25-5087

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 2026 Decided June 1, 2026
No. 25-5087
NICHOLAS TALBOTT, ET AL.,
P LAINTIFF -APPELLEES
v.
UNITED S TATES OF A MERICA,
DEFENDANTS-APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:25-cv-00240)
Abhishek Kambli, Attorney, U.S. Department of Justice
argued the cause for Appellants. With him on the briefs were
Brett A. Shumate, Yaakov M. Roth, Michael S. Raab, Ashley C.
Honold, and Amanda L. Mundell.
Shannon Minter, argued the cause for Appellees. With
him on the brief were Christopher F. Stroll, Jennifer Levi,
Michael Haley, Joseph J. Wardenski, and Sara E. Kropf.
William J. Olson, Jeremiah L. Morgan, Michael Boos,
Joseph W. Miller, J. Mark Brewer, Patrick M. McSweeney, and
Rick Boyer were on the brief for amicus curiae Lt. Gen.
Michael T. Flynn (USA-Ret.), America’s Future, Citizens
United, Public Advocate of the United States, Public Advocate

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Foundation, U.S. Constitutional Rights Legal Defense Fund,
and Conservative Legal Defense and Education Fund in
support of Defendants-Appellants.
Robert S. Chang, Shaleen Shanbhag, Rachel Croskery-
Roberts, and Beatrice A. Tice were on the brief for amicus
curiae Japanese American Citizens League, The Fred T.
Korematsu Center for Law and Equality, and Additional Race
Centers in support of Plaintiff-Appellees.
Charity R. Clark, Attorney General of Vermont, Office of
the Attorney General for Vermont, Jonathan T. Rose, Solicitor
General of Vermont, Ryan P. Kane, Deputy Solicitor General
of Vermont, Justin G. Sherman and Samuel Stratton, Assistant
Attorneys General of Vermont; and Nicholas W. Brown,
Attorney General of Washington, Office of the Attorney
General of Washington, Colleen Melody, Civil Rights Division
Chief, Cassandra Baker, Assistant Attorney General of
Washington were on the brief for amicus curiae States Of
Vermont, Washington, Arizona, California, Colorado,
Connecticut, Delaware, Hawai‘i, Illinois, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Nevada, New Jersey,
New York, North Carolina, Oregon, and Rhode Island in
support of Plaintiff-Appellees.
Before: W ILKINS and WALKER , Circuit Judges, and
R OGERS , Senior Circuit Judge.
Opinion announcing the judgment of the Court filed by
Circuit Judge WILKINS .
Opinion concurring in part and dissenting in part filed by
Senior Circuit Judge R OGERS .
Dissenting opinion filed by Circuit Judge WALKER .

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WILKINS , Circuit Judge:
In the beginning days of his second term in office,
President Trump issued an Executive Order proclaiming that
persons “expressing a false ‘gender identity’ divergent from an
individual’s sex cannot satisfy the rigorous standards necessary
for military service.” Exec. Order No. 14183, 90 Fed. Reg.
8757 § 1 (Jan. 27, 2025). The President, and later Secretary of
Defense Pete Hegseth (now redesignated as Secretary of War),
also declared that persons afflicted with gender dysphoria are
unfit for military service because, among other things, the
character of such persons (in the President’s and Secretary’s
words) is “inconsistent” with the “high standards . . . [of]
honesty, humility, . . . and integrity.” DEP ’T OF DEF .,
ADDITIONAL GUIDANCE ON P RIORITIZING M IL. E XCELLENCE
AND R EADINESS (2025) (hereinafter “Hegseth Policy”); see
also J.A. 50.
In this litigation, the government has not attempted to
defend or provide any factual basis for these disparaging
characterizations of American citizens. Indeed, the
government has not contested that the Plaintiff-Appellees who
are currently serving (and who have collectively earned more
than 80 commendations) have served honorably and pose no
threat to national security, even though they happen to be
transgender and have suffered from gender dysphoria.
Instead, the government contends that this case is solely
about whether, pursuant to the Hegseth Policy, the military can
disqualify persons from military service because they have
gender dysphoria, a mental health condition. But the record
shows that the purpose of the Hegseth Policy is to target
applicants and servicemembers who express what the
Administration believes is a “false gender identity,” and the

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Policy goes far beyond disqualifying persons currently or
recently suffering from gender dysphoria. Some of those
disqualifications are completely unexplained and have no
reasonable justification. The sharp contrast to the Mattis
Policy, adopted in the first Trump Administration, which
allowed servicemembers who were transgender or who had
suffered from gender dysphoria to remain in the military,
appears to be driven by the bare desire to harm a politically
unpopular group: persons who identify as transgender. As
such, at this preliminary stage, I conclude that the Hegseth
Policy is both arbitrary and based upon animus, and for those
reasons the Policy violates Plaintiff-Appellees’ constitutional
right to equal protection of the law.
These Plaintiff-Appellees consist both of active-duty
service members and those desiring to enlist. Under the
Hegseth Policy, those Plaintiff-Appellees currently serving in
the military—who have been honorably serving for many
years—now face expulsion. In a similar vein, in accordance
with the Hegseth Policy, those Plaintiff-Appellees desiring to
enlist and who have applied for admission to the military are
now excluded from accession. I conclude first that the equities
are much stronger in favor of the current servicemembers, as
compared to those Plaintiff-Appellees who seek admission,
and second that the District Court must carefully consider the
implications of compelling the Administration to admit persons
to the military based upon a preliminary ruling on the merits
that could be revisited and reversed after a full trial on the
merits. As a result, and for separate reasons, Judge Rogers and
I vote to affirm the District Court’s preliminary injunction
enjoining the Hegseth Policy as it relates to those Plaintiff-
Appellees already in the military, while Judge Walker and I
vote to vacate the preliminary injunction as it relates to the
Plaintiff-Appellees seeking accession into the military.

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I. Procedural History
After President Trump issued Executive Order 14183
(“EO 14183”) on January 27, 2025, entitled “Prioritizing
Military Excellence and Readiness,” Plaintiff-Appellees filed
their initial complaint and moved for a preliminary injunction.1
Plaintiff-Appellees’ Motion for Preliminary Injunction, Talbott
v. United States, No. 1:25-cv-00240 (D.D.C. Feb. 2, 2025),
Dkt. No. 13. Once the government issued its implementing
guidance—otherwise known as the Hegseth Policy2—on
February 26, 2025, Plaintiff-Appellees filed their Third
Amended Complaint, as well as a Renewed Application for
Preliminary Injunction. Amended Complaint (Third), Talbott,
No. 1:25-cv-00240, Dkt. No. 69; Plaintiffs’ Motion for
Preliminary Injunction (Renewed), Talbott, No. 1:25-cv-
00240, Dkt. No. 72. The Plaintiff-Appellees’ complaint stated
that the government violated the equal protection component
of the Fifth Amendment because the Hegseth Policy is not
based on any legitimate governmental purpose, instead
“reflect[ing] animosity toward transgender people because of
1 The Plaintiff-Appellees also sought a temporary restraining order
(“TRO”). See Plaintiffs’ Motion for Temporary Restraining Order, Talbott,
No. 1:25-cv-00240, Dkt. No. 14. The District Court held a hearing on the
motion for a TRO on February 4, 2025, and ordered the parties to submit a
joint status report to determine if a TRO was still needed given the motion
for a preliminary injunction. Id. Minute Order (Feb. 4, 2025). Ultimately,
the District Court granted the motion for a preliminary injunction and never
ruled on the motion for a TRO. Mem. Op. Granting Plaintiffs’ Renewed
Application for Preliminary Injunction, Talbott, No. 1:25-cv-00240, Dkt.
No. 89.
2 The Department of Defense (“DoD”), later redesignated the Department
of War, implemented EO 14183 in a memorandum entitled “Additional
Guidance on Prioritizing Military Excellence and Readiness,” referred to in
this opinion as the “Hegseth Policy.” Talbott, No. 1:25-cv-00240, Dkt. 63-
1; J.A. 48.

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their transgender status.”3 Amended Complaint (Third),
Talbott, No. 1:25-cv-00240, Dkt. No. 69 at 6, 68–72. The
District Court heard oral argument on Plaintiff-Appellees’
preliminary injunction motion over the course of three separate
days, ultimately issuing the injunction on March 18, 2025.
Talbott v. United States, 775 F. Supp. 3d 283 (D.D.C. 2025).
In its memorandum opinion, the District Court made a
number of findings that are relevant to the proceedings before
us. First and foremost among them—driving its ultimate
conclusion enjoining the Hegseth Policy—was the District
Court’s finding that the “Military Ban [referring to both EO
14183 and the Hegseth Policy together] is soaked in animus
and dripping with pretext.” Talbott, 775 F. Supp. 3d at 326.
Further, the District Court found that the Hegseth Policy, which
disqualifies from service anyone with a history of gender
dysphoria, constitutes a ban on all transgender troops even
though it never utilizes the word “transgender.” Id. at 301. The
District Court ruled that the Policy’s purported exemption was
“one in name only,” because “[v]irtually no one” who was
transgender could meet the criteria for exemption. Id. at 301–
02. Underscoring this finding was the District Court’s
understanding that the Hegseth Policy, which even disqualifies
those who “exhibit symptoms consistent with[] gender
dysphoria,” was an “exclusion . . . so broad as to capture
persons who have never had gender dysphoria[.]” Id. at 324
(emphasis in original). Additional findings from the District
Court included that the Administration had “rushed” the
3 Some Plaintiff-Appellees also lodged violations of procedural due process
under the Fifth Amendment claims, as well as estoppel claims. Talbott v.
United States, 775 F. Supp. 3d 283, 289 (D.D.C. 2025). The District Court
did not address either of these claims as it found that Plaintiff-Appellees
“established likelihood of success on their equal protection claim,” id. at
289 n.12, and neither party has resurrected these claims in this Court.

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Hegseth Policy when it reversed an existing military policy
without “comprehensive review,” id. at 302, and that the
studies relied upon by the government to justify the Hegseth
Policy did not support the government’s actions in
disqualifying transgender personnel from serving. Id. at 303–
308.
The District Court then turned to the preliminary
injunction analysis, holding that Plaintiff-Appellees had a
likelihood of success on their equal protection claim, that they
would suffer irreparable harm absent injunction, and that the
balance of equities and public interest favor Plaintiff-
Appellees. Talbott, 775 F. Supp. 3d at 311–33. In analyzing
Plaintiff-Appellees’ equal protection claim, the District Court
applied intermediate scrutiny, as it found that the Hegseth
Policy discriminated on the basis of sex. Id. at 315–16. The
District Court’s conclusion ultimately relied on the Supreme
Court’s decision in Bostock v. Clayton County, 590 U.S. 644
(2020), which held in the Title VII context that it was
“impossible to discriminate against a person for being
homosexual or transgender without discriminating against the
individual based on sex.” Id. at 316 (citing Bostock, 590 U.S.
at 660). Alternatively, the District Court also found that
intermediate scrutiny should apply because the Hegseth Policy
discriminated on the basis of transgender status, and
transgender persons are a quasi-suspect class. Id. at 319–22.
Under the more exacting standard, the District Court held that
even with the heightened deference that the judiciary provides
to the military, the military’s stated legitimate goals of military
readiness, unit cohesion, good order, and discipline were not
substantially related to the means utilized to achieve those
goals in the Hegseth Policy. Id. at 322–26.
Even assuming that the Hegseth Policy discriminated on
the basis of a medical condition, as the government contended

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throughout the course of the lower-court proceedings, and even
assuming that the more deferential rational basis standard of
review applied, the District Court found that the Hegseth Policy
still violated equal protection because it was an “unadulterated
expression of animus” and reflective of a “bare … desire to
harm a politically unpopular group.” Id. at 327 (citing U.S.
Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973)). To
arrive at this conclusion, the District Court relied upon the
Hegseth Policy, as well as EO 14183, a White House Fact
Sheet that accompanied that Executive Order, Secretary
Hegseth’s contemporaneous tweet regarding the Policy, as well
as other factors demonstrating that the government “has
targeted transgender persons writ large.” Talbott, 775 F. Supp.
3d at 330 (citation modified).
Three days after the District Court issued its memorandum
opinion, the government filed a motion to dissolve the
preliminary injunction, highlighting DoD’s newly issued
March 21, 2025 guidance. Defendants’ Motion to Dissolve
Preliminary Injunction, Talbott, No. 1:25-cv-00240, Dkt. No.
91 at 2 (citation modified). The government explained that the
phrase “exhibit symptoms consistent with gender dysphoria”
refers only to the “diagnostic criteria outlined in the Diagnostic
and Statistical Manual of Mental Disorders and applies only to
individuals who exhibit such symptoms as would be sufficient
to constitute a diagnosis[.]” Id. (quoting March 21, 2025
guidance) (internal quotations omitted). The District Court
held a hearing on the motion that same day, and denied the
motion on March 26, 2025, finding that the government had
“regurgitat[ed]” its arguments from before, and that nothing
relevant had changed that prompted the need to dissolve the
preliminary injunction. Talbott v. United States, 775 F. Supp.
3d 445, 447 (D.D.C. 2025). The District Court also denied the
government’s request for a stay pending appeal but temporarily
stayed its injunction until March 28. Id.

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Appellants then filed an emergency appeal in this Court
for a stay of the preliminary injunction pending appeal. We
granted an administrative stay on March 27, 2025, heard oral
argument on the stay pending appeal the following month, and
then subsequently granted that stay in December. J.A. 1311;
Talbott v. United States, No. 25-5087, 2025 WL 3533344 (D.C.
Cir. Dec. 9, 2025) (Motions Panel) (Pillard J., dissenting) (per
curiam).
We now have before us the appeal of the preliminary
injunction on the merits. For the reasons articulated below and
in the separate opinions, we affirm the preliminary injunction
as it pertains to the Hegseth Policy for current servicemembers,
but we vacate the preliminary injunction with respect to the
provisions of the Hegseth Policy applicable to those persons
seeking to enlist in the military.
II. Factual Background
The government contends that this case is solely about
whether, pursuant to the Hegseth Policy, the military can
disqualify persons from military service because they have a
mental health condition. As the government concedes in its
opening brief, “[i]n general, the military has aligned . . .
disqualifying [mental health] conditions with the ones listed in
the Diagnostic and Statistical Manual of Mental Disorders
(DSM), published by the American Psychiatric Association.”
Appellants’ Br. at 5. However, the record shows that the
purpose of the Hegseth Policy is to target applicants and
servicemembers who express what the Administration believes
is a “false gender identity,” see Exec. Order No. 14183, 90 Fed.
Reg. 8757, and the Policy includes disqualifiers that go far
beyond persons currently or recently suffering from gender

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dysphoria. As such, the Hegseth Policy implicates much more
than just those mental health conditions appearing in the DSM.
A. Definitions
First, we should define terms. As stated in the 2018 report
by then-Defense Secretary James Mattis in the first Trump
Administration, when using the term “sex” or “biological sex,”
we refer to “a person’s biological status as a male or female
based on chromosomes, gonads, hormones, and genitals
(intersex is a rare exception).” J.A. 78 n.10 (quoting AGNES
GEREBEN S CHAEFER ET AL., RAND NAT ‘L D EF . R SCH. INST.,
Assessing the Implications of Allowing Transgender Personnel
to Serve Openly, 75 (RAND Corporation 2016),
https://www.rand.org/content/dam/rand/pubs/research reports
/RR1500/RR1530/RAND_RR1530.pdf (“RAND Study”)).
“Transgender” means an “individua[l] who ha[s] [a] sexual
identity or gender expression that differs from their assigned
sex at birth.” Id. (quoting RAND Study at 75). A subset of
transgender persons often have a condition called gender
dysphoria, which was defined in the fifth edition of the DSM
as a “marked incongruence between one’s
experienced/expressed gender and assigned gender” that “is
associated with clinically significant distress or impairment in
social, occupational, or other important areas of functioning.”
Id. (quoting AM. P SYCHIATRIC ASS ’N, Diagnostic and
Statistical Manual of Mental Disorders (DSM-5), 452–53 (5th
ed. 2013)).
Some transgender persons, especially those diagnosed
with gender dysphoria, choose to “transition” to their preferred
gender. Id. at 78–79. As explained in the Mattis Report,
transition can occur in various ways. “Social transition” occurs
when the person lives and works in their preferred gender
without hormone treatment or surgery. Id. at 93. “Medical

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transition” refers to using cross-sex hormone therapy and hair
removal to align secondary sex characteristics, such as breast
development, facial hair or voice depth, with the person’s
preferred gender. Id. “Surgical transition,” also called sex
reassignment surgery, involves surgery on the genitalia and
reproductive organs to make them resemble those of the
preferred gender as closely as possible. Id.
Prior to 2016, the military barred persons diagnosed with
“transsexualism,” as defined in the third edition of the DSM, or
persons with “gender identity disorder,” as defined in the fourth
edition of the DSM. Id. at 78, 81–82. “Transsexualism is a
gender identity disorder, the sufferers of which believe that
they are ‘cruelly imprisoned within a body incompatible with
their real gender identity.’” Farmer v. Moritsugu, 163 F.3d
610, 611 (D.C. Cir. 1998) (quoting THE M ERCK M ANUAL OF
M ED. INFO. 418 (1997)); see also Farmer v. Hawk-Sawyer, 69
F. Supp. 2d 120, 121 n.1 (D.D.C. 1999). (“Transsexualism is
a condition that exists when a physiologically normal person is
extremely uncomfortable and discontent with his or her
particular sex and prefers to be the other sex.”). “Gender
identity disorder is most simply described as an individual’s
confusion or discomfort about his or her sexual status as a
biological male or female.” Hawk-Sawyer, 69 F. Supp. 2d at
122. Prior to 2016, the military “[a]lso disqualified . . . persons
who had undergone genital surgery or who had a history of
major abnormalities or defects of the genitalia.” J.A. 78; see
also id. at 81–82. These two categories of disqualifiers, based
on medical diagnoses and medical treatment, had the effect of
“prevent[ing] transgender persons, especially those who had
undergone a medical or surgical gender transition, from
accessing into the military, unless a waiver was granted.” Id.
at 78.

