jason Manion insisted the policy is about deployability and medical fitness, not identity. Pillard retorted, 'Your argument is that you can serve as a transgender person as long as you don't serve as a transgender person. Is that right?'
Related: Judge reinstates nationwide stop to Trump's trans military ban
Rao floated the premise that some transgender people might willingly serve in their birth sex. However, plaintiffs' attorney Shannon Minter of the National Center for Lesbian Rights dismantled that framing in court and in a conversation with The Advocate afterward. Boston-based GLAD Law is also representing the plaintiffs in this case.
'There's a history to this,' Minter said. 'Last time around, they tried to claim there are transgender people who are fine serving in their birth sex. But that's not what being transgender means. It's gaslighting. It's a pretense. It's a dodge.'
Manion, who previously served as special counsel to Republican Sen. Ted Cruz and is affiliated with the Federalist Society, frequently admitted he didn't know key facts—about how the policy would be implemented, whether it applied to veterans or reservists, or how many transgender service members it would impact. When asked how the military would identify people with symptoms of gender dysphoria, Manion responded, 'I don't know.' Asked if any other condition triggered automatic discharge without individual review, he said, 'Not that I'm aware of.'
Related: Meet the transgender Army lieutenant who is challenging Donald Trump's military ban
During the March 13 district court hearing before Judge Ana Reyes, Manion's responses prompted the judge—an out LGBTQ+ appointee of President Joe Biden—to call a 30-minute recess and order DOJ attorneys to read the very studies they had cited. Reyes accused the administration of 'cherry-picking' research and 'egregiously misquoting' scientific evidence and, at one point, demanded Manion obtain a written retraction from Defense Secretary Pete Hegseth, who had publicly claimed transgender troops lack integrity and a 'warrior ethos.'
Although the DOJ insisted that the ban concerns a medical condition, Hegseth contradicted that assertion again on Sunday on X, formerly Twitter.
'Your agenda is illegals, trans & DEI — all of which are no longer allowed @ DoD,' he wrote in response to a post by the Democratic Party saying he should be out of a job after his second Signal chat leak scandal broke.
Related: Federal appeals court upholds block on Trump's trans military ban
At the D.C. Circuit, the government appeared on similarly shaky ground.
Plaintiffs' attorneys argue that the policy—formally rooted in Executive Order 14183—violates the Fifth Amendment and is steeped in unconstitutional animus. U.S. District Judge Reyes agreed in March, issuing a nationwide preliminary injunction halting the ban and blasting it as 'soaked in animus and dripping with pretext.' However, the appeals court on Tuesday signaled that it might limit the injunction's scope to only the 32 named plaintiffs.
Such a move would abandon thousands of transgender troops in every branch of the military, once again subjecting them to forced separation, canceled enlistments, or concealment.
'This is not a theoretical harm,' Minter told the court. 'These are people already serving, already deployed. If the injunction is limited, they'll have to out themselves, say they're part of a lawsuit—or be expelled.'
After the hearing, Minter told The Advocate the DOJ's fallback argument—that animus doesn't matter if the government also has 'some good reasons'—was 'extraordinary' and dangerous. 'They're not disputing that the policy is based on animus,' he said. 'They're just saying it doesn't matter. That's not the law.'
The Trump administration has already suffered a similar defeat across the country. Last week, the 9th U.S. Circuit Court of Appeals upheld an injunction in Emily Shilling v. United States, a parallel case out of Washington state. There, U.S. District Judge Benjamin Settle found no credible evidence that inclusive service harmed the military, writing, 'Any evidence that such service over the past four years harmed any of the military's inarguably critical aims would be front and center. But there is none.'
In both Talbott and Shilling, courts have so far agreed: Transgender people meet military standards, and targeting them serves no legitimate purpose.
Related: Federal judge dismantles Trump's trans military ban in explosive hearing
In D.C., even Katsas—typically aligned with government deference—questioned the policy's internal logic. 'What sense does it make to make it harder to stay in than to get in?' he asked, pointing to the stricter retention standards compared to accession.
The court's decision will be pivotal, especially on whether to uphold Reyes' nationwide injunction. For plaintiffs like Army Reserve Second Lt. Nic Talbott, who has fought to serve for nearly a decade, it's personal.
'I can't even describe how much I enjoy my time in uniform,' Talbott told The Advocate in March. 'If the court does issue an injunction, it'll be a huge sigh of relief—but the fight will not be over.'