Defense Secretary Pete Hegseth’s policy to remove transgender members of the military was fueled by unconstitutional animus and “the bare desire to harm a politically unpopular group,” a federal appeals court panel ruled Monday.
However, the three-judge panel of the D.C. Circuit Court of Appeals divided over how broadly to apply its ruling, opting to protect only the the specific plaintiffs in the case. In a 2-1 ruling authored by Judge Robert Wilkins, the panel made clear it was seeking to avoid running afoul of the Supreme Court’s concerns about nationwide injunctions.
Wilkins noted that the Supreme Court, without explanation, blocked a similar ruling made last year by a federal judge in Washington state that applied nationwide. Wilkins, an Obama appointee, was joined by Judge Judith Rogers, a Clinton appointee, in the decision protecting the existing servicemembers.
Administration officials “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,” Wilkins wrote, rejecting the administration contention that excluding them from service was meant to protect national security.
Wilkins and Rogers also rejected administration arguments that the policy was really aimed at protecting troop readiness, saying those “post hoc” justifications could not paper over the animus at the heart of the policy.
The Justice Department and Pentagon did not immediately respond to requests for comment.
Further complicating the ruling: Wilkins split from Rogers over whether to apply the decision to people seeking to join the military. Instead, Wilkins joined Judge Justin Walker, a Trump appointee, in concluding that those seeking to join the military could still be excluded under Hegseth’s policy while the litigation plays out.
Rogers said she would have left in place a lower court’s relief for transgender people seeking to enlist or be commissioned in the military, although she said only applicants who joined the suit should be immune from the new policy.
Walker said in a separate opinion that he would have allowed the administration’s policy to be enforced against both new military members and those already in the armed forces. He said the executive branch is entitled to great deference when making decisions about military personnel and readiness.
“When we discount that deference, we endanger ‘every current servicemember’ 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,” Walker wrote.
The panel’s ruling will not take immediate effect, because the court is giving both sides the chance to ask for the full bench of the appeals court to take up the case.
In a separate challenge to the same policy last year, the Supreme Court lifted an order from a federal judge in Washington state that blocked the military from enforcing the ban. However, that high court order only applied to that case. Wilkins and Rogers noted that the Supreme Court’s silence about its basis for that decision left open whether the justices would uphold their narrower ruling.
If the Trump administration can’t get the full D.C. Circuit to take up the decision the panel issued Monday and wants to kick the plaintiffs in the D.C. case out of the military, Justice Department lawyers will have to seek another order from the high court.
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