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As discussed in the Mattis Report, the psychiatric
community significantly modified the DSM when the manual’s
fifth edition was published in 2013:
[I]t changed “gender identity disorder” to
“gender dysphoria” and designated it as a
“condition”—a new diagnostic class applicable
only to gender dysphoria—rather than a
“disorder.” This change was intended to reflect
the [American Psychiatric Association’s]
conclusion that gender nonconformity alone—
without accompanying distress or impairment
of functioning—was not a mental disorder.
Id. at 83 (emphasis added). As one of our sister Circuits has
explained, “[a]lthough the DSM once considered
‘transsexualism’ and ‘gender identity disorder’ mental
conditions, the modern edition of the DSM explains that gender
nonconformity is not in itself a mental disorder.” Cath.
Charities of Jackson, Lenawee, & Hillsdale Cntys. v. Whitmer,
162 F.4th 686, 698 (6th Cir. 2025) (Bloomekatz, J. dissenting
in part, and dissenting in judgment).
B. Transgender Policy in the Obama Administration
In 2015, then-Secretary of Defense Ashton Carter initiated
a working group to identify issues related to open military
service by transgender persons. As later described by Secretary
Mattis, “[t]his reevaluation . . . was prompted in part by
amendments to the DSM that appeared to change the diagnosis
for gender identity disorder from a disorder to a treatable
condition called gender dysphoria.” J.A. 83.
After a year of research, Secretary Carter’s working group
concluded that transgender persons should be allowed to serve

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openly in the military, as the working group’s findings
demonstrated that doing so would have “minimal impact on
unit cohesion,” a “negligible” impact on unit readiness, and any
health care costs would be an “exceedingly small proportion”
of military health care expenditures. Id. at 570–71, 649; see
also id. at 84–85. The DoD then issued the Carter Policy,
allowing transgender individuals already enlisted in the
military to serve openly starting in summer 2016. Id. at 83, 85.
The Carter Policy highlighted that for those individuals who
were diagnosed with gender dysphoria while in the military,
they could begin a treatment plan that could result in the
member transitioning genders. Id. at 85–86. Such treatment
culminated in the member requesting a change of gender
marker on the Defense Enrollment Eligibility Reporting
System (“DEERS”), with the servicemember beginning to
serve in accordance with all standards associated with the
member’s transitioned gender. Id. at 86.
The Carter Policy also allowed the accession of transgender
persons into the military starting in July 2017. Id. at 86, 88.
To the extent that any person seeking to enlist had a history of
gender dysphoria, such medical condition was disqualifying,
unless the applicant had been stable (i.e., “without clinically
significant distress or impairment”) for 18 months. Id. at 86.
With respect to past medical treatment related to gender
transition, the Carter Policy disqualified persons from joining
who had a “history of medical treatment associated with gender
transition,” unless (a) the applicant had completed all medical
treatment associated with gender transition, (b) the applicant
was stable in the preferred gender for 18 months, and (c) if the
applicant was presently receiving cross-sex hormone therapy
following the gender transition, the individual had been stable
on such hormones for 18 months. Id. Similarly, a “history of
sex reassignment or genital reconstruction surgery” was
disqualifying unless 18 months had passed since the date of any

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such surgery, “no functional limitations or complications”
persisted, and no further surgery was required. Id. at 86–87. In
other words, the Carter Policy disqualified persons with past
genital surgery or medical treatments related to gender
transition while they were still in the midst of medical or
surgical transition and not yet “stable” in their preferred
gender. Once such stability was demonstrated, the individual
was free to enlist and serve.
C. Transgender Policy from First Trump Administration
to the Biden Administration
Before the Carter accession policy could go into effect,
however, the Administration changed, and the new Secretary
of Defense, James Mattis, deferred the July 1, 2017 date to
January 2018 so that the military could review their accession
plans. A few months after the election, in August 2017,
President Trump issued a memo banning members of the
military from serving in a sex different from their sex assigned
at birth (hereinafter “2017 Memo”). This ban was enjoined by
several courts—including the District Court for the District of
Columbia—and this Court declined to stay that injunction
pending appeal. Doe 1 v. Trump, No. 17-5267, 2017 WL
6553389, at *1 (D.C. Cir. Dec. 22, 2017).
For the next several months following the 2017 Memo,
Defense Secretary Mattis convened a panel of military and
medical experts, and he issued a new transgender policy in
early 2018. The Mattis Report, which formed the basis for the
Mattis Policy, began with the “fundamental premise” that “any
eligible individual who can meet the high standards for military
service without special accommodations should be permitted
to serve. This is no less true for transgender persons than for
any other eligible individual.” J.A. 73. The Mattis Report
recognized that “transgender status alone is not a [mental

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health] condition[,]” while “[g]ender dysphoria, by contrast, is
a mental health condition that can require substantial medical
treatment.” Id. at 91. Accordingly, the Mattis Policy expressed
service qualifications strictly in terms of gender dysphoria and
associated medical treatment, rather than on whether an
applicant or servicemember expressed a certain gender
identity.
Further in accordance with the Report’s identified
“fundamental premise,” the Mattis Policy allowed transgender
persons who had not transitioned to another gender and who
had no history of gender dysphoria to join the military, so long
as they were willing and able to meet the standards of their
biological sex, a requirement for accession consistent with the
Carter Policy. Id. at 75. Transgender persons who required
gender transition or who had undergone transition were
disqualified from joining the military. Id. at 103.4 Transgender
persons with a history of gender dysphoria were disqualified
from joining the military, unless the person could “demonstrate
36 consecutive months of stability (i.e., absence of gender
dysphoria) immediately preceding their application[.]” Id. at
76. The Mattis Policy used the 36-month stability period as the
standard, rather than disqualifying persons with a history of
gender dysphoria altogether, because 36 months of stability
“[wa]s the same standard the Department . . . applie[d] to
persons with a history of depressive disorder.” Id. at 113. The
Mattis Policy also explained that “[g]iven the documented
fluctuations in gender identity among children, a history of
gender dysphoria should not alone disqualify an applicant
seeking to access the Armed Forces.” Id.
4 The provision did allow for “waivers or exceptions” where “otherwise
authorized,” but did not further explain how such waivers or exceptions
could be obtained. J.A. 103.

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Secretary Mattis handled a diagnosis of gender dysphoria
differently for persons who were already serving in the
military. As the Mattis Policy explained:
Retention standards are typically less stringent
than accession standards due to training
provided and on-the-job performance data.
While accession standards endeavor to predict
whether a given applicant will require
treatment, hospitalization, or eventual
separation from service for medical unfitness,
and thus tend to be more cautious, retention
standards focus squarely on whether the
Service member, despite his or her condition,
can continue to do the job. This reflects the
Department’s desire to retain, as far as
possible, the Service members in which it has
made substantial investments and to avoid the
cost of finding and training a replacement. To
use an example outside of the mental health
context, high blood pressure does not meet
accession standards, even if it can be managed
with medication, but it can meet retention
standards so long as it can be managed with
medication.
Id. (emphasis added).
Accordingly, while a current diagnosis of gender
dysphoria was disqualifying for accession, a person already
serving could be retained in the military without the need for a
waiver, so long as they were willing and able to serve under the
standards of their biological sex, did not require gender
transition, and were not non-deployable for more than 12
months (or the applicable policy of their Service branch). Id.

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To the extent a person with a history of gender dysphoria
sought a waiver from these standards, the Mattis Policy
provided that the gender dysphoria standards “are subject to the
same procedures for waiver as any other [mental health]
standards.” Id.
Secretary Mattis also made a genuine effort to address the
reliance interests of those servicemembers who had, prior to
the Mattis Policy, already been diagnosed with gender
dysphoria and begun medical or surgical transition to their
preferred gender. For those servicemembers, the Mattis Policy
recognized the “reasonable expectation of these Service
members that the Department would honor their service on the
terms” that existed under the Carter Policy, and it allowed them
to continue to receive all medically necessary care, change their
gender marker in DEERS, and serve in their preferred gender.
Id. at 76–77, 114. Also grounding this policy was the
Department’s “commitment to these [s]ervice members,
including the substantial investment it has made in them,” and
the Department’s judgment that those factors “outweigh[ed]
the risks identified in [its] report.” Id. at 114.5
When President Biden took office three years later, he
directed the Secretaries of Defense and Homeland Security to
ensure that all transgender individuals who could meet military
standards should be able to serve. The Office of the
5 After the issuance of the Mattis Policy, the government moved to dissolve
the preliminary injunction that had been issued based on the 2017 Memo.
In Doe 2 v. Shanahan, this Court held that there were substantial differences
between the 2017 Memo and the Mattis Policy, such that the preliminary
injunction against the 2017 Memo should be dissolved. 755 F. App’x. 19
(D.C. Cir. 2019) (per curiam). Doe 2 acknowledged that the government
had “substantial arguments” that the Mattis Policy passed constitutional
muster, but the Court did not resolve the merits of the equal protection
challenge. Id. at 25. The Mattis Policy thus went into effect after the
dissolution of the preliminary injunction.

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Undersecretary of Defense for Personnel and Readiness
created a working group, and based on the group’s conclusions,
Defense Secretary Lloyd Austin released revised accession and
retention transgender-related guidelines. The Austin Policy,
released in April 2021, allowed transgender personnel to
openly serve again, and it mirrored the Obama-era Carter
Policy in all material aspects. Talbott, 775 F. Supp. 3d at 295–
96.
D. Transgender Policy Under the Second Trump
Administration
When President Trump returned to office in January 2025,
military accession and retention policies changed again. But
instead of reverting back to the Mattis Policy from his first
term, President Trump went much further. On his first day in
office, President Trump issued an Executive Order denouncing
transgender people and the whole concept of transgender
identity as inconsistent with “biological truth.” That framing
formed the basis of the new military policy that emerged just
one month later.
On Inauguration Day, President Trump issued Executive
Order 14168 (“EO 14168”), which emphatically rejected the
legitimacy of people who identify as transgender and withdrew
federal recognition of transgender people. 90 Fed. Reg. 8615
(Jan. 20, 2025). The President decried “gender ideology,”
which he defined as “replac[ing] the biological category of sex
with an ever-shifting concept of self-assessed gender identity,
permitting the false claim that males can identify as and thus
become women and vice versa . . . .” Id. at 8615 § 2(f). The
President described transgender people as employing “gender
ideology extremism,” because they are “ideologues who deny
the biological reality of sex[.]” Id. at 8615 § 1. The central
tenet of EO 14168 was that transgender people perpetrate a lie;

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19
indeed, part of the title of the Executive Order was “Restoring
Biological Truth to the Federal Government.” Id.
Just one week later, President Trump demanded that the
military implement his vision of “biological truth.” In EO
14183, issued January 27, 2025, the President adopted the
definitions of EO 14168 and complained that “the Armed
Forces have been afflicted with radical gender ideology. . . .”
90 Fed. Reg. 8757 § 1. The President declared further that
“expressing a false ‘gender identity’ divergent from an
individual
’s sex cannot satisfy the rigorous standards necessary
for military service.”6 Id. (emphasis added). The President
further proclaimed that “adoption of a gender identity
inconsistent with an individual’s sex” conflicts not only “with
a soldier’s commitment to an honorable, truthful, and
disciplined lifestyle,” but also with “the humility and
selflessness required of a service member.” Id. (emphasis
added).
In sum, the Commander-in-Chief declared transgender
people as categorically unfit for military service explicitly
because of their gender identity. To add insult, the President
labeled transgender persons as dishonorable, undisciplined,
arrogant, selfish liars. The President directed the Secretary of
Defense to issue guidance implementing EO 14183 within 30
days. Id. at 8758 § 4(c)(i).
6 One could say that the Executive Order sought “to force conformity with
sex” throughout the military. Compare United States v. Skrmetti, 605 U.S.
495, 516 (2025) (rejecting the argument that the Tennessee law banning
certain medical and surgical treatments on gender dysphoric minors sought
to “enforce[] a government preference that people conform to expectations
about their sex” because it did not employ “sex stereotyping,” such as
requiring children to wear “sex-consistent clothing”).

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20
Less than two weeks later, Defense Secretary Pete Hegseth
reiterated the President’s view that “[e]xpressing a false
‘gender identity’ divergent from an individual’s sex cannot
satisfy the rigorous standards necessary for Military Service.”
P RIORITIZING M IL. EXCELLENCE AND R EADINESS (Feb. 7,
2025), Talbott, No. 1:25-cv-00240, Dkt. 33-1, (“Feb. 7
Memo”). Thus, once again, the purpose of the Policy was
expressed in terms of expelling from the military all
transgender persons (i.e., people who “express a false gender
identity”). To begin implementing this purpose, Secretary
Hegseth mandated that “all new accessions for individuals with
a history of gender dysphoria are paused, and all unscheduled,
scheduled, or planned medical procedures associated with
affirming or facilitating a gender transition for Service
members are paused.” Id.
The extirpation from the military of all persons with a
“false gender identity” was Secretary Hegseth’s explicit goal.
Targeting persons with a history of gender dysphoria was
merely the means of achieving that end.
On February 26, 2025, Secretary Hegseth issued the
Hegseth Policy, pursuant to EO 14183 and his February 7
Memo, stating that “the medical, surgical, and mental health
constraints on individuals who have a current diagnosis or
history of, or exhibit symptoms consistent with, gender
dysphoria are incompatible with the high mental and physical
standards necessary for military service.” J.A. 48. Under the
terms of the Hegseth Policy, persons with a history of medical
or surgical transition are disqualified from service. Id. at 53–
54. Applicants and servicemembers are required to self-report
any past diagnosis of gender dysphoria or if they are
experiencing symptoms “consistent with[] gender dysphoria,”

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21
the latter of which leads to a medical examination.7 See id. at
1290; Id. at 1302–03. The Hegseth Policy declared that people
with past or present gender dysphoria do not meet the “high
standards for Service member readiness, lethality, cohesion,
honesty, humility, uniformity, and integrity.” Id. at 50.
The Hegseth Policy’s perspective of gender dysphoria was
completely different from that of the Mattis Policy during the
first Trump Administration. Secretary Mattis had explained
that because the “vast majority” of applicants aged 17 to 24 are
ineligible to join the military for one reason or another, a
disqualification based on gender dysphoria should not be seen
as a stigma:
[N]othing in the policy should be viewed as
reflecting poorly on transgender persons who
suffer from gender dysphoria, or have had a
history of gender dysphoria, and are
accordingly disqualified from service. . . .
Transgender persons with gender dysphoria are
no less valued members of our Nation than all
other categories of persons who are disqualified
from military service.”
Id. at 77 (emphasis added). Secretary Hegseth, consistent with
President Trump, proclaimed the opposite. The Hegseth Policy
continued the character attacks asserted in EO 14183, namely
that persons afflicted with gender dysphoria are unfit for
military service because, among other things, the character of
such persons (in the President’s and Secretary’s words) is
“inconsistent” with the “high standards . . . [of] honesty,
humility, . . . and integrity.” See id. at 50.
7 The Hegseth Policy was clarified by several guidance documents issued
after February 26, 2025. See, e.g., J.A. 1289–91.

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Accordingly, the Hegseth Policy did not treat gender
dysphoria the same as all other mental health conditions, as the
Mattis Policy had. While the Mattis Policy evaluated the
fitness of those servicemembers with gender dysphoria by
placing them in the Disability Evaluation System for a case-by-
case assessment (the same as any other medical condition), see
id. at 453, the Hegseth Policy mandated that all disqualified
persons go through the administrative separation process,
which is generally used for personnel accused of misconduct.
Id. at 55–56; Id. at 1315; Id. at 1320; Id. at 543–44; see also
Talbott, 775 F. Supp. 3d at 448. While the Mattis Policy
disqualification for accession was based on a diagnosis of
gender dysphoria within the past three years (the same as other
depressive disorders), the Hegseth Policy disqualified all
persons with any history of gender dysphoria, regardless of
how long ago the person had been stable and symptom-free—
even if they were diagnosed as a child. See J.A. 50; Id. at 203;
Id. at 1092. And finally, while the Mattis Policy allowed
waiver of its disqualifications on a case-by-case basis, the
Hegseth Policy precludes anyone—regardless of whether they
are currently serving in the military or not—from obtaining a
waiver unless they can demonstrate that they have never
“attempted to transition,” see id. at 210, which appears to
exclude anyone who has ever tried to socially transition in their
lifetime (such as a biological woman wearing slacks and a tie).8
8 “Attempt to transition” must include attempts to socially transition,
otherwise the inclusion of the term would have no meaning in the waiver
provision. The Hegseth Policy already disqualifies persons who have
attempted medical or surgical transition, so including “attempt to transition”
in the waiver policy has no effect unless it means some other type of
transition—i.e., social transition. At a hearing below, the District Court
indicated that “attempt to transition” appears to include social transition,
such as a female “wearing pants and slacks . . . . [w]ith a tie,” and thus
invited Appellants to file a clarifying declaration or guidance document if

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Appellants have never articulated any basis, medical or
otherwise, for such a broad waiver disqualification based on
past experience with social transition.
The differences between the Mattis Policy and Hegseth
Policy abound, but the divergence is most stark when
considering how each Policy treated those diagnosed with
gender dysphoria while serving. Unlike the Mattis Policy, the
Hegseth Policy makes no real accommodation of the reliance
interests of persons with gender dysphoria or persons who had
transitioned while serving their country honorably and without
incident. The Mattis Policy allowed persons with gender
dysphoria who had not begun transitioning to remain in the
military, so long as they were willing and able to serve in their
biological sex. The Hegseth Policy categorically disqualifies
them. The Mattis Policy allowed servicemembers who had
transitioned or were in the process of transitioning to remain in
the military. Again, the Hegseth Policy categorically excludes
them. In response to questions about why these
servicemembers were not “grandfathered” as in the Mattis
Policy, the Administration’s response in FAQs accompanying
the Hegseth Policy was that:
While these individuals have volunteered to
serve our country and will be treated with
dignity and respect, expressing a false ‘gender
identity’ divergent from an individual's sex
cannot satisfy the rigorous standards necessary
for military service.
the term was not intended to be so broad. See Tr. of Mar. 12, 2025 hearing,
Talbott, No. 1:25-cv-00240, Dkt. No. 90 at 168–171. Appellants responded
by notifying the District Court that they declined to file any further
explanation. See Defendants’ Notice to Court (Mar. 17, 2025), Talbott, No.
1:25-cv-00240, Dkt. No. 86 at 1.

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J.A. 207 (emphasis added).
While the Hegseth Policy elsewhere cited costs and
readiness as reasons for not retaining servicemembers with
gender dysphoria, see id. at 65, that statement cannot explain
all of the broad disqualifications, such as expelling someone
because they had gender dysphoria as a child or because the
person once wore clothing or used pronouns associated with a
gender other than their biological sex. From all of the
circumstances, including the FAQ response, it is clear that the
Hegseth Policy was based, at least in part, on an intent to
exclude persons from the military due to their gender identity.
III. Analysis
Under the standard set forth in Winter v. Natural
Resources Defense Council, Inc., a plaintiff seeking a
preliminary injunction must establish: (1) that they are likely
to succeed on the merits; (2) that they are likely to suffer
irreparable harm in the absence of preliminary relief; (3) that
the balance of equities tips in their favor; and (4) that an
injunction is in the public interest. 555 U.S. 7, 20 (2008). This
Court reviews the District Court’s factual findings for clear
error, see Serono Lab’ys, Inc. v. Shalala, 158 F.3d 1313, 1318
(D.C. Cir. 1998), “[its] legal conclusions de novo,” and “its
weighing of the four relevant factors for abuse of discretion.”
In re Fed. Bureau of Prisons’ Execution Protocol Cases, 955
F.3d 106, 111–12 (D.C. Cir. 2020) (per curiam).
A. Likelihood of Success on the Merits
To determine whether the Plaintiff-Appellees have
demonstrated a likelihood of success on the merits of their
equal protection challenge (and assuming we will not employ

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25
any form of heightened scrutiny), we must analyze whether:
(1) the government has set forth a legitimate state interest in
distinguishing the military eligibility of persons excluded from
military service pursuant to the Hegseth Policy from the
eligibility of those who do not face such exclusion, and (2) the
Hegseth Policy is rationally related to a legitimate government
interest. City of Cleburne, Tex. v. Cleburne Living Ctr., 473
U.S. 432, 446 (1985). “A bare … desire to harm a politically
unpopular group” can never “constitute a legitimate
governmental interest.” Moreno, 413 U.S. at 535; see also
Cleburne, 473 U.S. at 447; Trump v. Hawaii, 585 U.S. 667, 705
(2018).
Given that this case concerns a policy decision by the
military, we will provide “great deference to the professional
judgment of military authorities concerning the relative
importance of a particular military interest.” Goldman v.
Weinberger, 475 U.S. 503, 507 (1986) (emphasis added). But
that does not mean, as the Dissent seems to suggest, see
Dissenting Op. at 29–44, that when an Article III court is tasked
with determining the constitutionality of a military policy, our
role is transformed into that of a judicial rubber stamp. While
“the tests and limitations to be applied may differ because of
the military context[,] [w]e of course do not abdicate our
ultimate responsibility to decide the constitutional question . . .
.” Rostker v. Goldberg, 453 U.S. 57, 67 (1981).F
9
9 See also Holder v. Humanitarian L. Project, 561 U.S. 1, 34 (2010)
(“Our precedents, old and new, make clear that concerns of national
security and foreign relations do not warrant abdication of the
judicial role. . . . the Government’s authority and expertise in these
matters do not automatically trump the Court’s own obligation to
secure the protection that the Constitution grants to individuals.”)
(internal citations omitted); United States v. Robel, 389 U.S. 258, 264
(1967) (highlighting that even the invocation of “war power” “does

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26
In Goldman, the Court was called upon to determine
whether an Air Force regulation mandating uniform dress
violated the First Amendment because it precluded a Jewish
officer from wearing a yarmulke while in uniform. 475 U.S. at
504. While the Court gave great deference to the military
judgment about the “relative importance” of the interest in
uniform dress, the Court also made clear that deference to this
military interest “d[id] not, of course, render entirely nugatory
in the military context the guarantees of the First Amendment.”
475 U.S. at 507. Thus, the Court carefully reviewed the
specific requirements of the regulation and evaluated its
constitutionality using the test of whether the classification
“reasonably and evenhandedly regulated” military dress. Id. at
510 (“[W]e hold that those portions of the regulations
challenged here reasonably and evenhandedly regulate dress in
the interest of the military's perceived need for uniformity.”).
Something akin to Goldman’s “reasonable and
evenhanded” test from the First Amendment context has been
used to evaluate equal protection challenges to military
policies. In Schlesinger v. Ballard, 419 U.S. 498 (1975), a
male naval lieutenant who twice failed to be selected for
promotion challenged a statute that mandated his separation
from the military after nine years of service, where the statute
applicable to women who twice failed to be promoted did not
mandate their separation until after thirteen years of service.
The Court gave great deference to the military’s interest in the
“up or out” policy, because “[i]n the absence of some
mandatory attrition of naval officers, the result would be
not remove constitutional limitations safeguarding essential
liberties”) (citing Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S.
398, 426 (1934)).

