Nicolas Talbott v. USA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 25-5087 September Term, 2025

1:25-cv-00240-ACR

Filed On: December 9, 2025

Nicolas Talbott, et al.,

Appellees

v.

United States of America, et al.,

Appellants

BEFORE: Pillard*, Katsas, and Rao, Circuit Judges

ORDER

Upon consideration of the emergency motion for stay pending appeal, the

opposition thereto, and the reply; the Rule 28(j) letters, and the responses thereto; and

the letter request to lift the administrative stay, and the response thereto, it is

ORDERED that the administrative stay entered on March 27, 2025, be dissolved.

It is

FURTHER ORDERED that the motion for stay pending appeal be granted. A

concurring statement of Circuit Judge Katsas, joined by Circuit Judge Rao, and a

dissenting statement of Circuit Judge Pillard are attached.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Selena R. Gancasz

Deputy Clerk

* Circuit Judge Pillard would deny the motion for stay pending appeal.

KATSAS, Circuit Judge, joined by RAO, Circuit Judge:

The United States military enforces strict medical standards to

ensure that only physically and mentally fit individuals join its

ranks. For decades, these requirements barred service by

individuals with gender dysphoria, a medical condition

associated with clinically significant distress. This bar was

partially relaxed in 2016, revived in 2018, partially relaxed

again in 2021, and revived again in 2025. District courts

preliminarily enjoined the 2018 revival as a likely violation of

equal-protection principles, but this Court vacated one of those

injunctions, and the Supreme Court stayed two others. This

case presents equal-protection challenges to the 2025 revival.

The 2025 policy generally bars individuals with gender

dysphoria from serving in the Armed Forces. The Secretary of

Defense concluded that this policy would advance important

military interests of combat readiness, unit cohesion, and cost

control. In doing so, he consulted materials compiled to assess

the 2016 and 2018 policy changes, as well as more recent

studies regarding the impacts of gender dysphoria on those

with the condition and on their military service. The district

court nonetheless preliminarily enjoined the 2025 policy based

on its own contrary assessment of the evidence.

In our view, the court afforded insufficient deference to the

Secretary’s considered judgment. Accordingly, we stay the

preliminary injunction pending the government’s appeal.

I

A

To join and remain in the United States military, service

members must meet strict medical standards. Lengthy

Department of Defense documents set out the requirements.

2

Add. 1301; see, e.g., Dep’t of Def. Instruction 6130.03, Vol. 1,

Medical Standards for Military Service: Appointment,

Enlistment, or Induction (May 2024), https://perma.cc/J67Q-

982F (“DoD Accession Standards”); Dep’t of Def. Instruction

6130.03, Vol. 2, Medical Standards for Military Service:

Retention (June 2022), https://perma.cc/WFQ3-F229 (“DoD

Retention Standards”).

Hundreds of medical conditions are “disqualifying” for

accession to military service. DoD Accession Standards at 13–

54. They run the gamut from poor vision, poor hearing,

asthma, and high blood pressure to various abdominal, heart,

lung, neurologic, urinary, vascular, and other deficiencies. See

id. at 13–50. Many mental-health conditions are also

disqualifying. These include bipolar disorders, eating

disorders, substance-related disorders, obsessive-compulsive

disorder, and depression or anxiety disorders under certain

conditions. See id. at 50–52. The military traditionally has

aligned these disqualifying mental-health conditions with those

listed in the Diagnostic and Statistical Manual of Mental

Disorders (DSM), a diagnostic and treatment manual published

by the American Psychiatric Association. See Doe 2 v.

Shanahan, 917 F.3d 694, 709 (D.C. Cir. 2019) (Williams, J.,

concurring in the result).

These requirements advance many military objectives.

Among other things, they ensure that service members can

complete required training, serve in harsh or remote

environments, and perform their duties as safely as possible.

DoD Accession Standards at 5. The standards also reduce the

1

“Add.” citations refer to the government’s addendum, while

“App.” citations refer to the plaintiffs’ appendix.

