Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Amicus brief from attorneys general argues banning transgender individuals from military service harms states, (Nov 18, 2025)

By Patricia K. Ruiz, J.D.

Servicemembers who enlist in a state’s national guard must simultaneously enlist in the U.S. National Guard, which is a reserve component of the armed forces.

California Attorney General (AG) Rob Bonta, as part of a coalition of 18 attorneys general, filed an amicus brief in Talbott v. Trump, which is before the D.C. Circuit on appeal and challenges a Trump administration executive order (EO) seeking to ban transgender individuals from serving in the military in any capacity. The AGs argue in their brief that, due to the overlapping nature of the state and federal national guards, banning transgender individuals from service undermines the efforts and institutions of the states.

Overlapping but distinct organizations. Statutes governing the National Guard “reflect a delicate compromise that gives the States power over their respective militias—subject to the President’s power to call those militias into national service when necessary,” the brief states. The National Guard includes two overlapping but distinct organizations—the national guards of the various states and the U.S. National Guard. Servicemembers who enlist in a state’s national guard must simultaneously enlist in the U.S. National Guard, which is a reserve component of the armed forces.

However, members of the Army National Guard of the United States and the Air National Guard of the United States are not in active federal service except when ordered thereto under law—the states retain control of the National Guard when it is not properly called into federal service. The National Guard is primarily funded through federal appropriations but also receives funding from the states.

AGs’ arguments. The coalition of AGs urges the U.S. Court of Appeals for the D.C. Circuit to affirm a preliminary injunction granted by the U.S. District Court for the District of Columbia. The coalition argues that banning transgender individuals from military service will: (1) harm recruitment efforts for the national guard, jeopardizing states’ security and readiness; (2) undermine states’ institutions and efforts to uphold and protect the rights of their LGBTQ+ communities; (3) harm states’ transgender veterans, active service members, and those who wish to serve; and (4) undercut the role of the military as an inclusive, diverse institution whose makeup reflects the broader population of the U.S.

“Transgender individuals continue to face discrimination nationwide, despite the demonstrable positive impacts they bring to our communities, through military service and otherwise,” Bonta said. “The district court agreed that Trump’s order is unconstitutional and unjustified, but Trump has doubled down on his anti-American, unlawful attacks. We will not allow this administration to hamstring our military in pursuit of hateful policies. We will continue to fight to protect transgender individuals’ rights to live fulfilling lives free of unfair roadblocks.”

The coalition includes the AGs of Vermont, Washington, Colorado, Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, and Rhode Island.

The appeals case is No. 25-5087.

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