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27
stagnation of promotion of younger officers and disincentive to
naval service.” Id. at 502.
The Court was careful to note that the sex-based
classification was not based on “archaic and overbroad
generalizations” about the sexes, but rather on “the
demonstrable fact that male and female line officers in the
Navy are not similarly situated with respect to opportunities for
professional service.” Id. at 508. Because women officers had
restrictions on participation in combat and most sea duty
(which were not challenged), the Court concluded that
“Congress may thus quite rationally have believed that women
line officers had less opportunity for promotion than did their
male counterparts, and that a longer period of tenure for women
officers would, therefore, be consistent with the goal to provide
women officers with ‘fair and equitable career advancement
programs.’” Id. (quoting H.R. Rep. No. 216, 90th Cong., 1st
Sess., 5). The Court thus upheld the classification as “rational,”
observing that “[t]he complete rationality of this legislative
classification is underscored by the fact that in corps where
male and female lieutenants are similarly situated, Congress
has not differentiated between them with respect to tenure.” Id.
at 508–09. In sum, like in Goldman, the Court concluded that
the military classification was reasonable and evenhanded.
Rostker followed a similar analytical path. There, the
Court considered a due process challenge (essentially
equivalent to an equal protection challenge) to a statute that
authorized the President to require the registration of males for
the draft, but not females. See 453 U.S. at 59. Once again, the
Court gave great deference to Congress’s determination about
the composition of the military, id. at 64–67, but the Court was
careful to note that “[n]one of this is to say that Congress is free
to disregard the Constitution when it acts in the area of military
affairs.” Id. at 67. The Court observed that “[t]he

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reconciliation between the deference due Congress and our
own constitutional responsibility is perhaps best instanced in
Schlesinger v. Ballard,” id. at 70, and the Court evaluated the
statute in a manner similar to the analysis described above. The
Court pointed out that Congress had extensively studied and
debated the issue before enacting the classification, thus
rejecting the challengers’ assertion that Congress acted
“unthinkingly” or “reflexively and not for any considered
reason.” Id. at 72 (internal citations omitted). Because of the
extensive hearings and study, the Court reasoned that the
classification “was not the ‘accidental by-product of a
traditional way of thinking about females.’” Id. at 74 (quoting
Califano v. Webster, 430 U.S. 313, 320 (1977)) (internal
citations omitted).
The Court declined to specify whether it was applying
heightened scrutiny due to the sex-based nature of the
classification or rational basis scrutiny due to deference owed
Congressional judgments about the military, because
“[a]nnounced degrees of ‘deference’ to legislative judgments,
just as levels of ‘scrutiny’ which this Court announces that it
applies to particular classifications made by a legislative body,
may all too readily become facile abstractions used to justify a
result.” Id. at 69–70. Instead, the Court focused on whether,
when acting within its constitutional authority, Congress
transgressed the guarantee of equal protection under the law.
Id. Based on the fact that women were precluded from service
in combat (a restriction that was not challenged), id. at 76–77,
and the “purpose of registration was to prepare for a draft of
combat troops,” the Court held that the sex-based classification
was “sufficiently . . . related” to the Congressional purpose. Id.
at 79. In doing so, the Court observed that Congress is
permitted to prioritize military need over equity, but that
nonetheless, similarly situated persons must be treated

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29
similarly and invidious discrimination will not be
countenanced. Id. at 79–80.
These precedents demonstrate that the Court has employed
something akin to a “reasonable and evenhanded” test to
review constitutional challenges to classifications made in
military statutes and regulations. In doing so, the Court
considered military purposes and interests as presumptively
legitimate and due great deference, but the Court nonetheless
looked to whether the classification was sufficiently related to
that governmental purpose or interest. While gender-based
classifications were not subjected to heightened scrutiny, the
Court did so only after concluding that (1) such classifications
were based on detailed study rather than “archaic and
overbroad generalizations,” (2) where possible, similarly
situated persons were treated similarly, and (3) the
classification was not based on invidious discrimination. I will
employ the same analysis here.10
I note also that both sides ask us to review the likelihood
of success of the equal protection challenge mindful of United
States v. Skrmetti, 605 U.S. 495 (2025), which was decided
after the District Court’s ruling. Skrmetti considered a
Tennessee law that banned doctors from performing certain
medical treatments and surgical procedures on minors as
10 This is not, as the Dissent complains, “a new test.” Dissenting Op.
at 33 n.128. It is a description of the factors cited by the Court when
upholding military classifications, even though the classifications
were based on sex. See Goldman, 475 U.S. at 510; Schlesinger, 419
U.S. at 508–09; Rostker, 453 U.S at 74, 79–80. It stands to reason
that we should examine whether those same factors are present in
this case, where a foundational premise of the Hegseth Policy is a
sex-based classification. See Feb. 7 Memo (“Expressing a false
‘gender identity’ divergent from an individual’s sex cannot satisfy
the rigorous standards necessary for Military Service.”).

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30
treatment for gender dysphoria. Id. at 505–06. The Court held
that a state law prohibiting medical interventions to treat
gender dysphoria for minors did not classify based on sex or
transgender status. Instead, the Court held it was a
classification based on a medical condition, as the law did not
“prohibit conduct for one sex that it permits for the other.” Id.
at 510–12. The Court explained that the law “d[id] not mask
sex-based classifications,” because these medical treatments
were prohibited for both male and female minors, and thus
there was no sex discrimination. Id. at 513–17. The Court
further held that the law was not a classification based on
transgender status—a healthcare provider could not provide
puberty blockers or hormones to any minor suffering from
gender dysphoria, whether the child was transgender or not. Id.
at 517–19.
As described below, the classifications in the Hegseth
Policy have many distinctions from the classifications in
Skrmetti.11 More to the point, the Hegseth Policy does not
classify whether persons are eligible to serve in the military in
a reasonable and evenhanded manner. I focus specifically on
three provisions of the Policy: (1) the disqualification from
11 The Supreme Court stayed a nationwide preliminary injunction
entered in the Western District of Washington against the Hegseth
Policy in United States v. Shilling, 145 S. Ct. 2695 (2025), but the
Court’s reasoning was not explained and could have been based on
impropriety of the universal nature of the injunction. See Trump v.
CASA, Inc., 606 U.S. 831, 851–52 (2025). In our Court, a panel
stayed the present preliminary injunction. But because the stay
panel’s analysis was based on the understanding that “[o]n its face,
the [Hegseth] [P]olicy applies only to individuals with gender
dysphoria,” Talbott, 2025 WL 3533344, at *7, and as described
above, the policy actually disqualifies more persons than those with
current or recent diagnoses of gender dysphoria, I find its reasoning
unpersuasive.

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31
service based on any history of gender dysphoria, however
remote, (2) the disqualification from eligibility for a waiver
based on any past “attempt to transition,” and (3) the
requirement that all persons disqualified under the policy go
through the administrative separation process, rather than the
Disability Evaluation System.12
1. The Hegseth Policy contains classifications that are not
sufficiently related to a legitimate government interest.
In Skrmetti, the Court observed that “if a law neither
burdens a fundamental right nor targets a suspect class, we will
uphold the legislative classification so long as it bears a rational
relation to some legitimate end.” 605 U.S. at 510 (quoting
Romer v. Evans, 517 U.S. 620, 631 (1996)). The Court upheld
the Tennessee law because it was rationally related to the
state’s proclamation of a “legitimate, substantial, and
compelling interest in protecting minors from physical and
12 While the Mattis Policy included a severance clause with respect
to its grandfathering provisions, see J.A. 114, the Hegseth Policy
contains no severance clause. Furthermore, Appellants did not ask
the District Court, and have not asked this Court, to excise any
portion(s) of the Hegseth Policy that it finds unlawful. I therefore
conclude that the government “manifests an intent for the entire
package to rise or fall together,” see Bd. of Cnty. Comm’rs of Weld
Cnty., Colo. v. Env’t Prot. Agency, 72 F.4th 284, 296 (D.C. Cir.
2023), and I do not undertake any such severance analysis. See Nat'l
Treasury Emps. Union v. Chertoff, 452 F.3d 839 (D.C. Cir. 2006)
(“[W]e are obliged to respect the fundamental principle that agency
policy is to be made, in the first instance, by the agency itself . . . .
Accordingly, courts generally do not attempt . . . to fashion a valid
regulation from the remnants of the old rule.”) (internal citations
omitted).

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emotional harm.” Id. at 516–17 (quoting Tenn. Code. Ann. §
68-33-101(m)).
Here, Appellants have partly justified the Hegseth Policy
based on their interests in minimizing health care costs
associated with the treatment of gender dysphoria, as well as
lessening the risks to readiness and unit cohesion posed by
persons with gender dysphoria or persons who have
transitioned to another gender. These are legitimate
government interests, and they help to explain certain parts of
the Policy, like why surgical or hormonal gender transition
while serving in the military is prohibited. Yet none of them
explain why all persons with a history of gender dysphoria are
disqualified, even if the person has been asymptomatic for
many years and even if their only diagnosis was as a child.
Persons who do not currently suffer from gender dysphoria or
with such a remote history of the condition pose no costs or
risks to the military. Further, the Hegseth Policy did not even
attempt to explain why this broad classification was necessary
or appropriate, let alone why this classification is so much
broader than the Mattis Policy (which looked back three years).
Similarly, while the Hegseth Policy contains a waiver for
both retention and accession where “there is a compelling
Government interest in accessing the applicant that directly
supports warfighting capabilities,” the waiver is inapplicable to
anyone who cannot demonstrate they have never “attempted to
transition.” J.A. 53–55; Id. at 210. As discussed above, since
persons who have undertaken medical and surgical transition
are disqualified by the Hegseth Policy, “attempt to transition”
must include attempts to socially transition. To construe the
phrase otherwise would strip it of any operative force. The
Hegseth Policy never explained why this broad “attempt to
transition” language appears in the Policy. Nor does the Policy
explain what legitimate government interest this classification

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33
furthers. And Appellants never explained this provision in the
District Court. In their briefing to this Court, Appellants refer
to “attempt to transition” as a “classification based on medical
interventions (i.e., cross-sex hormone therapy and sex-
reassignment surgery).” See Reply Br. at 8. But that
formulation conflicts with the plain text of the Hegseth Policy,
because it already disqualifies persons who have attempted
medical or surgical transition, so including “attempt to
transition” in the waiver policy has no effect unless it means
some other type of transition—i.e., social transition. The
government has not told us what legitimate interest it has in
preventing a woman from joining (or remaining in) the military
because she used he/him or they/them pronouns at some point
during her lifetime, and I cannot think of one.
Further to this point, to the extent that the Hegseth Policy
disqualified people who had a current diagnosis of gender
dysphoria, it justified the classification on the basis that persons
suffering from gender dysphoria do not meet the “high
standards for Service member readiness, lethality, cohesion,
honesty, humility, uniformity, and integrity.” J.A. 50.
Requiring servicemembers to meet those high standards is a
legitimate government interest, and the Hegseth Policy
presented some evidence demonstrating why gender dysphoria
was incompatible with readiness, lethality, cohesion and
uniformity. But, Appellants conceded below that they had
presented no evidence to establish that persons with gender
dysphoria are not honest, humble, and full of integrity, see id.
at 1212–1213; Id. at 1240; Id. at 1280, and Appellants never
contended, in the District Court or in this Court, that this part
of the justification for excluding persons with a history of
gender dysphoria has any sufficient relation to a legitimate
government interest.

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As discussed in Part II, the Hegseth Policy also justified its
disqualifying classifications on the grounds that persons
“expressing a false ‘gender identity’ divergent from an
individual’s sex cannot satisfy the rigorous standards necessary
for military service.” Id. at 207. Again, setting rigorous
standards for military service is of course a legitimate
government interest. Yet also again, the Policy and guidance
documents offer no explanation or evidentiary support for the
statement that transgender persons cannot meet those rigorous
standards. The Hegseth Policy FAQs basically say that
whether transgender servicemembers can meet rigorous
military standards at all is beside the point:
Q. The Secretary of Defense has said that the
focus needs to be on “lethality, meritocracy,
accountability, standards, and readiness.”
Specifically focusing on “meritocracy,” will
consideration be given to high performing
transgender service members?
A. While these individuals have volunteered to
serve our country and will be treated with
dignity and respect, expressing a false “gender
identity” divergent from an individual’s sex
cannot satisfy the rigorous standards necessary
for military service.
* * *
Q. Did the Department consider reinstating the
Mattis Policy regarding a Service member
diagnosed with gender dysphoria and allow
them to be grandfathered?

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35
A. While these individuals have volunteered to
serve our country and will be treated with
dignity and respect, expressing a false “gender
identity” divergent from an individual’s sex
cannot satisfy the rigorous standards necessary
for military service.
Id. at 206–07.
The government abandoned all pretext of trying to craft
sex-based classifications that were “sufficiently . . . related,”
see Rostker, 453 U.S. at 79, to the legitimate government
interests in “lethality, meritocracy, accountability, standards,
and readiness.” Those interests were dismissed as irrelevant —
having the correct gender identity is all that matters. The
contrast with the Mattis Policy alone shows that the Hegseth
Policy is far from the “reasonable and evenhanded” approach
upheld in Goldman. See 475 U.S. at 510.
When asked by the District Court for evidence that persons
with a “false gender identity” cannot satisfy rigorous military
standards, Appellants offered none. See Tr. of Mar. 12, 2025
hearing, Talbott, No. 1:25-cv-00240, Dkt. 90 at 182–83.
Indeed, in the proceeding below, Appellants did not contest
that all of the currently-serving Plaintiff-Appellees, who have
served for a combined 130 years and collectively earned more
than 80 commendations, have “served honorably” and
“satisfied the rigorous standards” demanded of them. See
Talbott, 775 F. Supp. 3d at 292, 298. In our Court, Appellants
have made no attempt to explain how the classification—
expelling persons who express a “false gender identity”—
connects with the government interest in rigorous standards for
military service. Rather, Appellants’ strategy seems to be one
of willful ignorance, treating this statement as if it was not
repeatedly made in the Executive Order and policy documents,

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and to instead deflect by contending that this case is only about
gender dysphoria and medical treatments, the same as in
Skrmetti. But that is clearly not so.
2. The Hegseth Policy and the Executive Order it is based
upon are grounded, at least in part, on archaic and
overbroad generalizations about sex, rather than solely
on a diagnosis of gender dysphoria or medical treatment
related to that condition.
In Skrmetti, the Court concluded that the Tennessee law
was “simply a prohibition on the prescription of puberty
blockers and hormones to treat gender dysphoria,” and that “[a]
law prohibiting the administration of specific drugs for
particular medical uses” does not warrant heightened scrutiny.
605 U.S. at 515–16. The Court strongly implied that a law that
seeks to “force conformity with sex” or “ evinc[ing] sex-based
stereotyping” would be considered a classification based on
sex. Id.; see also Bostock v. Clayton Cnty., Ga., 590 U.S. 644
(2020).
The Mattis Report began with the “fundamental premise”
that “any eligible individual who can meet the high standards
for military service without special accommodations should be
permitted to serve. This is no less true for transgender persons
than for any other eligible individual.” J.A. 73. The Hegseth
Policy was mandated by an Executive Order which declared
that “expressing a false ‘gender identity’ divergent from an
individual
’s sex cannot satisfy the rigorous standards necessary
for military service.” 90 Fed. Reg. 8615, 8615 § 1 (emphasis
added). Thus, while the Mattis Policy was not premised on a
belief that transgender persons are unfit for the military, the
Hegseth Policy is undergirded by the opposite belief. The
Hegseth Policy clearly seeks to disqualify persons who do not
act in conformity with their sex and who do not adhere to sex-

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based stereotypes. As discussed above, Secretary Hegseth
reiterated those statements in his February 7 Memo, and in the
FAQs accompanying the Hegseth Policy. Accordingly, unlike
in Skrmetti, the challenged policy here is based, at least in part,
on sex.
Further, as described below, Appellants have proffered no
argument regarding how basing a policy on disfavoring persons
with a “false gender identity” constitutes a legitimate
government interest. Nor have Appellants demonstrated that
there is any factual basis for the statement that persons with a
“false gender identity” cannot meet the rigorous standards of
military service. Thus, the Hegseth Policy justifies its
classifications, at least in part, on factually unsupported (and
undefended) archaic and overbroad generalizations about sex,
in direct contradiction to the circumstances surrounding the
sex-based classifications in Schlesinger v. Ballard. Indeed, the
Hegseth Policy is a prototypical example of a sex-based
classification created “reflexively and not for any considered
reason,” in direct contrast to the Congressional action that the
Court upheld in Rostker. See 453 U.S at 72.
3. The Hegseth Policy does not treat, where possible,
similarly situated persons in a similar fashion. To the
extent that gender dysphoria truly forms the basis for
some disqualification criteria, gender dysphoria is
treated differently than any other medical condition in
the military.
In Skrmetti, the Court upheld Tennessee’s ban on certain
treatments for gender dysphoric minors because there were
“plausible reasons” for the government to take the action, given
the ongoing debate among medical experts regarding the risks
and benefits of medical and surgical transition treatments for
minors. See 605 U.S. at 522–23 (quoting FCC v. Beach

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Commc’ns, Inc., 508 U.S. 307, 313 (1993)). In other words,
the classification was consistent with ordinary uses of age-
based and medical-based standards.
As explained above, the Mattis Policy treated gender
dysphoria as an “analog . . . to any other mental condition listed
in DoDI 6130.03.” J.A. 113. In other words, under the Mattis
Policy, persons with gender dysphoria were treated as similarly
situated with persons with other mental health disorders, such
as depressive disorder. Id.
Here, the Hegseth Policy did not treat persons with gender
dysphoria as similarly situated to persons with other mental
health conditions. While the Mattis Policy disqualification for
accession was based on a diagnosis of gender dysphoria within
the past three years (the same as other depressive disorders),
the Hegseth Policy disqualifies all persons with any history of
gender dysphoria, regardless of how long ago the person has
been stable—even if they were diagnosed only once long ago
as a child. See id. at 50; Id. at 203; Id. at 1092.
Further, while the Mattis Policy evaluated the fitness of
those servicemembers with gender dysphoria by placing them
in the Disability Evaluation System for a case-by-case
assessment (the same as any other medical condition), see id.
at 85; Id. at 453, the Hegseth Policy mandates that all
disqualified persons go through the administrative separation
process, which is generally used for personnel accused of
misconduct. Id. at 53–54; Id. at 1297; Id. at 1315; Id. at 1320.
Indeed, former Assistant Secretary of the Air Force Alex
Wagner testified without contradiction that administrative
separation is generally used for misconduct such as drug abuse
or repeated failure to meet standards, while the Disability
Evaluation System is ordinarily used for evaluating impacts
from medical conditions. Id. at 543–44. And former Deputy

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Assistant Secretary of the Air Force Martha Soper similarly
stated in an uncontested declaration that the Hegseth Policy
departs from the military’s standard practice: “In the typical
circumstance, when a service member presents with a medical
condition, they go through the Medical Evaluation Board
(MEB) process at the wing level. From there, they would be
referred to the Disability Evaluation System (DES), which
allows the military to consider how a person’s medical
condition impacts their service and potential deployability.”
Id. at 756.
Thus, servicemembers with every other medical condition
receive an individualized review of their circumstances to
determine if they can continue to serve—except if they have
gender dysphoria.13 As the Mattis Report explained, even prior
to the time when transgender persons could first serve openly
in the military, “transgender persons were not usually
processed for administrative separation on account of gender
dysphoria or gender identity itself, but rather on account of
medical comorbidities (e.g., depression or suicidal ideation) or
misconduct due to cross dressing and related behavior.” Id. at
82. Plaintiff-Appellees pointed out this abnormal treatment of
gender dysphoria in their brief, see Appellees’ Br. at 25, and
Appellants made no response in reply.
Appellants have therefore conceded that persons with a
history of gender dysphoria are not treated the same as
similarly situated individuals.
13 See Talbott, 2025 WL 3533344, at *3–4; see also J.A. 853–923 (outlining
the procedures of the Disability Evaluation System).

