Judge hints at federal class action, orders DOJ evidence in trans military ban case

A federal judge on Monday ordered the Trump administration to turn over the evidence behind its restrictions on transgender military service members, while laying the groundwork for a potential class action that could extend the case’s protections to transgender troops across the armed forces.

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The hearing in Talbott v. United States had originally been scheduled to take place in person at the federal courthouse in Washington, D.C. But Judge Ana Reyes moved the proceeding online due to forecasts of widespread severe weather across the capital region.

Reyes granted in part the plaintiffs’ request to move the case forward and denied, for now, a government motion seeking to halt proceedings while the litigation continues on appeal.

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In an electronic order issued after the hearing, the judge directed the government to produce, by April 30, the certified administrative record underlying the policy, as well as the internal materials and evidence officials relied on in crafting the restrictions. She also ordered the government to provide the same documents it is producing in a related case, Shilling v. United States, pending in federal court in Washington state.

At the same time, Reyes set a schedule for a briefing on whether the case should proceed as a class action representing transgender service members more broadly. The parties must propose a briefing schedule by March 20, with arguments on class certification to conclude by June 12. A hearing on the issue is expected the week of June 29.

The lawsuit was filed by transgender service members and prospective recruits who say the administration’s policy, which treats sex as fixed at birth for military service and restricts many transgender people from serving, violates constitutional protections against discrimination.

Reyes previously issued a preliminary injunction nationwide blocking the policy. The administration appealed that ruling to the U.S. Court of Appeals for the D.C. Circuit, where the matter remains pending.

During the hearing, Reyes also suggested that government lawyers should notify the appellate court about a key development in the case. She pointed to earlier representations by the Justice Department during arguments at the U.S. Court of Appeals for the D.C. Circuit that no transgender service members had yet been separated from the military under the policy. Reyes said that if separation notices have since been issued, as the plaintiffs’ attorneys indicated, the government should inform the court of the change. Lawyers for the transgender plaintiffs had accused the DOJ of misleading the appeals court when one of the attorneys told judges that nobody had been separated from the armed services under the policy.

Monday’s hearing unfolded largely as a procedural check-in, but Reyes repeatedly pressed lawyers about why the plaintiffs waited months to ask the court to move the litigation forward while the appeal continued.

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She also raised questions about how the U.S. Supreme Court’s decision last year in Trump v. CASA, Inc. could affect the scope of relief available in the case. That ruling has been interpreted as limiting when federal judges may issue nationwide remedies, potentially requiring plaintiffs to proceed as a certified class if they seek broad relief.

Without class certification, Reyes suggested, the court could be limited to granting relief only to the specific plaintiffs before it. Even so, lawyers representing the transgender service members said the hearing marked a meaningful step toward resolving the legality of the policy.

“Today was a meaningful step forward for transgender service members challenging the ban,” Shannon Minter, legal director of the National Center for LGBTQ+ Rights and lead co-counsel on the case, told The Advocate after the hearing.

“Judge Reyes indicated initial support for potentially certifying a class of transgender service members, a measure that could provide the protection needed for transgender troops and their families,” Minter said. “She also ordered the government to produce any initial evidence that they claim supports the ban. Despite posturing from this administration, the question of whether this ban can move forward is far from settled.”