Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—D.D.C.: Federal district court preliminarily enjoins Trump administration’s ban on transgender troops, (Mar 19, 2025)

By Jason Albright, J.D.

“We should all agree… that every person who has answered the call to serve deserves our gratitude and respect.”

A federal district court in D.C. granted a preliminary injunction against the Trump administration’s new ban on military service by transgender persons. The plaintiffs, a group of transgender service members who together have provided more than 130 years of military service, are likely to succeed on their claim, and the court found the new military service ban is subject to intermediate scrutiny under the Fifth Amendment because it classifies based on sex and transgender status, two distinct quasi-suspect classes. Finding the ban “littered with animus and pretext,” the court observed that the government has “targeted transgender persons writ large,” that transgender service members suffer the loss of a liberty interest as a result, and that the government will not suffer any harms from a preliminary injunction (Talbott v. United States, No. 25-cv-00240 (ACR) (D.D.C. Mar. 18, 2025)).

Executive order and new DOD policy. In Executive Order No. 14183, “Prioritizing Military Excellence and Readiness,” 90 Fed. Reg. 8757 (Jan. 27, 2025), President Trump stated that the military’s “clear mission” is to “protect the American people and our homeland as the world’s most lethal and effective fighting force.” Service by transgender persons, Trump stated in the EO, is “inconsistent” with this mission because they lack the “requisite warrior ethos” to achieve “military excellence.”

On February 26, 2025, Secretary of Defense Peter B. Hegseth issued a policy to implement EO 14183’s directives. Hegseth’s new DOD policy disqualifies “[t]ransgender troops... from service without an exemption.”

History and Carter memorandum. Before diving into the details of the lawsuit, the district court recounted the history of the military’s openness to service by transgender individuals. Before 2014, the U.S. precluded transgender persons from military service, but this changed during President Barack Obama’s second term. In 2014, DOD eliminated its categorical ban on service by transgender persons and instructed each branch of the Armed Forces to reassess the ban’s rationales.

In 2016, Defense Secretary Ashton B. Carter issued Directive-Type Memorandum 16-005, titled “Military Service of Transgender Service Members,” which stated that “open service by transgender Service members while being subject to the same standards and procedures as other members with regard to their medical fitness for duty, physical fitness, uniform and grooming, deployability, and retention, is consistent with military readiness and with strength through diversity.” The Carter Policy for acceding transgender persons to the military was set to take effect on June 30, 2017, but President Trump took office for his first term in January 2017, and on June 30—the date accessions were to start—then-Secretary of Defense James Mattis deferred acceding transgender individuals into the military until January 1, 2018.

Trump’s first ban. Then, on August 25, 2017, President Trump issued a memorandum entitled “Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security” (2017 Memorandum). The 2017 Memorandum called for a ban on members of the military from serving in a sex different from their birth sex, stopped the accession of transgender persons, and halted funding for gender-affirming care, but several federal courts enjoined the memorandum, and in February 2018, Secretary Mattis presented a memorandum (Mattis Policy) to Trump that proposed an alternative to the enjoined 2017 memorandum.

Mattis policy. The Mattis Policy would not have banned service to all transgender persons. Instead, it recommended banning anyone who had undergone gender transition and those with a history or current diagnosis of gender dysphoria, except in some limited circumstances. It allowed transgender persons already in the military—who did not have gender dysphoria and were otherwise qualified for service—to serve, but only in their biological sex.

In March 2018, President Trump issued another memorandum revoking the 2017 memorandum and delegating authority to DoD and Department of Homeland Security to implement the Mattis Policy, which went into effect and remained in place until the beginning of the Biden administration in 2021.

Biden’s EO. On January 25, 2021, President Biden issued Executive Order 14004, “Enabling All Qualified Americans [t]o Serve Their Country in Uniform.” 86 Fed. Reg. 7471 (Jan. 25, 2021). Biden’s EO directed the Secretaries of Defense and Homeland Security to take necessary steps “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.” Under Biden’s policy, transgender persons could enlist and serve openly in the military.

Servicemembers’ lawsuit. Faced with EO 14168, eight transgender persons filed a complaint for declaratory and injunctive relief with the federal district court. Collectively, the active-duty plaintiffs have served in the U.S. military honorably and with distinction for over 130 years, and the government conceded that each active-duty plaintiff is honorable, truthful, and disciplined, and that each is currently physically and mentally fit to serve.

The plaintiffs alleged that the military ban, “[r]ather than being based on any legitimate governmental purpose,... reflects animosity toward transgender people because of their transgender status” and violates the equal protection component of the Due Process Clause of the Fifth Amendment. They sought a preliminary injunction against its enforcement.

Likelihood of success and deference to the military. Taking up the plaintiffs’ likelihood of success on the merits first, the district court found that the government seeks too broad an application of deference to military judgment. Although courts accept “the reasoned, professional analysis of Congress and the Executive on matters strictly within the realm of military expertise,” the government’s position “urges judicial abdication,” according to the court. Instead, the court, has an obligation under Supreme Court precedent “to test the military’s assertion of its interests.”