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4. The Hegseth Policy contains classifications that are
based on invidious discrimination.
In Skrmetti, the challengers did not argue that the
Tennessee law was based on animus. See 605 U.S. at 516. In
contrast, Plaintiff-Appellees make such an argument here, and
the District Court agreed with them, finding that the Hegseth
Policy is “soaked in animus” and that it “stigmatizes
transgender persons as inherently unfit.” Talbott, 775 F. Supp.
3d at 326. The District Court’s animus finding is well
supported by the two Executive Orders, the February 7 Memo,
the Hegseth Policy, and the FAQs, all of which contain
numerous statements demeaning transgender people as lacking
honesty, integrity, and humility because of their gender
identity.14
Appellants do not meaningfully contest the animus finding;
they instead ignore the Administration’s repeated statements in
their briefing. As deflection, Appellants repeatedly emphasize
that the Hegseth Policy classifies on the basis of a medical
condition, and that the Policy is premised on legitimate
purposes including reducing medical and readiness risks and
costs associated with that condition, to proclaim that the
Hegseth Policy “belies any suggestion that it is motivated by
animus.” See Appellants’ Br. at 51. But Appellants cannot just
14 The Supreme Court hinted in Trump v. Hawaii that inquiries into
government action, especially in spaces where national security is
implicated, might mandate only viewing whether the “policy is
facially legitimate,” without reviewing any “extrinsic evidence.”
Hawaii, 585 U.S. at 704–05. I need not address the propriety of
reviewing extrinsic evidence here, where the two Executive Orders
and the February 7 Memo are cited and incorporated into the Hegseth
Policy, see J.A. 48–50, and the FAQs are “Approved Questions and
Answers for Media and Congressional Requests” about the Hegseth
Policy, see id. at 201.

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ignore the disparaging statements repeatedly made by the
decisionmakers. See Vill. of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 266, 268 (1977) (“Determining
whether invidious discriminatory purpose was a motivating
factor demands a sensitive inquiry into such circumstantial and
direct evidence of intent as may be available” including
“contemporary statements by members of the decisionmaking
body”).
Furthermore, as described above, some aspects of the
Hegseth Policy disqualify persons who have no current or
recent diagnosis of gender dysphoria, so those classifications
cannot be justified by concerns about costs, medical and
readiness risks, and high standards. In addition, some
classifications, like excluding persons from obtaining a waiver
because of past experience with social transitioning, have not
been explained at all. Nor did Secretary Hegseth explain the
reason for processing all disqualifications through the
administrative separation process rather than the Disability
Evaluation System.
What has been clearly and repeatedly explained are the
foundational premises of the Hegseth Policy: persons with a
“false gender identity” are unfit for the military, and persons
with a history of gender dysphoria are also unfit because they
lack “honesty, humility, . . . and integrity.” See Feb. 7 Memo;
J.A. 50. As described above, those animus-filled reasons were
expressly given to justify aspects of the Hegseth Policy. See
J.A. 206–07. As a result, this is not a case where we are left to
speculate why the government drafted such broad,
undifferentiated classifications. Unless we are going to fall for
the old Groucho Marx line—“who are you going to believe, me
or your lying eyes?”—we have direct evidence in this case that
animus motivated the classifications in the Hegseth Policy.

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But even if this were the run-of-the-mill case where the
classifications are merely unexplained and we were left with
only circumstantial evidence of animus, the Hegseth Policy
contains classifications that are “‘divorced from any factual
context from which we c[an] discern a relationship to
legitimate state interests[,]’ and ‘[their] sheer breadth [is] so
discontinuous with the reasons offered for [them]’ that the
[classifications] see[m] ‘inexplicable by anything but
animus.’” See Hawaii, 585 U.S. at 706 (quoting Romer v.
Evans, 517 U.S. 620, 632, 635 (1996)). These unexplained and
unreasoned departures from standard protocols are the kind of
“unusual deviation” that provide “strong evidence of a law
having the purpose and effect of disapproval of a class” of
individuals. See United States v. Windsor, 570 U.S. 744, 746
(2013).
All of these things, when taken together, demonstrate that
the government’s stated reason for issuing the Hegseth Policy
as based solely upon gender dysphoria was pretextual, and that
instead, the Hegseth Policy was premised, at least in part, on a
non-legitimate state interest to harm the politically unpopular
group of transgender persons. See Kelo v. City of New London,
Conn., 545 U.S. 469, 491 (2005) (Kennedy J., concurring)
(“[A] court applying rational-basis review under the Equal
Protection Clause must strike down a government
classification that is clearly intended to injure a particular class
of private parties, with only incidental or pretextual public
justifications.”).
For these reasons, I reject the Dissent’s conclusion that the
Hegseth Policy is not at all based upon animus or that we
should endeavor to imagine legitimate justifications for the
problematic classifications. See Dissenting Op. at 39–44. The
government is not allowed to fabricate a legitimate justification
for a classification post hoc, when it has already articulated an

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43
impermissible justification ex ante. Nor is our dissenting
colleague.
The “any conceivable reason” doctrine came about because
neither Congress nor the President is required to give a reason
for every classification at the time they make it. See Heller v.
Doe by Doe, 509 U.S. 312 (1993) (“[A] classification ‘must be
upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a
rational basis for the classification.’”) (quoting Beach
Commc’ns, 508 U.S. at 313). Rational basis doctrine requires
us to presume that a classification is based on any plausibly
legitimate justification we can imagine when no justification
was expressly stated contemporaneously; that follows from the
presumption that when the legislature (or the President) did not
give a reason for the classification at the time that they made it,
they are presumed to have acted for any plausible constitutional
reason. Id.
But the doctrine has never allowed the Court to stick its
head in the sand, like the proverbial ostrich, and ignore the
justification that was expressly articulated at the time the
decision was made. Indeed, the law, like common sense,
requires the Court to evaluate the validity of the justification
that was proclaimed at the time the classification was
made. See Minnesota v. Clover Leaf Creamery Co., 449 U.S.
456, 463, n.7 (1981) (“In equal protection analysis, this Court
will assume that the objectives articulated by the legislature are
actual purposes of the statute, unless an examination of the
circumstances forces us to conclude that they ‘could not have
been a goal of the legislation.’”) (quoting Weinberger v.
Wiesenfeld, 420 U.S. 636, 648, n.16 (1975)). As such, “th[e]
Court’s review does require that a purpose may conceivably or
‘may reasonably have been the purpose and policy’ of the
relevant governmental decisionmaker.” Nordlinger v. Hahn,

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44
505 U.S. 1, 15–16 (1992) (emphasis added) (quoting Allied
Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528–29 (1959)).
It is neither conceivable nor reasonable to conclude that the
President acted for reasons other than those he expressly gave
in the Executive Order, nor is it conceivable or reasonable to
conclude that the Secretary acted for reasons other than the
ones he expressly gave when promulgating the Hegseth
Policy. See Allied Stores of Ohio, 358 U.S. at 530 (in
explaining the holding of Wheeling Steel Corp. v. Glander, 337
U.S. 562 (1949), the Court observed that “[h]aving themselves
specifically declared their purpose, the Ohio statutes left no
room to conceive of any other purpose for their existence”); see
also Nordlinger, 505 U.S. at 16, n.7 (“After the Court in
Wheeling Steel determined that the statutory scheme’s stated
purpose was not legitimate, the other purposes did not need to
be considered[.]”). If we are at the point where invidious
reasons that were expressly given for a classification can be
completely ignored and replaced with our imagined non-
invidious reasons, then equal protection jurisprudence has truly
become bankrupt.
* * *
In sum, applying Skrmetti and the military precedents
described above, Plaintiff-Appellees demonstrated a likelihood
of success on the merits that the Hegseth Policy violates the
Equal Protection Clause.
B. Irreparable Harm
To demonstrate irreparable harm, the movant must show
that the harm is “certain and great,” “actual and not
theoretical,” and that it is “beyond remediation” by
compensatory or other relief at the conclusion of litigation.

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45
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290,
297 (D.C. Cir. 2006). Accordingly, “loss of earnings or
damage to reputation” cannot afford a basis for finding
irreparable harm. Sampson v. Murray, 415 U.S. 61, 89–90
(1974). That being said, the “loss of constitutional freedoms,
for even minimal periods of time, unquestionably constitutes
irreparable injury.” Mills v. District of Columbia, 571 F.3d
1304, 1312 (D.C. Cir. 2009) (citation modified).
Here, Plaintiff-Appellees contend that they have been
irreparably harmed because the Hegseth Policy deprives them
of “constitutional freedoms,” namely the loss of their right to
equal protection of the law under the Due Process Clause.
Appellees’ Br. at 60. Since Plaintiff-Appellees have
demonstrated a likelihood of success on the merits—i.e., that
the Hegseth Policy violates the equal protection guaranteed to
them by the Fifth Amendment—then it follows that they have
been irreparably harmed. As we said in Singh v. Berger, where
we held that the Marine Corps’ refusal to allow plaintiffs to
adhere to certain grooming standards in accordance with their
religion was a violation of the Religious Freedom Restoration
Act, the “indignity of being unable to serve for reasons that
. . . bear no relationship to their ability to perform” constitutes
irreparable harm. 56 F.4th 88, 110 (D.C. Cir. 2022) (citation
modified); see also 11A WRIGHT & M ILLER , F ED. P RAC . &
P ROC . § 2948.1 (3d ed. 2021) (“[W]hen there is an alleged
deprivation of a constitutional right . . . many courts find that
no further showing of irreparable injury is necessary.”).
C. Balance of Equities and the Public Interest
I now turn to the balance of equities and public interest,
which merge when the government is the opposing party. See
Karem v. Trump, 960 F.3d 656, 668 (D.C. Cir. 2020). Even
when a plaintiff can show irreparable harm, she is not entitled

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to a preliminary injunction as a matter of right. See Winter, 555
U.S. at 24. We “must balance the competing claims of injury
and . . . consider the effect on each party of the granting or
withholding of the requested relief.” Id. (quoting Amoco Prod.
Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 542 (1987)). We
review the District Court’s weighing of these factors for abuse
of discretion. Winter, 555 U.S. at 32.
1. Retention Policy
I begin by reviewing the District Court’s weighing of these
factors in granting the preliminary injunction of the Hegseth
Policy as applied to current servicemembers.
Appellants argue that any irreparable harm demonstrated
by the Plaintiff-Appellees is outweighed by the harm to the
government. They state that the Austin Policy, the predecessor
to the Hegseth Policy, and which allowed transgender people
and persons with a recent diagnosis of gender dysphoria to
serve in the military, “poses substantial risks to an effective
national defense,” which they classify as “specific predictive
judgments by senior military officials” that must be afforded
great deference. Appellants’ Br. at 53–54 (internal citations
omitted).
But, as the District Court found, there was little “specific
predictive judgment[] by senior military officials” involved in
the formulation and issuance of the Hegseth Policy. See
Talbott, 775 F. Supp. 3d at 333 (finding that Appellants had
provided “no testimony” from military officers as to the burden
a preliminary injunction would place on the government).
Indeed, the Mattis Policy—adopted in the first Trump
Administration—concluded that the benefits of retaining
servicemembers who were transgender or who had suffered
from gender dysphoria outweighed any risks they posed to the

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military. See J.A. 114. Moreover, the government put forward
no evidence that the Austin Policy posed a substantial risk to
national security, and the Plaintiff-Appellees proffered
affidavits and declarations all pointing to the contrary. A
reversal to the status quo that has been held for four years
cannot possibly be deemed a major threat to national security
when no such national security threats were raised in years
prior. Cf. Ziglar v. Abbasi, 582 U.S. 120, 143 (2017)
(“[N]ational-security concerns must not become a talisman
used to ward off inconvenient claims—a label used to cover a
multitude of sins.”) (internal citations omitted).
Specifically, Appellants have not shown how a
preliminary injunction preventing them from removing current
servicemembers will harm national security. As shown above,
Appellants have not contested that all of the currently serving
Plaintiff-Appellees, who dedicated a combined 130 years to
military service and collectively earned more than 80
commendations, have served honorably and met all military
standards during their service. Appellants have thus forfeited
any argument that, for purposes of the balance of equities
analysis, retaining these servicemembers will harm national
security.
In sum, the balance of equities, as well as the public
interest, tips in favor of the Plaintiff-Appellees who are
currently serving.
2. Accession Policy
However, the calculus is different for those Plaintiff-
Appellees who seek to join the military. While Plaintiff-
Appellees who seek admission to the military have been
deprived of constitutional freedoms, the harms and equities of
their situations are not identical to those of persons already

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serving. Plaintiff-Appellees seeking admission to the military
can still obtain full relief later, following a final adjudication
on the merits. For those servicemembers facing expulsion, it
is not clear how easily they can be reinstated and made whole.
But even if they can be reinstated after being separated, it
appears to us to be a much greater hardship to end a military
career than to delay the start of one.
Moreover, those Plaintiff-Appellees who have been
serving for years have demonstrated that their presence in the
military is not harming national security, but we can only make
a predictive judgment in that regard for the Plaintiff-Appellees
seeking admission. The point about relative risk to national
security is particularly relevant because the effect of the
preliminary injunction is to revert to the Austin Policy, which
allows accession of persons with a history of gender dysphoria
so long as they have 18 months of stability. As described
above, the Mattis Policy required 36 months of stability for
accession because that is the same stability standard for
depressive disorder. The shorter stability standard potentially
poses increased risk of return of the illness, whereas, the risks
are less unknown for persons already serving and being
evaluated by their superiors and military doctors. This was a
relevant consideration for the District Court in determining
whether to stay its hand in imposing a preliminary injunction
that would revert to the Austin Policy accession standards. See
Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)
(“Where plaintiff and defendant present competing claims of
injury, the traditional function of equity has been to arrive at a
‘nice adjustment and reconciliation’ between the competing
claims[.]”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329
(1944)).
Additionally, we must also consider that this is only a
preliminary determination of the merits. It is still possible that

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following complete factual development and briefing,
Appellants could prevail on the merits. If that were to happen,
and in the meantime new servicemembers were admitted who
would have been excluded under the Hegseth Policy, that
would have caused Appellants to admit persons they were
actually legally entitled to exclude—a distinct harm. This is
against the public interest. See Yakus v. United States, 321 U.S.
414, 440–41 (1944) (“[W]here an injunction is asked which
will adversely affect a public interest for whose impairment,
even temporarily, an injunction bond cannot compensate, the
court may in the public interest withhold relief until a final
determination of the rights of the parties, though the
postponement may be burdensome to the plaintiff.”).
Given these differences, the District Court was obligated
to consider separately the balance of equities and public
interest for those who were already serving in the military as
compared to those who are seeking to enlist. Rather, it
analyzed—and balanced—both sets of injuries, equities and
interests as one. See Talbott, 775 F. Supp. 3d at 333. In doing
so, the District Court abused its discretion. See Kickapoo Tribe
of Indians of Kickapoo Rsrv. in Kansas v. Babbitt, 43 F.3d
1491, 1497 (D.C. Cir. 1995) (District Court abuses its
discretion when it “failed to consider a relevant factor”);
NextEra Energy Glob. Holdings B.V. v. Kingdom of Spain, 112
F.4th 1088, 1108–11 (D.C. Cir. 2024) (holding that the District
Court had abused its discretion in granting a preliminary
injunction when it “overlooked” relevant factors in its
analysis).
Accordingly, I conclude that the District Court abused its
discretion in failing to consider relevant issues when balancing
the preliminary injunction factors with respect to the accession
standards of the Hegseth Policy. As a result, and for our
separate reasons, Judge Rogers and I vote to affirm the

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preliminary injunction with respect to the retention standards
of the Hegseth Policy, while Judge Walker and I vote to vacate
the preliminary injunction as to those Plaintiff-Appellees
seeking admission to the military. Further, we hold that the
District Court’s universal injunction should be narrowed to the
named Plaintiff-Appellees who are currently serving in the
military. See Trump v. CASA, Inc., 606 U.S. 831, 851–52
(2025).
IV.
For the reasons expressed above and in the separate
opinions, we affirm in part, and vacate in part, the District
Court’s preliminary injunction, and we remand for proceedings
consistent with this opinion.

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ROGERS , Senior Circuit Judge, concurring in part and
dissenting in part: On January 27, 2025, President Trump
issued Executive Order 14183 that stated:
It is the policy of the United States Government to
establish high standards for troop readiness, lethality,
cohesion, honesty, humility, uniformity, and integrity.
This policy is inconsistent with the medical, surgical,
and mental health constraints on individuals with
gender dysphoria. This policy is also inconsistent with
shifting pronoun usage or use of pronouns that
inaccurately reflect an individual’s sex.
90 Fed. Reg. 8757. The Secretary of Defense was to implement
this policy. Id. at 8757–58. As relevant, the Hegseth Policy
disqualifies from military service all current servicemembers
“who have a current diagnosis or history of, or exhibit
symptoms consistent with, gender dysphoria” and “who have a
history of cross-sex hormone therapy or a history of sex
reassignment or genital reconstruction surgery as treatment for
gender dysphoria or in pursuit of a sex transition.” Dep’t of
Defense, Additional Guidance on Prioritizing Military
Excellence and Readiness, at 6 (Feb. 26, 2025) (“the Hegseth
Policy”). In addition to this retention policy, the same group
of people are barred from accession by appointment,
enlistment, or induction into the military. Id. at 4. Various
waivers are provided under the Hegseth Policy, but they are
exceedingly restrictive. See Wilkins Op. at 22–23, 32.
On appeal by the government, Judge Wilkins concludes
that the district court properly enjoined the Hegseth Policy on
retention and abused its discretion on accession upon weighing
the equities under the preliminary injunction factors. See
Wilkins Op. at 4. For the following reasons, I would affirm the
order enjoining the policy on retention and accession, as
applied to the named plaintiffs. Therefore, I concur in part, and

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I respectfully dissent in part on accession, see Wilkins Op. Part
III.C.2.
I.
A threshold question of law is what level of scrutiny
applies in evaluating the plaintiffs-appellees’ likelihood of
success on the merits of their equal protection claim. In
challenging the district court’s order enjoining the Hegseth
Policy, the government contends that the Policy is subject only
to rational basis review because of the high level of deference
due to military judgments by the courts. See Appellants Br. at
22–27 (citing e.g., Rostker v. Goldberg, 453 U.S. 57 (1981),
and Goldman v. Weinberger, 475 U.S. 503 (1986)).
Additionally, the government contends that rational basis
review applies independently of military deference because the
Hegseth Policy “draws lines based on a medical condition
(gender dysphoria)” rather than “identity or status.” Id. at 26.
It compares the Policy to a state law restricting certain medical
interventions for minors that the Supreme Court upheld under
rational basis review in United States v. Skrmetti, 605 U.S. 495
(2025). Further, the government contends that under rational
basis review the Hegseth Policy must be upheld even if it was
based in part on animus “so long as it can reasonably be
understood to result from a justification independent of
unconstitutional grounds.” Appellants Br. at 52 (quoting
Trump v. Hawaii, 585 U.S. 667, 705 (2018)).
These contentions warrant examination. It is undisputed
that “courts must give great deference to the professional
judgment of military authorities concerning the relative
importance of a particular military interest.” Goldman, 475
U.S. at 503; see Rostker, 453 U.S. at 64–65. But in neither
Goldman nor Rostker did the Supreme Court hold that rational
basis review automatically applies where the military is

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3
involved. To the contrary, in Rostker, the Court rejected the
government’s argument to that effect. 453 U.S. at 69–70.
Although the Court deferred to Congress’ determination that
only men needed to register for the draft — observing that the
issue had been “extensively considered” in “hearings, floor
debate, and in committee” including “extensive testimony and
evidence,” id. at 72 — the Court explained that it did “not think
that the substantive guarantee of due process or certainty in the
law will be advanced by any further ‘refinement’ in the
applicable tests as suggested by the Government,” id. at 69–70.
While focusing on whether Congress violated equal protection,
the Court indicated that it would apply intermediate scrutiny as
established in Craig v. Boren, 429 U.S. 190 (1976). See id. at
70.
Nor does the Supreme Court’s recent decision in Skrmetti
necessarily require the Hegseth Policy be assessed under
rational basis review. There, the Court upheld state restrictions
on the use of certain medical treatments for gender dysphoria
in minors. 605 U.S. at 511. It concluded that the restrictions
were classified based on age and medical conditions rather than
on a person’s sex or transgender identity. Id. at 511–18.
Notably, in so doing, the Court contrasted regulation of “a class
of treatments or conditions” with regulation of “a class of
persons identified on the basis of a specified characteristic.”
Id. at 519 n.3. As a result, a policy targeting women would not
be sex-neutral merely because it was recast as one targeting “all
individuals who have ever, or may someday, menstruate.” Id.
(citation and internal quotation marks omitted). Arguably, the
same distinction applies here: the Hegseth Policy does not just
regulate a particular medical procedure but instead excludes “a
class of persons identified on the basis of a specified
characteristic,” id., namely, transgender individuals, who may
have a history or symptoms consistent with gender dysphoria.

