The Trump administration has petitioned the Supreme Court to reinstate its ban on transgender military service, following a skeptical reception in a federal appeals court.
The Department of Justice (DOJ) filed an emergency request to lift a nationwide injunction issued by U.S. District Judge Benjamin Settle in Shilling v. United States.
Judge Settle had blocked the ban, deeming it likely a violation of the Fifth Amendment’s equal protection clause, and “dramatic and facially unfair” due to a lack of evidence supporting claims of harm to military readiness.
The DOJ argued that the policy is similar to a 2018 policy previously allowed by the Supreme Court, and that military decisions should receive broad judicial deference. They claimed the policy only needs to be “rational,” the lowest standard of constitutional review.
The government asserted that allowing transgender individuals with gender dysphoria to serve would negatively impact military effectiveness and increase healthcare costs, stating the policy is necessary for “high mental and physical standards.”
However, lower court judges countered that the government misrepresented its own reports, noting that the military spends significantly more on erectile dysfunction medication than on gender-affirming care.
Lambda Legal CEO Kevin Jennings pledged to challenge the DOJ’s Supreme Court request.
Commander Emily Shilling, the lead plaintiff and a decorated Navy officer, and other plaintiffs, argue the ban is discriminatory.Jennings emphasized the irrationality of the ban, highlighting the distinguished service of transgender individuals like Commander Shilling. He also underscored the plaintiffs’ commitment to the case, despite facing harassment.
The DOJ’s filing came after a challenging hearing in Talbott v. United States, where a D.C. Circuit panel questioned the administration’s legal rationale.
DOJ attorney Jason Manion struggled to explain the policy’s implementation and enforcement.
Judge Cornelia Pillard highlighted the policy’s contradictions.
Shannon Minter, legal director at the National Center for Lesbian Rights, anticipated the government’s Supreme Court move and vowed to oppose it.
Iraq and Afghanistan Veterans of America founder Paul Rieckhoff criticized Defense Secretary Pete Hegseth‘s role in the ban, calling it detrimental to national defense.
He argued that the policy disrupts military units and diverts attention from critical issues.
The Supreme Court request follows the Ninth Circuit’s affirmation of a similar injunction in Shilling. Both cases challenge Executive Order 14183, which deems transgender identity incompatible with military service.
D.C. District Judge Ana Reyes described the ban as “soaked in animus and dripping with pretext” when she issued the Talbott in junction.