3

risk that service members will “require excessive time lost

from duty” for medical reasons. Id. at 4.

B

This case involves application of these principles to gender

dysphoria, a medical condition experienced by certain

transgender individuals. The term “transgender” describes an

individual whose self-perceived gender is incongruent with his

or her biological sex. Am. Psychiatric Ass’n, Diagnostic and

Statistical Manual of Mental Disorders 511 (5th ed. Text

Revision 2022) (“DSM-5”). A subset of transgender

individuals experience “gender dysphoria,” a psychological

condition stemming from such an incongruence. See id. at

512–13. Gender dysphoria “is associated with clinically

significant distress or impairment in social, occupational, or

other important areas of functioning.” Id. at 513. Individuals

with gender dysphoria often seek specialized treatment,

including hormone therapy, surgery, or other substantial

interventions. See id. For example, women with gender

dysphoria may take testosterone to induce hair growth, a

deepened voice, and increased muscle mass. They also may

undergo surgery to remove their breasts or change the

appearance of their genitalia. Men with gender dysphoria may

seek comparable hormonal or surgical interventions.

Before 2016, the medical standards discussed above

broadly barred transgender individuals from military service.

Add. 125; see Doe 2, 917 F.3d at 696–97 (Wilkins, J.,

concurring). Over the last decade, however, the governing

rules have changed repeatedly. One way or another, recent

standards all distinguish between transgender individuals and

individuals with gender dysphoria.

4

1

In June 2016, Secretary of Defense Ashton Carter issued a

policy permitting military service by transgender individuals

not suffering from gender dysphoria. App. 17 (“Carter

Policy”). For individuals seeking to join the military, a “history

of gender dysphoria [was] disqualifying” unless a licensed

medical provider certified that the individual had been “stable

without clinically significant distress or impairment in social,

occupational, or other important areas of functioning for 18

months.” Id. at 20. Likewise, a “history of medical treatment

associated with gender transition [was] disqualifying” unless a

medical provider certified that the treatment had concluded and

that the individual had been clinically stable for 18 months. Id.

For individuals already serving in the military, the policy

permitted “[g]ender transition” despite noting that it “presents

unique challenges” for “military mission and readiness needs.”

Id. at 21.

In significant part, the Carter Policy rested on a report by

the RAND Corporation, which recommended that transgender

individuals be permitted to serve in the Armed Forces. App.

116 (“RAND Report”). Despite reaching this conclusion, the

RAND Report included significant caveats. It flagged as a

“critical limitation” the “lack of rigorous epidemiological

studies of the size or health care needs of either the U.S.

transgender population or the transgender population serving

in the military.” Id. at 138. Likewise, it acknowledged a lack

of data “from which to estimate” how many transgender

individuals have gender dysphoria. Id. at 141. Regardless, the

report found that hormone treatments make an individual

undeployable for a year. See id. at 202. But it discounted this

concern based on an assertion that “only a small proportion” of

transgender service members would seek the treatment in any

given year. Id. at 204.

5

After instituting the new policy, Secretary Carter issued a

71-page “implementation handbook” addressing “some of the

issues” posed for military commanders. U.S. Dep’t of Defense,

Transgender Service in the U.S. Military: An Implementation

Handbook at 1, 8 (Sept. 30, 2016), https://perma.cc/B9NH-

6YVT (“Carter Handbook”). Among other things, the

handbook asked commanders to evaluate whether any

“treatment plan” would cause “impacts to the mission

(including deployments, operations, training and exercises).”

Id. at 53. It discussed deployment to any nation that “view[s]

transgender people as culturally unacceptable,” requiring

commanders to consider reassignment and to “[p]roceed with

caution for the safety of the Service member.” Id. at 69. It

anticipated “discomfort” from service members not wanting to

share showers, bathrooms, and other living facilities with

individuals of the opposite sex. Id. at 60, 64. And it flagged

fairness concerns if a transitioning service member could not

meet the physical standards established for his or her “preferred

gender.” Id. at 48–49.