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4
And even if rational basis review is the proper standard, it
is unclear whether the Supreme Court’s holding in Trump v.
Hawaii is properly understood as establishing the generalized
principle about animus that the government espouses. See
Appellants Br. at 52. There, the Court addressed the admission
and exclusion of foreign nationals, an area in which the
political branches exercise a “fundamental sovereign attribute”
and the judiciary’s role “is highly constrained.” 585 U.S. at
702, 704 (citations omitted). The Court held that it would
review a presidential proclamation barring entry of foreign
nationals from six predominantly Muslim countries, including
“extrinsic evidence” of animus, and that it would “uphold the
policy so long as it can reasonably be understood to result from
a justification independent of unconstitutional grounds.” Id. at
705. That conclusion does not require lower courts to presume
that evidence of animus is immaterial under rational basis
review beyond the immigration context in Trump v. Hawaii.
At this preliminary, pretrial stage of the proceedings, the
court need not resolve complex questions involving the
intersection of military deference under Skrmetti, and Trump v.
Hawaii, nor delineate a universal test that would apply to all
military contexts, see Wilkins’ Op. at 29 & n.10. Even under
the highly deferential form of rational basis review espoused
by the government, see Appellants Br. at 52, a policy is
unconstitutional if it is “inexplicable by anything other than
animus.” Trump v. Hawaii, 585 U.S. at 706 (quoting Romer v.
Evans, 517 U. S. 620, 632, 635 (1996)). Plaintiffs-appellees
are likely to make that showing. Judge Wilkins identifies three
features of the Hegseth Policy that are unexplained and
irrational. See Wilkins Op. at 24–32, 37–39. At least two are
illustrative of that problem, and our dissenting colleague does
not suggest that a policy explainable only by animus is
constitutional, see Walker Op. at 40–43.

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5
First, consider the way in which the Hegseth Policy on
retention differs from the standard procedures of the
Department of Defense by calling for discharge before
individualized assessments are made. See Wilkins Op. at 38–
39 (citing declaration of former Deputy Assistant Secretary of
the Air Force). Government counsel appeared to concede
during oral argument that gender dysphoria is the only
identifiable medical condition that automatically triggers
administrative separation without an individualized assessment
of whether the condition is so burdensome on the service
member as to preclude continued service. Oral Arg. Tr. at
133–34 (Jan. 22, 2026). In any event, the government has
provided no explanation for why this medical condition must
be treated differently than all others. Nor is there a basis in the
record that enables the court to conclude that gender dysphoria
poses a unique danger dwarfing other medical conditions. The
district court found, based on record evidence, that the enlisted
plaintiffs have collectively “provided over 130 years of
military service” and “earned more than 80 commendations”
from the military. Talbott v. United States, 775 F. Supp. 3d
283, 291 (D.D.C. 2025).
The government’s concerns about the negative impacts on
cohesion and privacy do not advance its position. Appellants
Br. at 35–38. The government maintains that “permitting
individuals to serve inconsistently with applicable sex-specific
standards ‘would invade the expectations of privacy’ of other
servicemembers” who share “berthing, bathroom, and shower
facilities.” Id. at 36 (quoting Department of Defense Report
and Recommendations on Military Service by Transgender
Persons, at 37 (Feb. 2018) (“Mattis Policy”)). That position is
disconnected from the government’s repeated refrain that the
Hegseth Policy, like the Mattis Policy, is not a “blanket ban”
on transgender personnel in the military and is instead an
exclusion of individuals who have the medical condition of

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6
gender dysphoria, see, e.g., Appellants Br. at 40, for “not all
trans-identifying individuals have gender dysphoria” and the
Hegseth Policy “permits individuals with a history of gender
dysphoria to be considered for waivers,” id. at 41. So,
according to the government, some transgender individuals
may be able to serve capably in the military, while no reason is
offered or evident why current service members are barred
from the standard individualized evaluation to determine if
they can continue to serve.
Second, the Hegseth Policy waiver provision, as
implemented, requires that both current servicemembers and
applicants show that they “never attempted to transition to any
sex” other than their own sex at birth. See Hegseth Policy at
4–5; Dep’t of Defense, Memorandum for Senior Pentagon
Leadership at 1 (March 4, 2025). The plain text can be
understood to exclude anyone who has ever attempted to
socially transition and the government, which declined to
clarify this provision upon the district court’s request, belatedly
and unpersuasively suggests that the reference is limited to
medical interventions. See Wilkins Op. at 22–23 & n.8, 32–33
(citing Reply Br. at 8). It is unclear what interest the military
would have in categorically excluding such individuals who
otherwise meet the criteria for a waiver under the Hegseth
Policy. Like the retention policy, this aspect of the accession
policy appears designed to target a group of disfavored people,
not to address a particular medical condition.
The Supreme Court’s recent stay order in United States v.
Shilling, 145 S. Ct. 2695 (2025), does not require a different
conclusion, but signals the need to narrow the injunction to
apply only to the named plaintiffs-appellees. There, the Court
stayed, without explanation, a nationwide preliminary
injunction of the Hegseth Policy in the Western District of
Washington. Shilling v. United States, 773 F.Supp.3d 1069,

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7
1098–99 (W.D. Wash. 2025). The stay was issued shortly
before Trump v. CASA, Inc., 606 U.S. 831, 837 (2025), holding
that such universal relief issued by the district court “likely
exceed[s] the equitable authority that Congress has granted to
federal courts.” In Shilling, the district court determined that it
was unnecessary to consider whether the Hegseth Policy had
been fueled by animus. Compare Shilling, 773 F.Supp.3d at
1098–99, with Talbott, 775 F. Supp. 3d at 326–32.
The cases cited in the dissent do not require a different
conclusion either. While the Supreme Court has emphasized
the need for deference to military judgments, it has also
repeatedly recognized that constitutional rights still apply in
this realm. See, e.g., Rostker, 453 U.S. at 67–68 (stating that
Congress is not “free to disregard the Constitution when it acts
in the area of military affairs,” because “[i]n that area, as any
other, Congress remains subject to the limitations of the Due
Process Clause”); Goldman, 475 U.S. at 507 (stating that
unique aspects of military life “do not, of course, render
entirely nugatory in the military context the guarantees of the
First Amendment”); Chappell v. Wallace, 462 U.S. 296, 304
(1983) (“This Court has never held, nor do we now hold, that
military personnel are barred from all redress in civilian courts
for constitutional wrongs suffered in the course of military
service.”); cf. Weiss v. United States, 510 U.S. 163, 176 (1994)
(“Congress, of course, is subject to the requirements of the Due
Process Clause when legislating in the area of military affairs,
and that Clause provides some measure of protection to
defendants in military proceedings.”). See also Wilkins Op. at
25 & n.9. In looking past this principle, our dissenting
colleague embraces a logic of military deference that has no
clear end point. See, e.g., Walker Op. at 9. Notwithstanding
the postulate that “[o]nly the Executive and Congress are
responsible for system-wide military judgments about the
composition of the armed forces,” id. at 45, the courts do have

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8
a role in evaluating military determinations that intrude upon
individual constitutional rights, as the Supreme Court has
repeatedly made clear in drawing the line between exercises of
military judgment and constitutional rights held by members of
the military.
Therefore, because features of the Hegseth Policy are
inexplicable by anything other than animus, and the “loss of
constitutional freedoms” is an irreparable injury, Mills v.
District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009),
plaintiffs-appellees have shown irreparable harm by
demonstrating a likelihood of success on their equal protection
claim.
II.
The remaining question is whether the district court erred
by enjoining the Hegseth Policy on accession. In the district
court, neither of the parties raised the issue of severability on
the merits. On appeal, the government has not challenged the
record evidence on which the district court relied in issuing the
injunction on retention and accession. Evidence before the
district court included declarations showing professional and
economic harms by plaintiffs who were seeking to join the
military and claimed that the Policy violated their
constitutional rights. See, e.g., Declarations of Koda Nature
and Cael Neary.
So, the question is whether the district court abused its
discretion in weighing the preliminary injunction factors. See
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 32 (2008);
Clevinger v. Advoc. Holdings, Inc., 134 F.4th 1230, 1233 (D.C.
Cir. 2025). Judge Wilkins concludes that it has. In his opinion,
the district court “was obligated to consider separately the
balance of equities and public interest for those who were

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9
already serving in the military as compared to those who are
seeking to enlist” and overlooked a relevant factor by
considering “both sets of injuries, equities and interests as
one.” Wilkins Op. at 49. He posits that the “relative risk to
national security” may be more significant for the accession
policy than the retention policy because the “Plaintiff-
Appellees who have been serving for years have demonstrated
that their presence in the military is not harming national
security, but we can only make a predictive judgment in that
regard for [those] seeking admission.” Id. at 48.
Under the abuse of discretion standard, the question before
an appellate court is not whether it “would as an original
matter” reach a particular result; instead, “it is whether the
District Court abused its discretion in doing so.” Ins. Corp. of
Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694,
707 (1982) (quoting National Hockey League v. Metropolitan
Hockey Club, Inc., 427 U.S. 639, 642 (1976) (citing C. W RIGHT
& A. M ILLER, FEDERAL PRACTICE & PROCEDURE : CIVIL §2284,
p. 765 (1970), and cases of the Eighth and Second Circuits
Courts of Appeal)). The abuse of discretion standard
“contemplates reasoned decision making on the basis of
relevant and appropriate considerations to the task at hand.”
Kickapoo Tribe of Indians of Kickapoo Rsrv. in Kansas v.
Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995). In reviewing for
abuse of discretion, the appellate court considers whether the
district court “failed to consider a relevant factor,” whether it
“relied on an improper factor,” and whether its “reasons given
reasonably support the conclusion.” Id. (quoting Johnson v.
United States, 398 A.2d 354, 365 (D.C. 1979), and citing
Maurice Rosenberg, Judicial Discretion of the Trial Court,
Viewed from Above, 22 SYRACUSE L. REV. 635 (1971)). A
district court does not abuse its discretion simply because an
alternative conclusion may also be permissible; the appellate
court’s inquiry is instead whether the determination upon

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10
review “was a permissible alternative available to the district
court.” United States v. Kanu, 695 F.3d 74, 81 (D.C. Cir.
2012); see United States v. Volvo Powertrain Corp., 758 F.3d
330, 345 (D.C. Cir. 2014) (citations omitted). This
characteristic distinguishes review for abuse of discretion from
review of factual findings for clear error and de novo review
for questions of law. Rosenberg, 22 SYRACUSE L. REV. at 646
(analyzing federal and state cases).
The district court, upon concluding that the plaintiffs were
likely to succeed on their equal protection claim, balanced the
equities and the public interest, and determined that the
Hegseth Policy should be enjoined. Talbott, 775 F. Supp 3d at
332–33. The court concluded that the plaintiffs and the public
interest would be harmed by the enforcement of an
unconstitutional policy, while the government had failed to
demonstrate that leaving the prior policy in place would
impede the military. Id. The prior accession policy had been
in effect from 2021 to 2025, yet neither the Hegseth Policy nor
the government provided “any studies or declarations that
explain why maintaining the status quo pending litigation
would unfairly burden the military.” Id. at 333. Instead, the
plaintiffs’ evidence indicated the opposite: summarizing
“declarations from the military leaders responsible for
integrating transgender persons into open military service,” the
district court found that this evidence showed that “recruiting,
unit cohesion, and military readiness have improved since
2021.” Id. at 292. That evidence, the district court concluded,
indicated that accession under the Hegseth Policy would harm
military interests. See id. at 333. An uncontested declaration
of the Secretary of the Navy who served from 2021 to 2025
stated that “there is no evidence-based justification for
excluding from service someone who meets all applicable
standards merely because they are transgender,” and “such
exclusion would harm military readiness by depriving our force

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11
of qualified personnel who have proven their ability to serve.”
Id. at 308 (citation and alterations omitted).
Given the uncontested record evidence and the nature of
this court’s review for abuse of discretion, the district court did
not abuse its discretion in enjoining the Hegseth Policy on
accession. This is so even if based on the evidence and
argument before it, the district court could have concluded that
the retention policy imposes “a much greater hardship” on
those currently in the military than those who seek to join it, as
Judge Wilkins concludes, Wilkins Op. at 48, and only enjoined
the Hegseth Policy on retention due to national security
concerns. But the existence of a permissible alternative is not
the same as showing that the district court abused its discretion
by choosing another permissible alternative. See, e.g., Volvo
Powertrain Corp., 758 F.3d at 345; Kanu, 695 F.3d at 81.
The district court recognized that deference was due to the
military’s judgment, not “[b]lind [d]eference.” Talbott, 775 F.
Supp. 3d at 291, 312–13 (citing, e.g., Rostker, 453 U.S. at 72,
83). That court exhaustively reviewed the record evidence and
the parties’ arguments. See id. at 300–33. That court reached
conclusions based on the uncontested declarations by military
officials about the very issue now of concern to Judge Wilkins:
potential harm to the military if plaintiffs-appellees were
permitted to join the military service. Id. at 333. No relevant
factor was overlooked. Suggesting that the district court erred
in balancing the equities by not framing its analysis of harm in
terms of the “greater hardship” in “end[ing] a military career”
as opposed “to delay[ing] the start of one” and by not
speculating that “the shorter stability standard [of the prior
policy] potentially poses increased risk of return of the illness,”
Wilkins Op. at 48, “fail[s] to give the trial court the deference
that is the hallmark of abuse-of-discretion review.” Gen. Elec.
Co. v. Joiner, 522 U.S. 136, 143 (1997). That suggestion is at

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12
odds with the district court’s factual findings of harm to the
military under the Hegseth Policy on accession by contrast with
military improvements under the prior policy, based on
uncontested declarations of military officials. See, e.g.,
Wilkins Op. at 34–36, 41–42. No record evidence confirms the
medical speculation offered by Judge Wilkins. So far, then, the
government has not presented a basis for this court, upon
review for abuse of discretion, to vacate the injunction on
accession, and, therefore, I respectfully dissent and do not join
Judge Wilkins’ opinion in Part III.C.2.
Accordingly, I would affirm the order of the district court
enjoining the Hegseth Policy on retention and accession, as
modified to apply to the named plaintiffs, see Trump v. CASA,
Inc., 606 U.S. at 837.

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WALKER, Circuit Judge, dissenting:
Judge Stephen Williams, “one of the most distinguished
jurists ever to serve on the D.C. Circuit Court of Appeals,”1
wrote seven years ago that in the military “there is no
constitutional right for, say, biological males who identify as
female to live, sleep, shower, and train with biological females.
Whether allowing such flexibility in military service is a good
idea or not is of no concern to the courts; that is a question for
the people acting through their elected representatives.”2
Now, as then, transgender plaintiffs object to a policy that
excludes them from the military. Now, as then, the district
court has enjoined the policy’s operation. And now, as then,
the Government has appealed.
“Once we abstract away from the politically charged
subject-matter — as we must — this is a straightforward legal
case.”3 We have neither the expertise nor the authority to
decide whether the military can exclude the plaintiffs from its
ranks. The Constitution assigns that authority to Congress and
the Commander in Chief.
Because their claim flouts that division of power, the
plaintiffs cannot identify a single binding precedent holding
that the Constitution dictates a composition of forces contrary
to the preferences of our nation’s political branches.4
Not one.
1 Michael S. Greve, A Remembrance of Stephen F. Williams, Law &
Liberty (Nov. 16, 2020), https://perma.cc/MS4U-CC74.
2 Doe 2 v. Shanahan, 917 F.3d 694, 707-08 (D.C. Cir. 2019)
(Williams, J., concurring in the result).
3 Id. at 707.
4 Id.; see also infra note 130.

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2
That black hole of futile claims has swallowed up
assertions of free speech.5 And free exercise.6 And due
process.7 And the right to counsel.8 And, as here, equal
protection.9
In each of those cases, the Supreme Court said that the
military can deprive its members of rights that the Constitution
may well guarantee to civilians.10 Like today’s majority, I
cherish those rights, and so I understand the impulse behind the
majority’s unprecedented intervention into military affairs.
But because the plaintiffs are service members not civilians,
and because we are judges not generals, I respectfully dissent.
I. Factual Background
For a decade, every presidential administration has
changed the U.S. military’s personnel policies regarding
gender dysphoria and transgender service members. Each new
policy was announced as an explicit rejection of the prior
approach.11
5 Parker v. Levy, 417 U.S. 733, 761 (1974).
6 Goldman v. Weinberger, 475 U.S. 503, 504 (1986); see also Austin
v. U.S. Navy Seals 1–26, 142 S. Ct. 1301 (2022).
7 Schlesinger v. Councilman, 420 U.S. 738, 742 (1975).
8 Middendorf v. Henry, 425 U.S. 25, 28 (1976).
9 Rostker v. Goldberg, 453 U.S. 57, 57 (1981).
10 See Parker, 417 U.S. at 759 (quoting United States v. Priest, 45
C.M.R. 338, 344 (1972)); Goldman, 475 U.S. at 506–07;
Councilman, 420 U.S. at 738, 757; Middendorf, 425 U.S. at 43;
Rostker, 453 U.S. at 57 n.6.
11 See, e.g., Doe 2 v. Shanahan, 917 F.3d 694, 697 (D.C. Cir. 2019)
(Wilkins, J., concurring) (“On June 30, 2016, Secretary Carter issued
Directive-Type Memorandum 16-005 (‘Carter Policy’), which

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3
Before 2016, military regulations “effectively banned all
transgender persons from either joining or remaining in the
military.”12 The military’s medical standards excluded all who
announced ‘that service in the United States military should be open
to all who can meet the rigorous standards for military service and
readiness,’ and set forth a policy permitting service by qualified
transgender individuals.”); id. at 698 (“The 2017 Presidential
Memorandum reversed the Carter Policy. President Trump
explained that ‘[s]hortly before President Obama left office, . . . his
Administration dismantled the Departments’ established framework
by permitting transgender individuals to serve openly in the military,
authorizing the use of the Departments’ resources to fund sex-
reassignment surgical procedures, and permitting accession of such
individuals after July 1, 2017 [later extended to January 1, 2018].”);
id. (“President Trump further declared: ‘In my judgment, the
previous Administration failed to identify a sufficient basis to
conclude that terminating the Departments’ longstanding policy and
practice would not hinder military effectiveness and lethality, disrupt
unit cohesion, or tax military resources, and there remain meaningful
concerns that further study is needed to ensure that continued
implementation of last year’s policy change would not have those
negative effects.”); Exec. Order No. 14004, Enabling All Qualified
Americans To Serve Their Country in Uniform, 86 Fed. Reg. 7471,
7471 (Jan. 28, 2021) (“the previous administration relied on a review
that resulted in a policy that set unnecessary barriers to military
service. It is my judgment that the Secretary of Defense’s 2016
conclusions remain valid . . . .”); Exec. Order No. 14183,
Prioritizing Military Excellence and Readiness, 90 Fed. Reg. 8757,
8757 (Feb. 3, 2025) (“Recently, however, the Armed Forces have
been afflicted with radical gender ideology to appease activists
unconcerned with the requirements of military service like physical
and mental health, selflessness, and unit cohesion.”).
12 Doe 2, 917 F.3d at 696 (Wilkins, J., concurring). Though the
policy officially changed in 2016, the military’s approach “began to
change in 2015” when “then-Secretary of Defense Ash Carter issued
a memorandum to the secretaries of the military departments

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4
“did not identify with the gender assigned to them at birth”
regardless of whether they had been diagnosed with gender
dysphoria, regardless of whether they had attempted to
“transition[] to their preferred gender,” and regardless of their
“willing[ness] to serve pursuant to the military standards
applicable to the sex assigned to them at birth.”13
That changed in 2016 when the military adopted a more
permissive set of policies.14 The new policy for people
entering the military allowed people with a history of gender
dysphoria to join and serve in their biological sex if they had
demonstrated 18 months of stability in their biological sex.15
The new retention policy allowed them to continue serving if
they met deployability standards.16 Those who had not
completed a gender transition were required to serve in their
biological sex; those who had completed a transition could
serve in their preferred gender.17
Then in 2018, the military returned to a more restrictive
approach.18 It adopted a policy similar to the pre-2016 policy,
directing” them not to treat service members’ “gender identity” as a
basis for choosing not to retain them. Id. at 697.
13 Id.
14 Id. (“allowing current transgender servicemembers to serve under
the same standards as cisgender (non-transgender) servicemembers
and prohibiting the discharge of otherwise qualified servicemembers
solely on the basis of their gender identity” (cleaned up)); id. at 698
(directive to DoD “to update its standards for persons entering the
military . . . by July 1, 2017”).
15 See id. at 710, 712 tbl. 1 (Williams, J., concurring in the result).
16 See id. at 710–11, 712 tbl. 1.
17 See id.
18 See id. at 699–700 (Wilkins, J., concurring).

