In a Portland, Oregon, courtroom Monday morning, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard Shilling v. Trump, a challenge to President Donald Trump’s revived ban on military service by transgender Americans. The arguments — at turns constitutional, clinical, and deeply human — revisited a decade-long legal and cultural struggle over who is deemed fit to serve their country.
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The Defense Department policy at issue, published in February, bars anyone diagnosed with gender dysphoria from enlisting or continuing service. The government calls it a medical readiness regulation; the plaintiffs, seven active-duty service members and the Seattle-based Gender Justice League, say it is an unconstitutional act of animus.
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Representing the government, Deputy Associate Attorney General Abhishek Kambli, a member of the conservative Federalist Society, told the court the policy was “not a blanket exclusion” but a “neutral medical standard.” “The question this court has to answer is whether the plaintiffs have demonstrated that the military is constitutionally barred from implementing its policy of presumptively disqualifying those with gender dysphoria,” he said.
Judge Morgan Christen, appointed by former President Barack Obama, challenged the government’s characterization. “It sweeps far more broadly than a diagnosis,” she said, noting that the policy applies to anyone who has undergone or plans to undergo gender-affirming care. Kambli replied that “some people who are trans-identifying but don’t suffer the clinical distress or impairment of function that’s associated with gender dysphoria” could still serve. Those who could get a waiver to serve must have never done anything to acknowledge their gender identity.
Judge Andrew Hurwitz, also appointed by Obama, questioned whether the Defense Department could truly distance its rule from Trump’s public directive and the rhetoric that accompanied it. “Do you think the policy the secretary of defense promulgated was narrower than the policy the president told him to promulgate?” Hurwitz asked, referring to Trump’s executive order directing Defense Secretary Pete Hegseth to “restore the integrity” of the armed forces by removing transgender service members.
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In his January order, Trump wrote that, "adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life. A man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member."
Hurwitz pressed the DOJ attorney, noting that both Trump and Hegseth have made “repeated public comments expressing disdain” for transgender people in uniform, remarks that could suggest impermissible motive. “Doesn’t that history of statements matter when assessing whether this was an act of professional judgment or one of bias?” Hurwitz asked.
“The executive order is irrelevant,” Kambli said flatly. “We focus solely on the policy.”
A fight over constitutional scrutiny
Sasha Buchert, senior counsel at Lambda Legal, represented the plaintiffs, whose combined military experience spans decades and every branch of service. She told the court the policy “targets transgender people, not a medical condition.” Each of her clients, she said, “has served with distinction, and yet they face discharge, not because of their performance, but because the president labeled transgender people as inherently unfit.”
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Among those being represented by Buchert is Emily Shilling, a decorated U.S. Navy officer and the lead plaintiff in the case. Shilling has served for more than a decade and was among the first active-duty service members to come out as transgender after the Obama administration lifted the original ban in 2016. She has deployed multiple times overseas and earned commendations for leadership and performance. In her declaration to the court, Shilling said the renewed ban “strips away my dignity and my ability to serve my country as my authentic self,” arguing that her record “proves that being transgender is no obstacle to military readiness.”
When Hurwitz asked whether the plaintiffs’ challenge was too broad, Buchert replied, “Every transgender person in the military is affected and harmed by this policy.” She said existing neutral standards already ensure readiness “without excluding an entire class of people.”
Statements from advocates
In a statement released after oral arguments, Lambda Legal and the Human Rights Campaign Foundation called on the Ninth Circuit to affirm the lower court’s injunction blocking what they described as “the so-called ‘Hegseth Policy,’” which prohibits all transgender people from serving and mandates the discharge of thousands of service members.
“Today we asked the Ninth Circuit to uphold the preliminary injunction the district court correctly had put in place for transgender service members who strengthen our nation's armed forces,” Buchert said in the statement. “Every day this discriminatory ban remains in effect, qualified patriots face the threat of being kicked out of the military simply because of who they are. The evidence is overwhelming that this policy is driven by animus rather than military necessity — there is no credible evidence that transgender service members harm military readiness, unit cohesion, or effectiveness.”
Kelley Robinson, president of the Human Rights Campaign Foundation, added that the policy “is cruel, unpatriotic, and compromises the unity and quality of our armed forces. This is animus, plain and simple — and we expect the Ninth Circuit will agree that these blatantly discriminatory policies have no place in our military.”
What the court must decide
Much of the hearing focused on what standard of review, known as a level of scrutiny, should apply.
Under rational-basis review, the government must show only that a policy is reasonably related to a legitimate purpose, a test that generally grants broad deference to military decision-making. By contrast, intermediate scrutiny requires the government to prove that a policy serves an important objective and that the means chosen are substantially related to achieving it. The Ninth Circuit has previously applied that higher standard to cases involving discrimination against transgender people, reasoning that such distinctions are inherently sex-based.
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Judge Consuelo Callahan, appointed by former President George W. Bush, noted that the U.S. Supreme Court has not explicitly recognized transgender people as a protected class, leaving uncertainty about which standard controls. “We don’t really know what the Supreme Court’s going to do,” she said, referencing pending appeals from other circuits involving gender-affirming care and military service.
Kambli argued the policy would survive either standard because it rests on “professional judgment concerning readiness, unit cohesion, and discipline.” Christen appeared unconvinced. “At the time of the prior policy, the record only included predictive evidence,” she said, adding that years of open service under former President Joe Biden “produced data showing folks serving openly… without incident.”
Buchert countered that the Pentagon “went outside the normal issuance process” and relied on “outdated studies from the Mattis-era policy.” The Mattis policy was developed by then Defense Secretary James Mattis, under the first Trump administration, and barred transgender people from joining the military but allowed those who were already serving to continue. The policy did not study how transgender people were affecting the military.
The Trump administration, Buchert said, did not base its ban on any actual studies regarding trans people's service. “There have been hundreds, if not thousands, of transgender service members,” she said. “There’s all kinds of data at their fingertips.”
The broader implications
Twenty states, including Oregon, Washington, California, and New York, filed an amicus brief siding with the plaintiffs, arguing the ban undermines national security by excluding qualified individuals for reasons unrelated to merit. The Constitutional Accountability Center submitted another brief likening the policy to earlier exclusions of women and gay Americans from the military.
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Christen tested the government’s reasoning with a hypothetical: “Why couldn’t the military say, all of a sudden, now, 'We were wrong. No women in the military'?” Kambli conceded there “would be serious concerns,” but argued gender dysphoria is “a medical condition,” not an identity category.
What happens next?
The Ninth Circuit is expected to rule on Shilling v. Trump in the coming months. If the court upholds a preliminary injunction issued by U.S. District Judge Benjamin Settle in Seattle, the ban will remain blocked nationwide. If not, it will stay in force as the case moves toward a Supreme Court now sharply divided over the meaning of equal protection.
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