2

In August 2017, President Trump ordered reconsideration

of the Carter Policy. As the President saw it, Secretary Carter

had “failed to identify a sufficient basis to conclude that

terminating” the prior “longstanding policy and practice would

not hinder military effectiveness and lethality, disrupt unit

cohesion, or tax military resources.” Military Service by

Transgender Individuals, 82 Fed. Reg. 41,319, 41,319 (Aug.

30, 2017). The President reinstated the previous accession

policy pending further study, and he substantially restricted

government funding for “sex-reassignment surgical

procedures.” Id. For individuals already serving in the

military, he delayed any changes until Secretary of Defense

James Mattis could implement a new policy. Id. at 41,319–20.

6

In February 2018, Secretary Mattis issued a policy titled

“Military Service by Transgender Individuals.” Add. 119

(“Mattis Policy”). This policy barred from military service

individuals who would require or had undergone “gender

transition.” Id. at 120. Likewise, it barred individuals with a

history of “gender dysphoria” from joining the military unless

they had been “stable for 36 consecutive months in their

biological sex prior to accession.” Id. Service members

diagnosed with gender dysphoria after joining could continue

to serve if they “d[id] not require a change of gender and

remain[ed] deployable.” Id. Service members diagnosed with

gender dysphoria while the Carter Policy remained in effect

could continue serving “in their preferred gender” and

receiving “medically necessary treatment.” Id. Transgender

individuals without a history of gender dysphoria could join

and serve “in their biological sex.” Id. at 121.

The Mattis Policy rested on the “professional military

judgment” of “senior uniformed and civilian Defense

Department and U.S. Coast Guard leaders.” Add. 119. It also

rested on recommendations set forth in a Defense Department

report reflecting “input from transgender Service members,

commanders of transgender Service members, military medical

professionals, and civilian medical professionals with

experience in the care and treatment of individuals with gender

dysphoria.” Id. at 119–20; see id. at 122–66 (“Mattis Report”).

Based on this information, Secretary Mattis concluded that the

RAND Report “contained significant shortcomings.” Id. at

120. Specifically, it relied on “limited and heavily caveated

data to support its conclusions, glossed over the impacts of

healthcare costs, readiness, and unit cohesion, and erroneously

relied on the selective experiences of foreign militaries with

different operational requirements than our own.” Id.

7

These actions spurred litigation. Before Secretary Mattis

issued his policy, four district courts enjoined portions of

President Trump’s memorandum. Doe 1 v. Trump, 275 F.

Supp. 3d 167, 177 (D.D.C. 2017); Stone v. Trump, 280 F. Supp.

3d 747, 769 (D. Md. 2017); Karnoski v. Trump, No. 17-cv-

1297, 2017 WL 6311305, at *10 (W.D. Wash. Dec. 11, 2017);

Stockman v. Trump, No. 17-cv-1799, 2017 WL 9732572, at

*16 (C.D. Cal. Dec. 22, 2017). After Secretary Mattis issued

his policy, we granted the government’s motion to dissolve one

of those injunctions. Doe 2 v. Shanahan, 755 F. App’x 19, 22

(D.C. Cir. 2019). We held that the Mattis Policy “plausibly

relied upon the considered professional judgment of

appropriate military officials and appeared to permit some

transgender individuals to serve in the military.” Id. at 25

(cleaned up). Soon after our decision, the Supreme Court

stayed two of the other injunctions against the presidential

memorandum and interim guidance. Trump v. Karnoski, 586

U.S. 1124 (2019); Trump v. Stockman, 586 U.S. 1124 (2019).

The fourth district court then followed suit. See Stone v.

Trump, No. 17-cv-2459, 2019 WL 5697228, at *3 (D. Md.

Mar. 7, 2019). With these stays in place, challenges to the

presidential memorandum and the Mattis Policy fizzled out.

The Mattis Policy thus remained in force from January 2019

until President Biden assumed office in January 2021.