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5
except that it grandfathered in service members who had relied
on the more permissive 2016 policy. So people could no longer
join the military if they had begun or completed a gender
transition.19 But service members who had already begun or
completed a transition before the policy went into effect
received a “reliance exception” and could continue serving.20
Shortly after President Biden took office in 2021, he
directed the military to return to a permissive policy regime “to
ensure that all transgender individuals who wish to serve in the
United States military and can meet the appropriate standards
shall be able to do so openly and free from discrimination.”21
The military formally adopted policies implementing that
directive shortly thereafter.22 These were materially similar to
the framework adopted in 2016, which allowed transgender
service members to serve openly while being “subject to the
same standards” as other service members.23
Then, days after President Trump took office in 2025, he
directed the military to adopt its most restrictive set of policies
since 2016.24 And once again, the military began to act on that
directive shortly thereafter.
19 See id. at 711, 712 tbl. 1 (Williams, J., concurring in the result).
20 See id.
21 Exec. Order No. 14004, 86 Fed. Reg. at 7471.
22 See U.S. Dep’t of Def., DoD Instruction 1300.28, In-Service
Transition for Transgender Service Members (Apr. 30, 2021).
23 See JA 418 (“Transgender Soldiers will be subject to the same
standards as any other Soldier of the same gender.”) (2016 policy);
JA 448 (“transgender Service members will be subject to the same
standards as all other Service members”) (2021 policy).
24 Exec. Order No. 14183, 90 Fed. Reg. at 8757 (“It is the policy of
the United States Government to establish high standards for troop

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6
On February 26, 2025, the military adopted a new policy
disqualifying from service “individuals who have a current
diagnosis or history of, or exhibit symptoms consistent with,
gender dysphoria,” on the ground that “the medical, surgical,
and mental health constraints” on these individuals do not meet
“the high mental and physical standards necessary for military
service.”25 Existing service members whom the policy
disqualified would “be processed for separation from military
readiness, lethality, cohesion, honesty, humility, uniformity, and
integrity. This policy is inconsistent with the medical, surgical, and
mental health constraints on individuals with gender dysphoria.”).
25 JA 48.
The majority agrees that the policy at issue was announced on
February 26, 2025, in the memorandum I cite here. See Majority Op.
at 5. But the majority frequently refers to an earlier memorandum,
issued on February 7, 2025, which ordered a pause on “all new
accessions for individuals with a history of gender dysphoria” and all
“medical procedures associated with affirming or facilitating a
gender transition for Service members.” SecDef Memo, Talbott v.
United States, No. 1:25-cv-240 (D.D.C. Mar. 4, 2025), Dkt. No. 33-
1. That memo stated that the military “must ensure it is building
‘One Force’ without subgroups defined by anything other than
ability or mission adherence” and expressed concern about “[e]fforts
to split our troops along lines of identity” that “weaken our Force and
make us vulnerable.” It then quoted a portion of Executive Order
14183: “‘Expressing a false “gender identity” divergent from an
individual’s sex cannot satisfy the rigorous standards necessary for
Military Service.’” Id.
Aside from the pause on medical procedures, the memo did not
include guidance regarding current service members. Instead, it
stated that “[i]ndividuals with gender dysphoria have volunteered to
serve our country and will be treated with dignity and respect” and
authorized the Under Secretary of Defense for Personnel and
Readiness to issue guidance for Service members “to implement this
direction.” Id.

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7
service” with an “honorable” discharge unless “the Service
member’s record otherwise warrant[ed].”26 A disqualified
member may seek a waiver “on a case-by-case basis” upon a
showing of “a compelling Government interest . . . that directly
supports warfighting capabilities,” along with 36 months of
mental stability, no prior attempts to transition to another sex,
and willingness to adhere to the military’s sex-specific
standards.27
An action memo issued the same day elaborated on the
policy’s rationale. Military service, the memo emphasized,
requires personnel who are “mentally and physically fit for
duty” and able to “deploy, fight, and win, including in austere
conditions and without the benefit of routine medical treatment
or special provisions.”28 The memo cited a 2021 Department
of Defense study finding that “nearly 40% of Service members
with gender dysphoria . . . were non-deployable over a 24
month period”29 and a 2025 medical-literature review reporting
significantly elevated rates of suicidal ideation, suicide
attempts, and psychiatric diagnoses among transgender
people.30 Continued service by people with gender dysphoria,
the memo concluded, was incompatible with the military’s
“rigorous standards and national security imperative to deliver
a ready, deployable force.”31
The plaintiffs filed this suit challenging the President’s
executive order the day after it was issued and moved for
26 JA 50.
27 JA 55.
28 JA 62.
29 JA 64.
30 JA 64–65.
31 JA 65.

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8
injunctive relief a week later.32 Soon after the military adopted
the implementing policy, the plaintiffs amended their
complaint and renewed their motion for injunctive relief,
asking the court to enjoin enforcement of the policy.33
The district court decided that this latest change in the
decade-long back-and-forth of military policy is likely
unconstitutional.34 The court preliminarily enjoined the
military from enforcing its new policies.35 To remove any
doubt, the district court specified that its order effectively
requires the military “to maintain the status quo” established
by the previous administration.36
Today’s majority now concludes that a narrow set of
disqualifications in the new military policy are “unexplained
and unreasoned” and that some of the reasons the military
provided for the policy reveal animus.37 The majority finds
those problems with some parts of the policy sufficient to
override the longstanding tradition of deference to military
decisionmaking and to affirm a preliminary injunction of the
32 JA 21.
33 Motion for Preliminary Injunction (Renewed), Talbott v. United
States, No. 1:25-cv-240 (D.D.C. Mar. 7, 2025), Dkt. No. 72.
34 Talbott v. United States, 775 F. Supp. 3d 283, 316 (D.D.C. 2025)
(“Plaintiffs are likely to succeed on their claim that the Military Ban
is subject to intermediate scrutiny because it classifies based on sex
and transgender status, two distinct quasi-suspect classes. Plaintiffs
are also likely to succeed on their claim that the Military Ban fails
intermediate scrutiny.”).
35 JA 1207–09.
36 JA 1207.
37 Majority Op. at 42.

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9
entire policy as it relates to retention of the plaintiff service
members.38
II. Legal Background
The Constitution entrusts the political branches, not courts,
with judgments about military readiness and effectiveness.
Indeed, “[i]t would be difficult to think of a clearer example of
the type of governmental action that was intended by the
Constitution to be left to the political branches,” which are
“directly responsible — as the Judicial Branch is not — to the
electoral process.”39
Constitutional authority aside, prudence points in the same
direction: “it is difficult to conceive of an area of governmental
activity in which the courts have less competence.”40
As a result, “courts traditionally have been reluctant to
intrude upon the authority of the Executive in military and
national security affairs” — that is, “unless Congress
specifically has provided otherwise.”41 The judiciary’s lack of
institutional competence explains why judges should defer to
the political branches in matters bearing on military-wide force
38 Because Judge Wilkins finds that the balance of equities tips in
favor of the military with respect to the plaintiffs seeking to join the
military, he would vacate the district court’s injunction of the policy
as it relates to accession. Wilkins Op. at 47–50. I concur with that
conclusion, though I would ground that decision in deference to
military decisionmaking on both likelihood of success on the merits
and the balance of equities.
39 Gilligan v. Morgan, 413 U.S. 1, 10 (1973).
40 Id.
41 Department of Navy v. Egan, 484 U.S. 518, 530 (1988).

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composition, training, discipline, and readiness; constitutional
structure explains why we must.
A. The Constitution
The Constitution allocates military authority between
Congress and the President. Article I empowers Congress to
“raise and support Armies,” to “provide and maintain a Navy,”
and to “make Rules for the Government and Regulation of the
land and naval Forces.”42 Article II vests the President with
“[t]he executive Power” and confirms that he is “Commander
in Chief” of the armed forces.43
These provisions establish the core structural principle of
military governance: The two political branches govern the
military.
In Federalist No. 23, Alexander Hamilton defended this
allocation as “essential to the common defense.”44 Because
“[t]he circumstances that endanger the safety of nations are
infinite,” the military powers vested in the political branches
“ought to exist without limitation.”45 Whether to create a
federal defense power at all was, he conceded, “open to
discussion.”46 But once that question was answered, “there can
be no limitation of that authority . . . in any matter essential to
42 U.S. Const. art. I, § 8, cls. 12–14.
43 Id. art. II, § 1, cl. 1; id. § 2, cl. 1.
44 The Federalist No. 23, at 153 (Alexander Hamilton) (Clinton
Rossiter ed., 1961).
45 Id.
46 Id.

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11
the formation, direction, or support of the NATIONAL
FORCES.”47
B. Modern Caselaw
For more than seventy years, the Supreme Court and the
D.C. Circuit have looked to that constitutional structure and
come to the same conclusion: Courts must not second-guess
military judgments about how the armed forces are structured,
trained, and operated. Instead, they “must give great
deference” to the judgment of the political branches, which
have been entrusted by the Constitution “with the care of the
common defense.”48
That principle does not just appear in a single test or a
single line of cases. It appears everywhere. It’s the reason
courts resist interlocutory intervention in military commissions
and courts-martial.49 It’s the reason courts do not issue
preliminary injunctions that would interfere with military
training or operations.50 It’s the reason courts sometimes
47 Id. at 154.
48 Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (first
quotation); The Federalist No. 23, at 153 (second quotation).
49 See, e.g., Schlesinger v. Councilman, 420 U.S. 738, 740 (1975)
(“Although the District Court may have had subject-matter
jurisdiction, we think that the balance of factors governing exercise
of equitable jurisdiction by federal courts normally weighs against
intervention, by injunction or otherwise, in pending court-martial
proceedings.”); Middendorf v. Henry, 425 U.S. 25, 43 (1976) (“we
must give particular deference to the determination of Congress,
made under its authority to regulate the land and naval forces, U.S.
Const., Art. I, § 8, that counsel should not be provided in summary
courts-martial”).
50 See, e.g., Winter v. Natural Resources Defense Council, Inc., 555
U.S. 7, 26 (2008) (“forcing the Navy to deploy an inadequately

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12
refuse to review military decisions at all.51 And on the
occasions courts do reach the merits, it’s the reason they apply
an extraordinarily deferential standard of review for
constitutional claims.52
The courts’ foundational cases about the military’s
structure and operation establish three related points, each
demanding from judges one word — deference:
1. Judgments about the military’s structure and operation
belong to the political branches, not to the courts.
2. The military is a distinct constitutional system,
separate from civilian society. Its rules are necessarily
different than those of civilian society. So courts do
not apply the same standards to military rules as they
do to the rules of civilian society.
trained antisubmarine force jeopardizes the safety of the fleet”); id.
at 27 (“The lower courts failed properly to defer to senior Navy
officers’ specific, predictive judgments about how the preliminary
injunction would reduce the effectiveness of the Navy’s SOCAL
training exercises.”).
51 See, e.g., Orloff v. Willoughby, 345 U.S. 83, 94–95 (1953) (“the
exercise of such jurisdiction as is here urged would be a disruptive
force as to affairs peculiarly within the jurisdiction of the military
authorities”); Gilligan, 413 U.S. at 7 (holding that the controversy
was nonjusticiable because “[t]he relief sought . . . would . . .
embrace critical areas of responsibility vested by the Constitution in
the Legislative and Executive Branches of the Government”).
52 See, e.g., Goldman, 475 U.S. at 507 (“Our review of military
regulations challenged on First Amendment grounds is far more
deferential than constitutional review of similar laws or regulations
designed for civilian society.”).

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13
3. Because courts defer to the political branches’ military
judgments, and because the military is a distinct
constitutional system, even military judgments subject
to constitutional challenges receive “great deference.”
1. Orloff (1953) and Gilligan (1973)
The doctrine of military deference begins with a simple
proposition: Judgments about the military belong to the
political branches, not to the courts.
In Orloff v. Willoughby, the Supreme Court made the point
directly. A doctor inducted into the Army asked the Court to
intervene because the military had allegedly discriminated
against him in his duty assignment based on his refusal to say
if he had been a member of the Communist Party.53 The Court
did not treat that allegation as a basis for judicial intervention.
It acknowledged 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.”54 Nevertheless, the Court refused to
intervene because “judges are not given the task of running the
Army.”55
To police the line between the rights of civilians and the
rights of soldiers, Orloff said courts may “determine whether
one has been lawfully inducted and is therefore within the
jurisdiction of the Army and subject to its orders.” But once
that inquiry is over, the Court suggested it has little further role:
“Nothing appears to convince us that [Orloff] is held in the
53 Orloff, 345 U.S. at 84, 87, 90.
54 Id. at 93.
55 Id.

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14
Army unlawfully, and, that being the case, we cannot go into
the discriminatory character of his orders.”56
In other words, Orloff stopped at the Army’s gates. Why?
Because crossing that threshold to review Orloff’s assignment
would make the judiciary “a disruptive force as to affairs
peculiarly within the jurisdiction of the military authorities.”57
And that disruption would imperil ordered liberty itself:
“Orderly government requires that the judiciary be as
scrupulous not to interfere with legitimate Army matters as the
Army must be scrupulous not to intervene in judicial
matters.”58
Two decades later, the petitioners in Gilligan v. Morgan
asked the Supreme Court to review the Ohio National Guard’s
training standards in the wake of the Kent State shootings. The
Court once again declined jurisdiction. It explained:
The complex, subtle, and professional decisions as to
the composition, training, equipping, and control of a
military force are essentially professional military
judgments, subject always to civilian control of the
Legislative and Executive Branches. The ultimate
responsibility for these decisions is appropriately
vested in branches of the government which are
periodically subject to electoral accountability.59
56 Id. at 94.
57 Id. at 95.
58 Id. at 94.
59 Gilligan, 413 U.S. at 10.

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Those 55 words answer nearly every question we should
ask today: 1) What are “professional military judgments”?
2) Who controls them? 3) When? 4) Why?
What are “professional military judgments”?
Whatever else they may include, they include system-wide
“decisions as to the composition, training, equipping, and
control of a military force.” Such decisions are
“essentially” — that is, by their very nature — “professional
military judgments.”60
Who controls those decisions? “[T]he Legislative and
Executive Branches.”
When are those decisions subject to the political
branches’ control? Emphatically: “always.”
Why those branches and not the judiciary? At least in
part because the political branches “are periodically subject to
electoral accountability.”
Taken together, Orloff and Gilligan establish the
foundation for modern military deference. Courts do not step
into the middle of military decisionmaking. They do not revise
60 Elsewhere in Gilligan, the Court more fully elaborated on the kinds
of judgments at issue: “Trained professionals, subject to the day-to-
day control of the responsible civilian authorities, necessarily must
make comparative judgments on the merits as to evolving methods
of training, equipping, and controlling military forces with
respect to their duties under the Constitution.” Id. at 8 (emphases
added). A professional military judgment, as the Court used that
phrase, thus appears to involve military expertise (“professional”),
military subject matter (“training, equipping, and controlling military
forces”), and comparative assessment of alternative approaches
(“judgment”), all subject to responsible civilian control.

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16
military assignments — even if the assignments are allegedly
unfair or discriminatory. They do not supervise military
training — even if that training has been questionable. They
generally do not reweigh judgments about how the military
should be organized and prepared. That is because courts are
in a poor position to second-guess those decisions, even when
they may look unfair or unreasoned from the bench. They lack
the constitutional power to intrude into a system left to the
political branches, and they lack the institutional competence
to presume they should know better.
The basic rule — courts do not run the military — carries
through the rest of the case law.
2. Parker (1974), Councilman (1975), and
Middendorf (1976)
The cases that followed Orloff and Gilligan explained
something deeper about the doctrine: Courts defer to military
decisions because the military is a separate society altogether.
It has different needs than civilian society. As a result, it has
different rules than civilian society. The rights that prevail in
civilian courts for civilian society do not operate in the same
way for the military.61
The Supreme Court made that point plainly in Parker v.
Levy when it rejected a First Amendment challenge to rules in
the Uniform Code of Military Justice, explaining that “the
military is, by necessity, a specialized society separate from
civilian society” that has “developed laws and traditions of its
61 These build on an observation originally made in Orloff: “The
military constitutes a specialized community governed by a separate
discipline from that of the civilian.” 345 U.S. at 94.

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17
own during its long history.”62 Those differences “result from”
the military’s special purpose: “to fight or be ready to fight
wars should the occasion arise.”63 And they result in “a
different application of [constitutional] protections” to military
regulations — an application that “may render permissible
within the military that which would be constitutionally
impermissible outside it.”64
A year after Parker, the Supreme Court again invoked the
military’s status as a specialized society, this time to caution
lower courts against using their equitable powers to short-
circuit military processes. A district court had permanently
enjoined the military from proceeding with a court-martial; the
Court in Schlesinger v. Councilman reversed.65
Councilman concluded that the military’s status as a
specialized society “counsels strongly against the exercise of
equity power even where . . . intervention might be
appropriate.”66 That restraint reflects the “unique military
exigencies” that gave rise to the military’s distinct body of law
and that are “as powerful now as in the past.”67 The upshot:
When courts must decide whether to use equitable authority to
intervene in military decisions, the scales tip strongly against
62 417 U.S. 733, 743 (1974).
63 Id. (quoting United States ex rel. Toth v. Quarles, 350 U.S. 11, 17
(1955).
64 Id. at 758.
65 420 U.S. 738, 739–40 (1975).
66 Id. at 757.
67 Id.

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18
intervention from the start — even where “intervention might
[otherwise] be appropriate.”68
The next year, in Middendorf v. Henry, Justice Powell
cited the military’s status as a specialized society once more,
this time to explain why the right to counsel should not apply
to summary courts-martial as it would in ordinary civilian
criminal proceedings. Though “one’s constitutional rights are
not surrendered upon entering the Armed Services,” the rights
must be applied “in light of the ‘unique military exigencies’
that necessarily govern many aspects of military service.”69
The rule established in Orloff and Gilligan — that courts
do not run the military — thus grew into a full distinction
between military society and civilian society, military rules and
civilian rules. When courts review challenges to rules affecting
the military, they must not begin as they would if they were
considering cases concerning civilian society and civilian rules.
Instead, they must consider the “unique military exigencies”
that may require a different approach from the start.
3. Parker (again) (1974), Rostker (1981), Goldman (1986),
Solorio (1987), Winter (2008), U.S. Navy Seals 1–26 (2022),
Kreis (D.C. Cir. 1989), and Singh (D.C. Cir. 2022)
Though service members leave the civilian ranks to
become part of the military, they do not leave behind their
citizenship and its rights. So it remains for us to consider how
courts should handle claims that military rules violate
individuals’ constitutional rights. The cases I discussed above
have already suggested an answer. The cases I discuss below
68 Id.
69 425 U.S. at 50 (Powell, J., concurring) (citing Parker, 417 U.S. at
758).

