The D.C. Circuit Court of Appeals handed the Trump administration a split decision, ruling 2-to-1 that while the administration can bar new transgender recruits from joining the military, it cannot force out the service members who are already serving. The ruling applies only to the 107 plaintiffs who brought the original lawsuit.
The case is heading back to the Supreme Court.
“The Hegseth policy is both arbitrary and based upon animus,” wrote Judge Robert Wilkins, an Obama appointee, in the majority opinion. “For those reasons, the policy violates Plaintiff-Appellees’ constitutional right to equal protection of the law.”
The policy Wilkins is describing was crafted by Defense Secretary Pete Hegseth and implemented in early 2025. It bars service members diagnosed with gender dysphoria from serving openly, citing the Defense Department’s position that gender dysphoria does not meet “the high mental and physical standards necessary for military service.” In May 2025, the Supreme Court allowed the policy to take effect while the litigation continued.
Monday’s ruling walks that back, at least in part.
Wilkins, joined by Judge Judith Rogers, a Clinton appointee, drew a distinction the administration had not asked the court to draw: that expelling current troops is legally different from denying new recruits. The rationale is practical as much as constitutional. “For those servicemembers facing expulsion,” Wilkins wrote, “it is not clear how easily they can be reinstated and made whole.” Ending a military career, the court said, is a greater hardship than delaying the start of one.
That distinction sounds reasonable on its face. What it actually does is invite the next round of litigation, in which the plaintiffs’ lawyers argue that denying enlistment is also an irreparable harm. The logic doesn’t have a natural stopping point.
The lone dissenter on the panel saw this clearly. Judge Justin Walker, a Trump appointee, pushed back hard on the majority’s reasoning, arguing the courts have no business second-guessing military personnel policy at all.
“We have neither the expertise nor the authority to decide whether the military can exclude the plaintiffs from its ranks,” Walker wrote. “The Constitution assigns that authority to Congress and the Commander in Chief.”
Walker’s dissent may prove more consequential than the majority opinion. It maps exactly the argument the administration will make on appeal. The Supreme Court has already shown deference to the executive on this issue: the justices allowed the Hegseth policy to take effect in May 2025 rather than strike it down. The administration will now ask the high court to decide whether the equal protection framework Wilkins applied to expulsions also governs enlistment, or whether military composition decisions are categorically off-limits to the judiciary.
The word “animus” in Wilkins’ opinion is doing heavy legal lifting here, and conservative legal scholars will recognize the move. It traces back to the Supreme Court’s 1996 decision in Romer v. Evans, in which the court struck down a Colorado anti-gay ballot measure on the grounds that it was motivated by bare hostility toward a disfavored group. Using that framework to analyze a military personnel policy, crafted by a Defense Secretary responding to the Commander in Chief’s executive order, is a significant expansion of that doctrine. Walker called it “unprecedented intervention into military affairs.” He’s not wrong.
For now, the 107 service members in the lawsuit are protected. The Pentagon cannot proceed with their discharge. But a new recruit with a gender dysphoria diagnosis is still barred from service under the Hegseth policy, and nothing in Monday’s ruling changes that.