Intermediate scrutiny under Fifth Amendment. Here, the court noted that the Due Process Clause of the Fifth Amendment provides that “[n]o person shall be... deprived of life, liberty, or property, without due process of law.” Though this is “not as explicit a guarantee of equal treatment as the Fourteenth Amendment,” the Supreme Court has held that “the Constitution imposes upon federal, state, and local government actors the same obligation to respect the personal right to equal protection of the laws.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213, 231–32 (1995) (emphasis added).

In this instance, the court found that the 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. They are also likely, concluded the court, to succeed on their claim that the military ban fails intermediate scrutiny.

“[L]ittered with animus and pretext.” Applying intermediate scrutiny, the court found that the ban is “littered with animus and pretext,” despite the government’s assertions of interests in military readiness, unit cohesion, and cost containment, among other things. EO 14183 and the Hegseth policy, observed the court, “tag transgender persons as weak, dishonorable, undisciplined, boastful, selfish liars who are mentally and physically unfit to serve.” And the administration’s accompanying Fact Sheet on the policy “piles on, further calling transgender persons insane, not resilient, unhealthy, and unfit.” This was “hardly subtle,” and the court found that the military’s ban language shows the “bare…desire to harm a politically unpopular group.”

Medical care costs? Nor was the court persuaded by the administration’s invocation of the medical care costs of transgender troops, which the court found de minimis. The administration simply failed to explain why these asserted medical costs are of more concern than other costs. “Many service members receive medical care for far more common medical conditions, at a far greater cost and with a significant impact on the military budget,” the court observed, noting that Viagra cost DOD $41 million in 2023 alone—nearly eight times what the DOD spends on transgender medical care each year. Additionally, “the same medications (hormone therapies) and surgeries (mastectomies, hysterectomies, genital reconstruction)” that the administration claims are too costly “are provided to non-transgender service members.”

Government has “[t]argeted transgender persons writ large.” Taking note of a larger pattern, the court additionally noted that the military ban “does not stand alone.” President Trump has signed an executive order recognizing the existence of only two sexes; blocked schools from using federal funds to promote the idea that gender can be fluid; directed the State Department to stop issuing documents that allow a third “X” gender marker; changed references to “LGBTQI+” on government websites to “LGB”; revoked the ability of transgender federal employees to receive gender-affirming care; and directed that all incarcerated transgender persons be denied medical treatments and be housed by birth sex, where they are nine times more susceptible to violence.

This “flurry of government actions directed at transgender persons—denying them everything from necessary medical care to access to homeless shelters,” the court noted, “must give pause to any court asked to consider whether one such order under review furthers a legitimate government interest free of animus.”

Irreparable harm. The court easily found irreparable harm absent an injunction. “It has long been established that the loss of constitutional freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” and suits involving “the threatened invasion of a constitutional right do not ordinarily require proof of any injury other than the threatened constitutional deprivation itself.”

In addition, “all transgender servicemembers suffer from the irreparable reputational stigma the Military Ban espouses and forced separation from their positions,” said the court, and the plaintiffs also alleged that their removal from military service would deprive them of steady income and medical care and that the order brands them as less capable solely because of their transgender status. This was sufficient.

Balance of equities and public interest. Finally, the balance of the equities and the public interest favored an injunction. When the government is a party to the case, as it is here, the balancing test and the public interest test merge into one factor, and the court found that the government “will not suffer any harm if this Court grants the preliminary injunction.” Granting the preliminary injunction would maintain the status quo of policies that have governed the military for years. The accession policy has been in place since 2021, and the retention policy has been in place for nearly a decade (though it was interrupted by the first Trump Administration’s Mattis Plan). The military ban did not cite, and the government did not provide, any studies or declarations that explain why maintaining the status quo pending litigation would unfairly burden the military.

In contrast, the plaintiffs will be subject to irreparable harms already discussed absent a preliminary injunction, and they will also “face significant hardship because the Military Ban puts to them a Hobson’s choice: either immediately conform with the grooming and appearance standards for their birth sex or choose separation, either voluntarily or by removal proceedings.” Because the plaintiffs cannot physically conform to those standards and would have to do so against medical advice even if they could, they have no choice but to separate.

Finally, public interest considerations also supported granting the preliminary injunction, according to the court. First, “[e]nforcement of an unconstitutional law is always contrary to the public interest.” Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013). As discussed, the plaintiffs had shown they are likely to succeed on their Fifth Amendment claim, and they further pointed to potential harm to military cohesion and capability should the ban go into effect.

Scope of injunction and timing. Granting the preliminary injunction, the district court declined the administration’s invitation to limit its scope to the individual plaintiffs. However, it stayed the injunction until March 21, 2025, to provide the administration time to consider filing a motion for an emergency stay in the D.C. Circuit.

The case is No. 25-cv-00240 (ACR).

Judge: Reyes, A.

Attorneys: Inga S. Bernstein (Zalkind Duncan & Bernstein) for Nicolas Talbott. Jason C. Lynch, U.S. Department of Justice, for U.S. and Donald J. Trump.

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