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19
will make the point plain: Even for constitutional claims, courts
must give “great deference” to the political branches.
Return to Parker for what it teaches about constitutional
challenges. Military members “are not excluded from the
protection[s] granted by the” Constitution70 — they are, after
all, still citizens under the Constitution’s protection. But “the
different character of the military community and of the
military mission requires a different application of those
protections.”71 That’s because “[t]he armed forces depend on
a command structure that at times must commit men to combat,
not only hazarding their lives but ultimately involving the
security of the Nation itself.”72 If anything might “undermine
the effectiveness of response to command,” it is
“constitutionally unprotected” within the military, even if it
would be “protected in the civil population.”73 As a result,
courts permit “greater breadth” and “greater flexibility” to
military rulemaking than they do for rulemaking in civilian
society.74 And they give less weight to challenges concerning
individual rights because “within the military community there
is simply not the same autonomy as there is in the larger
civilian community.”75
Rostker v. Goldberg afforded the same latitude to rules that
implicate equal-protection rights, holding that Congress may
authorize the registration of men, but not women, for the
70 Parker, 417 U.S. at 758.
71 Id.
72 Id. at 759 (quoting United States v. Priest, 45 C.M.R. 338, 344
(1972)).
73 Id. (quoting Priest, 45 C.M.R. at 344).
74 Id. at 756.
75 Id. at 751.

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20
draft.76 In the process, the Supreme Court clarified that
military deference applies not just to final judgments but to
evaluations of evidence, holding that the district court “was
quite wrong in undertaking an independent evaluation of th[e]
evidence, rather than adopting an appropriately deferential
examination of Congress’ evaluation of that evidence.”77
And then in Goldman v. Weinberger, the Supreme Court
made the governing principle even more explicit: “courts must
give great deference to the professional judgment of military
authorities concerning the relative importance of a particular
military interest.”78
Goldman considered whether an Air Force regulation
preventing an Orthodox Jew and ordained rabbi from wearing
his yarmulke while in uniform violated the First Amendment.
The Court deferred to the military’s judgment. When military
officials make a decision based on a “perceived need for
uniformity” — or presumably for any other aspect of force
readiness — “they are under no constitutional mandate to
abandon their considered professional judgment.”79
How far does the “great deference” afforded to military
judgments extend?80 At least this far: The Constitution “does
not require the military to accommodate” a practice as
seemingly innocuous as wearing a yarmulke if the military
76 453 U.S. 57, 66 (1981) (quoting Parker for “breadth” and
“flexibility”); id. at 78–79 (the authorized registration of only men
“does not violate the Due Process Clause” of the Fifth Amendment).
77 Id. at 83.
78 475 U.S. at 507.
79 Id. at 509–10.
80 Id. at 507.

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21
thinks it “would detract from the uniformity sought by the dress
regulations.”81
What evidence had the Air Force provided that such a
small accommodation would imperil troop discipline, much
less national security? According to Goldman: none. He said
the Air Force “failed to prove that a specific exception for his
practice of wearing an unobtrusive yarmulke would threaten
discipline”; that the Air Force’s position was “mere ipse dixit”;
that there was “no support from actual experience or a scientific
study in the record”; and that expert testimony showed
religious exceptions would improve morale.82
The Supreme Court found all of this “quite beside the
point.”83 It concluded that “the military’s perceived need for
uniformity” was sufficient for the Air Force to “draw[] the
line” that it drew.84 The Air Force considered “the necessary
habits of discipline and unity” to be “as vital during peacetime
as during war because its personnel must be ready to provide
an effective defense on a moment’s notice.”85 And that was
enough.
Might you question just how detrimental to “uniformity”
it would be to allow a rabbi to wear a yarmulke — especially
given that the military provided no evidence to the contrary? I
would. And might you believe that the military should make
81 Id. at 509–10.
82 Id. at 509.
83 Id.; cf. Talbott v. United States, 775 F. Supp. 3d 283, 292, 299,
301–04, 307–08, 325–26 (D.D.C. 2025) (relying on the three things
Goldman said were “quite beside the point” — insufficient
exemptions, an absence of evidence, and no expert testimony).
84 Goldman, 475 U.S. at 510.
85 Id. at 508.

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22
such an accommodation for someone whose faith is so
important to him? I do. But those are my views as a judge
sitting far away from a military base.86
The aftermath of Goldman shows the proper path for
change if citizens and their representatives find a military
decision objectionable. The very next year, Congress passed a
law allowing service members to “wear an item of religious
apparel while wearing the uniform” so long as the item met
certain standards.87 The lesson: Objectionable military rules
can be changed, and quickly. Our constitutional order makes
that possible. But it does not give that role to the judiciary.
The cases since Goldman have continued to reinforce its
“great deference” standard.
In Solorio, the Supreme Court deferred to Congress’s
choices about the “scope of court-martial jurisdiction over
offenses committed by servicemen.”88 That was because
Congress, and not the courts, is entrusted with “the delicate task
of balancing the rights of servicemen against the needs of the
military.”89
In Winter, the Supreme Court concluded that injunctive
relief against the military was improper because “the balance
of equities and consideration of the overall public interest . . .
tip strongly in favor of the Navy” when a judicial decision
protecting marine mammals could “forc[e] the Navy to deploy
86 Cf. A Few Good Men (Columbia Pictures, 1992) (“We have
softball games and marching bands. They work at a place where you
have to wear camouflage or you might get shot.”).
87 10 U.S.C. § 774.
88 Solorio v. United States, 483 U.S. 435, 440 (1987).
89 Id. at 447.

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23
an inadequately trained . . . force.”90 The Court relied
specifically on Goldman’s “great deference” standard, and
provided yet another reason for that standard: “neither the
Members of this Court nor most federal judges begin the day
with briefings that may describe new and serious threats to our
Nation and its people.”91 Courts should therefore “defer to”
military officials’ “specific, predictive judgments” about how
injunctive relief could impede military effectiveness.92
Most recently, in Austin v. U.S. Navy Seals 1–26, members
of the Naval Special Warfare community challenged the
Navy’s denial of religious exemptions from its COVID-19
vaccination mandate under the Religious Freedom Restoration
Act and the Free Exercise Clause.93 The Supreme Court
partially stayed a preliminary injunction that had barred the
Navy from taking action against them based on their
unvaccinated status, allowing the Navy to consider vaccination
status in “deployment, assignment, and other operational
decisions.”94 Justice Kavanaugh — no foe of religious
liberty95 — concurred, explaining that the district court had “in
90 Winter, 555 U.S. at 26.
91 Id. at 24 (quoting Boumediene v. Bush, 553 U.S. 723, 797 (2008)).
92 Id. at 27.
93 Austin v. U. S. Navy Seals 1-26, 142 S. Ct. 1301 (2022).
94 Id. at 1301.
95 See American Legion v. American Humanist Association, 588 U.S.
29 (2019); South Bay United Pentecostal Church v. Newsom, 590
U.S. 965 (2020) (South Bay I) (Kavanaugh, J., dissenting); Espinoza
v. Montana Department of Revenue, 591 U.S. 464 (2020); Our Lady
of Guadalupe School v. Morrissey-Berru, 591 U.S. 732 (2020); Little
Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591
U.S. 657 (2020); Calvary Chapel Dayton Valley v. Sisolak, 140 S.
Ct. 2603 (2020) (joining Alito, J., dissenting); Roman Catholic
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020); South Bay

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24
effect inserted itself into the Navy’s chain of command,
overriding military commanders’ professional military
judgments,” even though courts “‘should indulge the widest
latitude’ to sustain the President’s ‘function to command the
instruments of national force.’”96
The D.C. Circuit’s decisions say nothing to the contrary.
Kreis v. Secretary of Air Force held that military personnel
decisions are nonjusticiable when they would require the court
“to second-guess” military decisions “about how best to
allocate military personnel in order to serve the security needs
of the Nation” — a question “[t]his court is not competent” to
answer.97
United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021) (South
Bay II); Harvest Rock Church, Inc. v. Newsom, 141 S. Ct. 1289
(2021); Gateway City Church v. Newsom, 141 S. Ct. 1460 (2021);
Tandon v. Newsom, 593 U.S. 61 (2021); Fulton v. City of
Philadelphia, 141 S. Ct. 1868 (2021); Ramirez v. Collier, 142 S. Ct.
1264 (2022); Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022);
Carson v. Makin, 142 S. Ct. 1987 (2022); Kennedy v. Bremerton
School District, 142 S. Ct. 2407 (2022); Groff v. DeJoy, 143 S. Ct.
2279 (2023); Catholic Charities Bureau, Inc. v. Wisconsin Labor &
Industry Review Commission, 145 S. Ct. 1583 (2025); Mahmoud v.
Taylor, 145 S. Ct. 2332 (2025).
96 Austin, 142 S. Ct. at 1302 (Kavanaugh, J., concurring) (quoting
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 645 (1952)
(Jackson, J., concurring)).
97 Kreis v. Secretary of Air Force, 866 F.2d 1508, 1511 (D.C. Cir.
1989).
The court separately concluded that decisions of the Air Force
Board for the Correction of Military Records are reviewable under
the Administrative Procedure Act, “albeit by an unusually deferential
application of the ‘arbitrary or capricious’ standard.” Id. at 1514.
“At most,” the court observed, “the consequence of such review will

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This court’s opinion in Singh v. Berger likewise confirms
that we must defer to professional military judgments “unless
Congress specifically has provided otherwise.”98 Singh (which
was not a decision about constitutional rights) held that a
military policy violated the Religious Freedom Restoration Act
(which is Congress’s express instruction that even military
burdens on religious exercise must satisfy strict scrutiny). 99 So
even though Singh informs our understanding of Congress’
legislative judgment, it offers no basis for replacing
professional military judgment with a court’s judicial
judgment.
C. The Constitution + Caselaw = “Great Deference”
Constitutional structure and binding precedent yield a
consistent rule: Absent a contrary statutory command, courts
reviewing a constitutional challenge to a military policy must
give “great deference” to the political branches’ professional
military judgments. Those judgments include military-wide
decisions about the composition, training, equipping, and
control of the armed forces, as well as assessments of readiness,
discipline, deployability, cohesion, uniformity, command
effectiveness, and mission accomplishment.
If a challenged system-wide policy reflects a professional
military judgment about a perceived military need, a court may
be only to require the Secretary to explain more fully the process by
which he reached his assessment.” Id. That part of the court’s
decision is inapposite in this case, which does not consider a
corrections board decision or whether any decision is reviewable
under the APA and which has consequences far more than requiring
the Secretary to explain his decisionmaking process.
98 Egan, 484 U.S. at 530.
99 Singh v. Berger, 56 F.4th 88, 97 (D.C. Cir. 2022).

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26
not reweigh the evidence,100 credit contrary expert views over
military judgment,101 require proof that the plaintiff’s proposed
exception to a rule would itself impair military effectiveness,102
or substitute its own view of the policy’s desirability.103 Judges
100 But see Talbott, 775 F. Supp. 3d at 292 (“Plaintiffs’ service
records alone are Exhibit A for the proposition that transgender
persons can have the warrior ethos, physical and mental health,
selflessness, honor, integrity, and discipline to ensure military
excellence.”); id. at 304 (“The Center also conducted a medical
literature review as part of its work that the Action Memo ignores
altogether.”); id. at 305 (“[T]he Medical Literature Review did not
survey studies on transgender persons in military service: i.e.,
individuals already found to be physically and mentally fit. . . . So it
can shed little light on how transgender persons fare in the
military.”).
101 But see id. at 292 (“Plaintiffs have also introduced declarations
from the military leaders responsible for integrating transgender
persons into open military service. Each declarant attests that our
military has not fallen into an ‘existential’ crisis since transgender
persons began serving openly in 2021. . . . To the contrary, they each
testify that recruiting, unit cohesion, and military readiness have
improved since 2021.”); id. at 303 (“No panel of experts — or any
other kind — informed the Hegseth Policy.”).
102 But see id. at 324 (“Defendants do not explain why addressing
a treatable condition requires excluding all persons who have ever
had — or even exhibited symptoms of — it. Nor do they explain
why the constraint already in place, 18 months of stability, is
insufficient.”); id. at 333 (“The Military Ban does not cite, and
Defendants have not provided, any studies or declarations that
explain why maintaining the status quo pending litigation would
unfairly burden the military.”).
103 But see id. at 293 (“The President and Defendants could have
crafted a policy that balances the Nation’s need for a prepared
military and Americans’ right to equal protection. They still can.
The Military Ban, however, is not that policy.”).

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therefore have only one option when we determine that the
political branches have made a system-wide “professional
military judgment” based on a perceived military need: We
must defer to the military’s judgment.
A “professional military judgment” is not identified by
how much or how little consideration military professionals
devoted to making the decision. Nor is a “professional military
judgment” identified by how well-supported a court believes
the decision to be. The cases discussed above applied no tests
of that sort. Rather, a “professional military judgment”
depends on the decisionmaker and the subject matter. It is a
“professional judgment of military authorities concerning the
relative importance of a particular military interest.”104 That
is why Gilligan categorized “decisions as to the composition,
training, equipping, and control of a military force” as
“essentially professional military judgments.”105 Only the
political branches, which have been entrusted with such
decisions, should make them.
That is a “great” deferential standard, indeed — one that is
fundamental to our nation’s constitutional structure.
104 Goldman, 475 U.S. at 507 (emphasis added).
105 413 U.S. at 10.

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The Constitution demands this deference not to disparage
any service members106 or deprive anyone of any rights.107
And when we discount that deference, we endanger “every
current servicemember”108 and make it more difficult for the
military to defend the rights it has protected from Fordow and
Fallujah to the Philippine Sea, and from Little Round Top to
Little Rock.109
106 Cf. Talbott, 775 F. Supp. 3d at 334 (“The Court extends its
appreciation to every current servicemember and veteran. Thank
you.”).
107 Cf. id. at 293 (“The Court’s opinion is long, but its premise is
simple. In the self-evident truth that ‘all people are created equal,’
all means all.”) (cleaned up); The Declaration of Independence (U.S.
1776) (“We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the pursuit
of Happiness.”) (not cleaned up).
In changing “all men” to “all people,” the district court rewrote the
Declaration of Independence to signal the court’s belief that both
men and women are equal. I share that belief, but unlike the district
court, I don’t read the Declaration to say otherwise. “Within the
context of the times it is clear that ‘all men’ was a euphemism for
‘humanity,’ and thus those people, such as Elizabeth Cady Stanton,
Abraham Lincoln, and Martin Luther King, who used the
Declaration of Independence to demand equality for African
Americans and women seized the historical as well as the moral high
ground.” All Men Are Created Equal, Library of Congress,
https://perma.cc/HN7N-M9GE.
Admittedly, reasonable people disagree about whether those who
wrote “all men” meant “all people” — in other words, whether “the
architects of our Republic” were “signing a promissory note to which
every American was to fall heir,” even if the promise was unfulfilled
in their time. Martin Luther King, Jr., “I Have a Dream” Speech
(Aug. 28, 1963). The “contested meaning” of the Declaration’s most

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III. Analysis
The military’s transgender policy is constitutional. The
plaintiffs’ arguments against it lack legal support. So do the
majority’s.
A. The Constitution Does Not Prohibit the Military’s
Policy
Sometimes a case will present an open question informed
only by confusing and contradictory precedents. This is not
one of those cases. Rather, as described above, an unbroken
line of unambiguous authorities directs us to uphold a military
policy (1) when it does not conflict with a statutory command,
(2) when it reflects a “professional military judgment[],” and
(3) when it addresses a perceived, military-wide need
famous line “has structured much of America’s constitutional
conversation ever since.” Akhil Reed Amar, The Words That Made
Us 123 (2021). But I’ll cast my lot with Lincoln. “As Lincoln
recognized, the promise of equality extended to all
people — including immigrants and blacks whose ancestors had
taken no part in the original founding. Thus, in Lincoln’s view, ‘“the
natural rights enumerated in the Declaration of Independence”’
extended to blacks as his ‘“equal,”’ and ‘“the equal of every living
man.”’” Students for Fair Admissions v. Harvard, 143 S. Ct. 2141,
2194 (2023) (Thomas, J., concurring) (citing, after the first sentence,
Speech at Chicago, Ill. (July 10, 1858), in 2 The Collected Works of
Abraham Lincoln 488–489, 499 (R. Basler ed. 1953); citing, after the
second sentence, The Lincoln-Douglas Debates 285 (H. Holzer ed.
1993)).
108 Talbott, 775 F. Supp. 3d at 334.
109 Cf. United States v. Wilcox, 66 M.J. 442, 460 (C.A.A.F. 2008)
(“President Eisenhower deployed the 101st Airborne to Little Rock,
Arkansas, to help integrate the public schools following Brown v.
Board of Education.”).

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regarding the “composition, training, equipping, [or] control”
of the armed forces.110
The policy challenged today meets those criteria.
First, no statute prohibits the military from implementing
the policy, and the plaintiffs do not contend otherwise. The
district court applied the reasoning of Bostock v. Clayton
County, a case arising under Title VII of the Civil Rights Act
of 1964.111 But the district court did not — and could
not — hold that Bostock directly controls here, given that
“Title VII does not apply to uniformed members of the armed
forces.”112
Second, the policy reflects a professional military
judgment. It was announced by the military authorities
110 Gilligan v. Morgan, 413 U.S. 1, 10 (1973).
111 Talbott v. United States, 775 F. Supp. 3d 283, 316–17 (D.D.C.
2025) (applying the logic of Bostock v. Clayton County, 590 U.S.
644 (2020)).
112 Jackson v. Modly, 949 F.3d 763, 775 (D.C. Cir. 2020).
In the case before us, military officials and not Congress set the
new qualifications for accession and retention. That is because
Congress has expressly delegated to them the broad authority to do
so. See 10 U.S.C. § 113(b) (granting the Secretary of Defense
“authority, direction, and control over the Department of Defense”);
§§ 7013(b), 8013(b), 9013(b) (authorizing service Secretaries to
conduct “all affairs” of their departments, including recruiting,
organizing, training, and mobilizing the force); see also id. §§ 504,
505, 532, 1169, 12102, 12201. Congress may delegate this authority
to the Executive Branch. Cf. Loving v. United States, 517 U.S. 748,
772 (1996) (“the same limitations on delegation do not apply where
the entity exercising the delegated authority itself possesses
independent authority over the subject matter” (cleaned up)).

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authorized to make such decisions.113 And its subject matter
was indisputably about a particular military interest:
qualifications for military service.114 Such “decisions as to the
composition . . . of a military force” are “essentially
professional military judgments.”115
Third, the policy involves “the professional judgment of
military authorities concerning the relative importance of a
particular military interest.”116 It explains how that judgment
is shaped by “unique military exigencies.”117 And it even
provides evidence to support that connection between the
policy and those exigencies.
The primary interest that informs the military’s policy is
the need for deployable troops. The action memo
accompanying the policy cites evidence that nearly 40% of
service members with gender dysphoria in a studied cohort
“were non-deployable over a 24 month period.”118 It also cites
the demand for ongoing treatment, the potential for interruption
of care in deployed environments, and the incompatibility of
certain medical requirements with austere conditions.119 And
113 See JA 48–49 (memorandum from Darin S. Selnick, acting Under
Secretary of Defense for Personnel and Readiness, as directed by the
Secretary of Defense).
114 See id. (describing “the high mental and physical standards
necessary for military service”).
115 Gilligan, 413 U.S. at 10.
116 Goldman v. Weinberger, 475 U.S. 503, 507 (1986).
117 Schlesinger v. Councilman, 420 U.S. 738, 757 (1975).
118 JA 64.
119 JA 62 (requiring “high mental and physical health standards to
ensure our military can deploy, fight, and win, including in austere
conditions and without the benefit of routine medical treatment or
special provisions”); see also JA 105 (“foreign militaries that allow

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it cites a finding that “the suicide attempt rate is estimated to
be 13 times higher among transgender individuals compared to
their cisgender counterparts.”120
Those kinds of military judgments demand deference
because they are predictive.121 And because they are
“complex, subtle, and professional.”122 And because they
involve the weighing of risks in a way that has no obvious
judicial benchmark.123
Even if that were not enough — and it is — there’s more.
The memorandum relies on prior military policies, expert-
panel findings, internal reviews, and medical literature. For
example, it cites a 2018 Department assessment that concluded
“substantial risks” arise when people “with a history or
service by personnel with gender dysphoria have found that it is
sometimes necessary to restrict the deployment of transitioning
individuals, including those receiving hormone therapy and surgery,
to austere environments where their healthcare needs cannot be
met”).
120 JA 64 (citing findings that “55% of transgender individuals
experienced suicidal ideation and 29% attempted suicide in their
lifetime, . . . [and] the suicide attempt rate is estimated to be 13 times
higher among transgender individuals compared to their cisgender
counterparts”); see also JA 92 (“The Department is concerned that
the stresses of military life, including basic training, frequent moves,
deployment to war zones and austere environments, and the
relentless physical demands, will be additional contributors to
suicide behavior in people with gender dysphoria. In fact, there is
recent evidence that military service can be a contributor to suicidal
thoughts.”).
121 See Winter v. Natural Resources Defense Council, Inc., 555 U.S.
7, 27 (2008).
122 Gilligan, 413 U.S. at 10.
123 Goldman, 475 U.S. at 507.

