Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—W.D. Wash.: Nationwide preliminary injunction issued against transgender military ban, (Mar 28, 2025)

By Todd Harrison, J.D.

“In short, none of the government’s data supports its conclusion that banning transgender persons from serving is substantially related to achieving military readiness.”

Granting a preliminary injunction to a group of plaintiffs who sought to prohibit the enforcement of the Trump administration’s ban on transgender individuals in the military, a federal district court in Washington determined that absent an injunction, all transgender servicemembers are likely to suffer irreparable harm of losing the career they have chosen, while otherwise qualified accession candidates will lose the opportunity to serve. Further, because the military has operated smoothly under the previous administration’s policy, the claimed hardship it faced in the meantime would pale in comparison to the hardships imposed on transgender servicemembers, said the court (Shilling v. United States, No. 25-cv-241-BHS (W.D. Wash. Mar. 27, 2025)).

The plaintiffs in this case included seven transgender servicemembers who have served honorably, an accession candidate for the U.S. Marine Corps who feared he would be ineligible to enlist based on his age if he waits for a subsequent administration to change military policy, and a human rights organization whose members include openly transgender servicemembers. Twenty-one states also joined as amici.

Mattis policy. During President Trump’s first administration, then-Secretary of Defense James Mattis issued a memorandum announcing changes to the military’s policy concerning transgender servicemembers. In crafting the policy, Mattis established an expert panel to review the impact of transgender servicemembers on military readiness. The panel met 13 times over the course of 90 days.

Austin policy. In 2021, President Biden issued an executive order instructing the Department of Defense, then under the leadership of Secretary of Defense Lloyd Austin, to allow transgender individuals to serve openly in the military.

Hegseth policy. Executive orders issued by President Trump upon taking office in January 2025 effectively banned transgender individuals from all branches of the military. Resolving to “remove all traces of gender ideology,” the Department of Defense, currently overseen by Secretary of Defense Pete Hegseth, paused all new accessions for individuals with a history of gender dysphoria and all gender-affirming medical care. It further stated that, “Transgender troops are disqualified from service without an exemption.”

The Hegseth policy cited, among other sources, the Mattis policy as well as the Department of Defense’s 2021 Psychological Health Center of Excellence and the Accession Medical Standards Analysis and Research Activity (AMSARA) study.

Legal challenges. According to the plaintiffs, the military ban violates their constitutional Equal Protection, First Amendment, and Procedural Due Process rights. The active-duty plaintiffs also asserted that they reasonably and detrimentally relied on the Austin policy that permitted them to enlist and serve openly. They asked the court to enjoin the military’s impending implementation of the ban.

In response, the government argued that because its military judgment is entitled to “unquestionable” deference, the plaintiffs were unlikely to succeed on the merits. It also contended that the plaintiffs’ claims were unripe for failure to exhaust.

Ripeness. First addressing the issue of ripeness, the court explained that exhaustion of administrative remedies is not required if administrative appeal would be futile or if substantial constitutional questions were raised. Both were true in this instance, said the court, and the plaintiffs’ claims were ripe.

Intermediate scrutiny. Turning to the plaintiffs’ Equal Protection claims, the court determined that the military ban and the Hegseth policy were subject to intermediate scrutiny. Finding the Hegseth policy to be discriminatory toward those with transgender status, the court was not persuaded by the “government’s attempt to evade the strictures of intermediate scrutiny by using the term gender dysphoria.”

In addition, the court noted the Ninth Circuit has repeatedly affirmed that classifications based on transgender status warrant heightened or intermediate scrutiny, and that transgender is at least a quasi-suspect class.

Further, the Ninth Circuit, the Supreme Court, and many other courts have concluded that discriminating against a person for being transgender inherently discriminates against that individual based on sex. Because the military ban and the Hegseth policy discriminate based on sex, this provided the court with an additional, independent basis for applying intermediate scrutiny.

