A panel of judges ruled on June 1 that President Donald Trump’s policy of excluding people with gender dysphoria already serving in the military is unconstitutional.
The policy, instituted last year under War Secretary Pete Hegseth, “appears to be driven by the bare desire to harm a politically unpopular group: persons who identify as transgender,” the Court of Appeals for the D.C. Circuit ruled.
The rule excludes 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.” It also prevents such people from joining the military in the future.
Circuit Judge Robert Wilkins agreed that current members could stay, but he disagreed about incoming military personnel.
“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,” he wrote in the court’s final opinion.
Circuit Judge Justin Walker disagreed with the lower court ruling.
“We have neither the expertise nor the authority to decide whether the military can exclude the plaintiffs from its ranks,” he wrote. “The Constitution assigns that authority to Congress and the Commander in Chief.”
He cited several cases in which courts had allowed the military to intrude on soldiers’ rights, including due process, free speech, and equal protection under the law. Walker said he greatly valued those rights.
“But because the plaintiffs are service members not civilians, and because we are judges not generals, I respectfully dissent,” he wrote.
Before 2016, the military effectively banned anyone who “did not identify with the gender assigned to them at birth” from serving openly.
That changed during President Barack Obama’s last year in office, when the rule was adjusted to allow such individuals to serve, but only if they had demonstrated stability in their chosen gender identity.
Trump altered the policy again when he took office in 2017. He forbade new members with gender dysphoria from joining the military but allowed those who had been serving to stay, because they had relied on the previous policy.
The rule changed again when President Joe Biden took office in 2021, “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.”