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diagnosis of gender dysphoria” join and remain in the
military.124 It also cites a 2021 Department of Defense review
that found higher rates of disability evaluation and substantial
non-deployability.125 In addition, it cites a 2025 literature
review that identified elevated mental-health risks and limits in
the strength of available evidence.126 And it considers cost data
reflecting tens of millions of dollars in treatment
expenditures.127 The policy thus reflects a synthesis of
military, medical, and operational judgments of the sort courts
have consistently declined to reweigh. One might disagree
with the military’s conclusions, but it’s hard to look at the
reasons and evidence the military provided in its action memo
and say that the military acted “unthinkingly” or “reflexively
and not for any considered reason.”128
124 JA 64.
125 Id.
126 JA 64–65.
127 JA 65.
128 See Rostker v. Goldberg, 453 U.S. 57, 72 (1981) (“despite
appellees’ assertions, Congress did not act ‘unthinkingly’ or
‘reflexively and not for any considered reason’”); see also Majority
Op. at 28.
The majority seizes on this line from Rostker — along with
Rostker’s observation that “Congress had extensively studied and
debated the issue” there — to craft a new test. That test requires the
military to prove that any classification it makes was “based on
detailed study rather than ‘archaic and overbroad generalizations.’”
Majority Op. at 29. Does even intermediate scrutiny demand such
proof? And if the military’s action memo citing multiple studies and
relating them to multiple military needs was insufficient, what more
is needed? The majority does not even acknowledge the military’s
reliance on those studies, much less defer to the military’s weighing
of them, so we cannot know why they fall short. So where within

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To repeat, the political branches do not need to make such
a thorough showing to earn judicial deference. We are now far
beyond what “great deference” requires.129 I go this far only to
show that the military has met and surpassed its burden.
Note for a moment what I am not saying. I am not saying
the evidence must be read as the military reads it. Nor am I
saying the military’s conclusions are the best conclusions. I am
in no way qualified to know who is sufficiently likely to be
deployable on a moment’s notice, what level of risk is
acceptable, or how to balance readiness against other values.
Fortunately for me, it is not our job to answer those
questions. In cases like today’s, our role requires deference to
the judgment of the Executive and Congress. That is why, in
every binding precedent identified by the plaintiffs regarding
the constitutionality of internal military matters like military-
wide preparedness, the military won.130
the majority’s test is “deference” to military decisionmaking? The
majority says the word several times, but it has no discernible effect
on the majority’s test or analysis.
129 Goldman, 475 U.S. at 507.
130 At oral argument, the plaintiffs were given an opportunity to
identify an exception. They couldn’t. Instead, when asked to
identify “the best precedent from the Supreme Court or this circuit
for you where the case concerned a uniquely military matter, like
military preparedness,” they focused on two cases. One is inapposite
because it was decided on statutory grounds (Singh), and the other is
a constitutional case that the Government won (Rostker). The
plaintiffs also mentioned, almost in passing, an emergency order
granting the Government’s application for a partial stay in a statutory
and constitutional case (United States Navy Seals) and an opinion
granting the Government’s request to reverse a preliminary
injunction and announcing that Korematsu has been overruled

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B. The Plaintiffs’ Argument
In light of that uninterrupted line of adverse decisions, the
plaintiffs were asked at oral argument to identify the best
binding precedent for their claim. They cited Singh v.
Berger131 and Rostker v. Goldberg.132 The first is mildly
relevant but only in a way that is, for them, mildly unhelpful;
(Trump v. Hawaii). See Oral Arg. Tr. 109:6-110:23; cf. Singh v.
Berger, 56 F.4th 88 (D.C. Cir. 2022); Rostker v. Goldberg, 453 U.S.
57 (1981); Austin v. U. S. Navy Seals 1-26, 142 S. Ct. 1301 (2022);
Trump v. Hawaii, 585 U.S. 667, 710 (2018) (discussing Korematsu
v. United States, 323 U.S. 214 (1944)).
District courts have occasionally entered injunctions affecting
military personnel policies, and at least one court of appeals has
affirmed relief affecting such policies. See, e.g., Roe v. Department
of Defense, 947 F.3d 207 (4th Cir. 2020) (affirming a preliminary
injunction that prohibited the military from discharging service
members diagnosed with HIV and from enforcing a policy that
limited deployability of those service members). But those cases are
not binding because they arose outside this circuit. Cf. Doe 2 v.
Shanahan, 917 F.3d 694, 740 (D.C. Cir. 2019) (Williams, J.,
concurring in the result) (“Indeed, when asked at oral argument for
any case ‘in the history of the Republic in which the judiciary has
decided military-wide rules about accession and retention,’
plaintiffs’ counsel offered only Crawford v. Cushman, 531 F.2d 1114
(2d Cir. 1976). Oral Arg. Tr. 28:21-29:14. But although Crawford
used casual language suggesting readiness to direct an order
‘declaring the challenged regulation to be unconstitutional,’ id. at
1126, 1127, it never issued any such order, and, in any event, the
Second Circuit has broadly rejected Crawford’s entire want of
deference to military judgments ‘in light of the intervening Supreme
Court opinion in Rostker[],’ see Mack v. Rumsfeld, 784 F.2d 438,
439 (2d Cir. 1986) . . . .”).
131 56 F.4th 88 (D.C. Cir. 2022).
132 453 U.S. 57 (1981); see also supra note 130.

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the second is more relevant and in a way that is even more
unhelpful.
Unlike today’s constitutional case about the right to equal
protection, Singh was a statutory case about the Religious
Freedom Restoration Act. This court held that the military
likely violated a congressional mandate by making a Sikh
Marine shave his beard.133 So to the degree that Singh is at all
relevant here, it works against the plaintiffs, given that they can
point to no congressional mandate that favors their position.
As for Rostker, the military won that case. In it, the
Supreme Court rejected an equal-protection challenge to the
single-sex military draft.134 Rostker spared no words when
criticizing courts that too closely scrutinize the political
branches’ judgments about the system-wide composition of the
military, calling the district court “quite wrong” for
“undertaking an independent evaluation of th[e] evidence.”135
You might think that the plaintiffs’ inability to name a
helpful precedent was the low point of their oral argument. It
wasn’t. That came when they refused to say whether the
Constitution requires the military to let service members depart
from the standards for their birth sex.
When asked if the Constitution allows the military to
impose men’s physical fitness requirements on transgender
women, the plaintiffs said, in effect, no answer. What about
making them wear a man’s uniform? No answer. What about
making them cut their hair like a man? No answer. What about
making them use men’s showers? No answer. What about
133 Singh, 56 F.4th at 94, 109–10.
134 Rostker, 453 U.S. at 78–79.
135 Id. at 83.

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making them use men’s bathrooms? No answer. What about
imposing on them men’s deployability standards? No answer.
What about imposing on them men’s retention standards? No
answer.136
In lieu of responsive answers, the plaintiffs relied on
generalities like “whatever policy exists, it has to be rational
and not fueled by animus.”137 But at least as a general matter,
concern about medical conditions’ effects on deployability is
neither irrational nor fueled by animus. And the plaintiffs don’t
deny that gender dysphoria is a medical condition — one that
can cause clinically significant distress.138
That makes the plaintiffs’ non-answers a bit puzzling.
They say people suffer from gender dysphoria whenever they
are “prevented from being able to live congruently with their
gender identity.”139 And they say the military cannot force all
transgender people out of the military.140 So doesn’t that mean
the military must let people “live congruently with their gender
identity”?141 And if it does, why not say so?
Consider also the question that logically arises from the
following four propositions, which the plaintiffs either
endorsed or did not disclaim. First, the military might be able
to make transgender people live congruently with their birth
136 Oral Arg. Tr. 67:2-69:3.
137 Id. at 69:2-3; see also id. at 66:21-23; 67:9-11; 68:3-8; 68:12-18.
138 See id. at 86:18-20 (Plaintiffs: “stable without clinical distress
means they no longer have gender dysphoria because they’ve
undergone treatment”).
139 Id. at 64:22-23.
140 Id. at 90:4-6.
141 Id. at 64:22-23.

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sex.142 Second, making them do so causes gender dysphoria.143
Third, gender dysphoria is a medical condition that can cause
significant distress.144 Fourth, concern about the distress
caused by a medical condition can at least sometimes be a
rational basis for exclusion from the military.145
Why, then, is that concern not a rational basis for the
plaintiffs’ exclusion?
If you ask them, don’t expect an answer more responsive
than “whatever policy exists, it has to be rational and not fueled
by animus.”146
C. The Majority’s Argument
The majority discounts the need for deference, weighs the
evidence, and concludes that the military’s policy is arbitrary
and fueled by animus.
142 See id. at 66:6-69:3 (taking no position on specific policies
requiring service members to serve congruent with their birth sex).
143 Id. at 64:20-23 (“[G]ender dysphoria is the distress a transgender
person will feel if they’re unable to or prevented from being able to
live congruently with their gender identity.”); id. at 65:8-11 (“That
incongruence between your identity as male or female and being seen
by others and having to live in your birth sex is the source of the
distress.”).
144 Id. at 64:23-25 (“If they’re unable to live in a sex different than
their birth sex, eventually that will cause distress.”).
145 Id. at 104:14-16 (if the military disqualifies people from joining
who have a medical condition, “we’d want to look at is there a good
reason, a legitimate reason, to be concerned about that medical
diagnosis”).
146 Id. at 69:2-3; see also id. at 66:21-23; 67:9-11; 68:3-8; 68:12-18.

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Rather than deferring to the military’s national-security
assessment, the majority boldly declares that a “reversal to the
status quo that has been held for four years cannot possibly be
deemed a major threat to national security when no such
national security threats were raised in years prior.”147 In my
view, that blanket proposition is hardly self-evident. But here
again, it’s not my view (or the majority’s) that should matter.
Judges this side of Midian and Moab do not “begin the day with
briefings that may describe new and serious threats to our
Nation and its people,”148 and we “have less competence” here
than in almost any “area of governmental activity.”149 So the
Supreme Court and this court, in opinion after opinion, have
afforded “great deference” to the military’s judgment about
what is “a major threat to national security.”150
The majority says the military “put forward no evidence”
to rebut the plaintiffs’ experts151 and has “not contested that all
of the currently serving [plaintiffs] . . . have served honorably
147 Majority Op. at 47.
148 Winter, 555 U.S. at 24 (quoting Boumediene v. Bush, 553 U.S.
723, 797 (2008)).
149 Gilligan, 413 U.S. at 10; cf. Ramirez de Arellano v. Weinberger,
745 F.2d 1500, 1550–51 (D.C. Cir. 1984), cert. granted, judgment
vacated, 471 U.S. 1113 (1985) (Scalia, J., dissenting) (“In Old
Testament days, when judges ruled the people of Israel and led them
into battle, a court professing the belief that it could order a halt to a
military operation in foreign lands might not have been a startling
phenomenon. But in modern times, and in a country where such
governmental functions have been committed to elected delegates of
the people, such an assertion of jurisdiction is extraordinary.”).
150 Goldman, 475 U.S. at 507 (first quote); Majority Op. at 47 (second
quote).
151 Majority Op. at 47.

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and met all military standards during their service.”152 True.
But that does not mean that the military has “forfeited any
argument that . . . retaining these servicemembers will harm
national security.”153 For “complex, subtle, and professional
decisions” like the standards for military service and whether a
group of service members who have served well in the past are
sufficiently likely to deploy adequately in the future, the
military is the only expert that matters. And whether the
plaintiffs’ “expert witnesses” agree with the military’s
national-security assessment “is quite beside the point.”154
In addition, the majority calls the policy “arbitrary”155 for
disqualifying anyone “with a history of gender dysphoria”156
and denying waivers to anyone who has “attempted to
transition” from one gender to another.157 But it’s at least
conceivable that a history of gender dysphoria, or a history of
symptoms like an attempt to transition, makes a recurrence
more likely. And according to the rational-basis standard the
majority purports to apply, a “conceivable” rationale is all
152 Id.
153 Id.
154 Goldman, 475 U.S. at 509.
155 Majority Op. at 4.
156 Id. at 32.
157 Id. (quoting JA 53–55, 210).
Both categories — people with a history of gender dysphoria and
people with a history of attempting to transition — are related, at
least according to the plaintiffs, because “identifying as a sex
different than your birth sex, and wishing to live as a sex different
than your birth sex, or living as a sex different than your birth sex,
that is a symptom of gender dysphoria.” Oral Arg. Tr. 103:12-16.

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41
that’s needed.158 That standard gives policymakers room to
make rules without having to connect every dot in the
inferential chain — for example, to explain why a person’s
medical history may indicate future medical vulnerability.
Several other military policies seem to make the same
short inferential leap by excluding people with a history of
medical and psychiatric conditions, even though the conditions
may have come and gone long ago. For example, the military
excludes people with a history of asthma or asthma-like
symptoms “after the 13th birthday.”159 Is that
“inexplicable”?160 It also excludes people with a history of
158 Sanchez v. Office of State Superintendent of Education, 45 F.4th
388, 396 (D.C. Cir. 2022) (rational basis review requires courts to
uphold a policy “if there is any reasonably conceivable state of facts
that could provide a rational basis for the . . . choice” (cleaned up));
cf. Majority Op. at 24–25 (“assuming we will not employ any form
of heightened scrutiny”).
159 DoW Instruction 6130.03, Vol. 1, Medical Standards for Military
Service: Appointment, Enlistment, or Induction § 6.10(e) (May 6,
2018) (Change 6, Feb. 3, 2026).
160 See Majority Op. at 41–42 (characterizing as “‘inexplicable by
anything but animus’” the military’s exclusion from waiver
eligibility of anyone with a “past experience with social
transitioning,” as well as the denial of “individualized review”
(quoting Hawaii, 585 U.S. at 706)).
The Government represented at oral argument that it would be
wrong to suggest that gender dysphoria creates a more certain chance
of separation than does any other medical condition. Cf. Majority
Op. at 39 (“servicemembers with every other medical condition
receive an individualized review of their circumstances to determine
if they can continue to serve — except if they have gender
dysphoria”). According to the Government, other medical
conditions are disqualifying 100 percent of the time, and “[t]he
person with gender dysphoria would have a better chance” of staying

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“any eating disorder.”161 Is that a disqualification with “no
reasonable justification”?162
The plaintiffs’ own assertions at oral argument provide a
reasonable justification for why the military might choose to
disqualify anyone prone to gender dysphoria — even if that
condition has been treated. According to the plaintiffs, gender
dysphoria results from someone being “unable to or prevented
from being able to live congruently with their gender
identity.”163 So even people who have “undergone
treatment”164 may be expected to experience gender dysphoria
again if required to serve in their birth sex. Indeed, the
plaintiffs here say that none of them are able to comfortably
“adhere to the military’s standards for their birth sex with
respect to grooming, uniform, bathrooms, [and] where they
sleep.”165 Yet that is precisely what the new military policy
requires. And (as you’ll recall from above) the plaintiffs take
no position on whether such a requirement is constitutional.166
Finally, for the same reasons that the policy does not
otherwise fail the rational-basis standard the majority applies,
in the military than would a person with those conditions “because
there is a waiver process” for some people with gender dysphoria.
Oral Arg. Tr. 44:12-14; see also id. at 42:1-2 (Government: “there
are nonwaivable conditions”).
161 DoW Instruction 6130.03, Vol. 1, § 6.28(k).
162 See Majority Op. at 4.
163 Oral Arg. Tr. 64:22-23.
164 Id. at 101:12-15. Cf. id. at 86:23-87:5 (defining “treatment” as
“transition” through “hormone treatment or surgery” or “social
transition”).
165 Id. at 88:2-16.
166 See supra text accompanying note 136.

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the policy is not “based upon animus.”167 It “has a legitimate
grounding in national security concerns”168 — as do all
military readiness policies. And courts must “uphold the
policy so long as it can reasonably be understood to result from
a justification independent of unconstitutional grounds.”169
I need not again enumerate the reasons this policy rests on
a permissible justification,170 and the majority’s opinion does
not explain which part of the military’s justification is
unreasonable. Is it because the Constitution prohibits the
military from using past diagnoses as a proxy for current or
future risk of gender dysphoria — a proxy the military uses for
many other medical conditions?171 Or is it because the
Constitution prohibits the military from treating prior attempts
to transition as evidence that a person may have once had
gender dysphoria — even though the plaintiffs describe
attempts to transition as a symptom of gender dysphoria?172 Or
is it because the Constitution prohibits the military from
making people serve in their preferred gender — an argument
that the plaintiffs refused to make?173
The first of those arguments conflicts with the military’s
common practice in areas undoubtedly free of animus. The
other two arguments conflict with the plaintiffs’ own words.
None of them proves animus. Nor do they warrant the
167 Majority Op. at 4.
168 Hawaii, 585 U.S. at 706.
169 Id. at 705.
170 See supra text accompanying notes 116–128, 142–145, 155–166.
171 See supra text accompanying note 159, 161.
172 See supra note 157.
173 See supra text accompanying note 136.

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majority’s unprecedented intrusion into the internal operations
of the armed forces.174
174 Last year, the Supreme Court stayed an order preliminarily
enjoining the military’s policy on transgender service members in
United States v. Shilling, 145 S. Ct. 2695 (2025). The Court issued
that stay without explanation, so we “cannot know with certainty
every reason why the Supreme Court” concluded that the equities
favored the Government. Cf. Miot v. Trump, No. 26-5050, 2026 WL
659420, at *5 (D.C. Cir. Mar. 6, 2026) (Walker, J., dissenting). “But
we can know that it did reach that conclusion,” and that stay must
“inform ‘how [we] should exercise [our] equitable discretion in like
cases.’” Id. at *6 (quoting Trump v. Boyle, 145 S. Ct. 2653, 2654
(2025)).
To be sure, this is a different case in a different procedural
posture. It is an appeal asking us to vacate a preliminary injunction,
see Winter, 555 U.S. at 12, rather than an application asking the
Supreme Court to stay a preliminary injunction, see Hollingsworth
v. Perry, 558 U.S. 183, 190 (2010). But “the parties’ legal arguments
and relative harms generally” are the same. Cf. Noem v. National
TPS Alliance, 146 S. Ct. 23, 24 (2025). So there is more than a little
reason to think that “[t]he same result that [the Supreme Court]
reached [last] May is appropriate here.” Id.
The plaintiffs suggest that this case is distinguishable because the
district court here found animus. Appellees’ Br. at 48. That is
unpersuasive. While the district court and the majority have made
the role of animus more explicit than in Shilling and have treated it
as independently dispositive, Shilling relied on the same underlying
defects in the Government’s justification. In Shilling, the district
court concluded that the challenged policy was unsupported by
evidence, rested on stigmatizing and derogatory characterizations,
and bore no genuine connection to the government’s asserted
interests. See Shilling v. United States, 773 F. Supp. 3d 1069, 1094–
97, 1101 (W.D. Wash. 2025). The district court there rejected the
Government’s reliance on speculative “predictions” that ignored “the
reality of years of open service,” and emphasized the Government’s

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45
IV. Conclusion
“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.”175 Only the Executive and Congress are
responsible for system-wide military judgments about the
composition of the armed forces.
The Supreme Court has never assumed that role for itself.
Neither has the D.C. Circuit.
Not until today.
concession that there was “no evidence” that transgender status
conflicts with honesty, humility, or integrity. Id. at 1098. Those
conclusions mirror the features that today’s majority identifies as
hallmarks of constitutional animus.
175 Orloff v. Willoughby, 345 U.S. 83, 93 (1953) (Jackson, J.).

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