Military deference. Because this case involved judicial review of military decision making, the government argued that rational basis review should apply. The court was not moved, noting that it could still apply appropriate military deference to the Hegseth policy while applying intermediate scrutiny.

Interests not furthered. Although the government’s stated interests were important, the court found that the military ban did not significantly further those interests. “The most pointed problem for the government is not just its irrational use of the evidence that it relies on, but the lack of evidence it provides and the ample evidence it simply ignores,” said the court, noting that the government had failed to contend with the reality that transgender servicemembers had served openly for at least four years under the Austin policy without any discernable harm to the military.

Instead, continued the court, the government relied on the Mattis policy’s concerns about problems transgender servicemembers “could” cause and used out-of-context quotes from medical studies. The government’s inability to illustrate that the military ban was rationally related to its stated interest, let alone that it significantly furthered those interests, meant the military ban and the Hegseth policy failed any level of Equal Protection scrutiny, to say nothing of intermediate scrutiny, said the court.

First Amendment claim. Next, the court found that the plaintiffs were likely to succeed on the merits of their First Amendment claim. Acknowledging that the First Amendment’s guarantees do not reach as far in the military context as they do in civilian society, the court nonetheless found that the Hegseth policy entailed a viewpoint-based restriction on transgender servicemembers’ speech and expression, noting that the ban goes so far as to restrict transgender expression “even in one’s personal life.”

“As with plaintiffs’ Equal Protection claim, the government has not demonstrated that infringing upon transgender service members’ gender expression even in their personal life furthers an important government interest,” said the court.

Procedural Due Process. Turning to the plaintiffs’ Procedural Due Process claim, the court again found the plaintiffs were likely to succeed on the merits. The court observed that the plaintiffs had implicitly conceded, and the government had affirmatively asserted, that they have no stand-alone constitutionally protected liberty or property interest in continued military service. However, the court found that the active-duty plaintiffs’ claim was a “stigma plus” claim, based on the insulting language of the Hegseth policy and the reputational harm and adverse employment status it causes.

The plaintiffs also argued persuasively that the government created a reasonable expectation that the active-duty servicemembers would not be punished for disclosing their status and transitioning under the military’s approved process for doing so, and that the government’s actions here were tantamount to a bait and switch.

Honorable discharge. Arguing that the plaintiffs were not likely to succeed on the merits of their stigma-plus claim because they were mistaken that “separation brands them as being dishonest or dishonorable,” the government asserted that under the Hegseth policy any characterization of their service upon discharge will be characterized as “honorable.” The court was not swayed.

“The government cites no authority supporting its claim that the reputational harm is erased for Due Process purposes if the discharge caused by the public stigmatization is nevertheless ‘honorable,’” said the court.

Equitable estoppel. As to the equitable estoppel claim set forth by the active-duty plaintiffs, the court found that here too they were likely to succeed on the merits, noting that “justice and fair play preclude even the military from reneging on its promises and punishing service members for conduct it expressly sanctioned.”

Irreparable harm. The court agreed with the plaintiffs that they would suffer irreparable harm absent an injunction, noting that not only had they alleged constitutional harms, they had also shown that a servicemember’s choice to pursue a military career, once wrongfully discharged, could not find another military employer outside of the U.S. military.

Equities, public interest. Finally, with regard to the balance of equities and the public interest, the court found that absent any evidence that military service requires the immediate implementation of the ban and the Hegseth policy, equity and the public interest support enjoining an “unsupported, dramatic and facially unfair exclusionary policy.”

Injunction’s scope. As to the scope of the preliminary injunction, the court determined that this was a rare case that warranted a nationwide injunction, explaining that the record was clear that the ban would impact all branches of the military nationwide.

The case is No. 25-cv-241-BHS.

Judge: Settle, B.

Attorneys: Abdul Kallon (Perkins Coie) for Emily Shilling. Jason C. Lynch, U.S. Department of Justice, for U.S.

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