3

Upon taking office, President Biden issued an executive

order shifting the policy once again. Enabling All Qualified

Americans to Serve Their Country in Uniform, 86 Fed. Reg.

7,471 (Jan. 28, 2021). President Biden directed Defense

Secretary Lloyd Austin to “immediately prohibit involuntary

separations, discharges, and denials of reenlistment or

continuation of service on the basis of gender identity.” Id. at

7,472. And he directed military officials to “establish[] a

8

process by which transgender service members may transition

gender while serving.” Id.

In April 2021, the Department of Defense issued new

guidance. App. 49; see also Dep’t of Def. Instruction 6130.03,

Vol. 1, Medical Standards for Military Service: Appointment,

Enlistment, or Induction (Apr. 2021), https://perma.cc/3W6K-

2XHW (“2021 DoD Accession Standards”) (collectively

“Austin Policy”). The Austin Policy largely restored the Carter

Policy, disqualifying gender-dysphoric individuals from

acceding unless they had been “stable without clinically

significant distress or impairment in social, occupational, or

other important areas of functioning for 18 months.” 2021

DoD Accession Standards at 48. But the Austin Policy

permitted “in-service transition,” App. 49, while recognizing

that it poses “unique challenges” to “military mission and

readiness,” id. at 55.

4

Upon returning to office, President Trump revoked the

Biden executive order. Prioritizing Military Excellence and

Readiness, 90 Fed. Reg. 8,757, 8,757 (Feb. 3, 2025). President

Trump cited longstanding DoD guidance requiring service

members to be “free of medical conditions” that may “require

excessive time lost from duty.” Id. (cleaned up). He further

emphasized that the Armed Forces “must adhere to high mental

and physical health standards” to ensure that they can “deploy,

fight, and win, including in austere conditions and without the

benefit of routine medical treatment or special provisions.” Id.

And he concluded that these high standards are “inconsistent

with the medical, surgical, and mental health constraints on

individuals with gender dysphoria.” Id. The President directed

Defense Secretary Pete Hegseth to update the military’s

medical standards accordingly. See id. at 8,757–58.

9

Secretary Hegseth issued various memoranda

disqualifying from military service individuals with a diagnosis

of, history of, or symptoms “consistent with” gender dysphoria.

Add. 99–109, 113–16, 198–202 (collectively “Hegseth

Policy”). For purposes of the policy, symptoms “consistent

with” gender dysphoria means symptoms that “would be

sufficient to constitute a diagnosis.” Id. at 200 n.2. In limited

circumstances, the policy allows gender-dysphoric individuals

to apply for a waiver to join or remain in the military. Id. at

198–99.

Several studies and reviews undergird the Hegseth Policy.

These include the Mattis Policy and Report, a 2021 DoD study

analyzing appropriate accession standards for transgender

individuals, a 2025 literature review on the efficacy of

hormonal or surgical treatments for gender dysphoria, and a

review of cost data for treating gender-dysphoric service

members through 2024. Add. 115–16.

C

Plaintiffs are transgender individuals with gender

dysphoria diagnoses. Most of them are active-duty service

members. They contend that the Hegseth Policy violates equal-

protection principles incorporated into the Fifth Amendment.

The district court preliminarily enjoined the Hegseth

Policy. The court concluded that intermediate scrutiny was

appropriate because the policy assertedly discriminates based

on sex and transgender status. Talbott v. United States, 775 F.

Supp. 3d 283, 316–22 (D.D.C. 2025). The court further held

that the policy was unlikely to survive intermediate scrutiny.

See id. at 322–26. Alternatively, the court held that the policy

was motivated by animus toward transgender individuals and

thus would fail even rational-basis scrutiny. See id. at 326–29.

10

And it found that the equitable factors favored the plaintiffs.

See id. at 332–34.

The government appealed the preliminary injunction and

moved for a stay. While that motion was pending, the Supreme

Court stayed a preliminary injunction against the Hegseth

Policy entered by the Western District of Washington. United

States v. Shilling, 145 S. Ct. 2695 (mem.) (May 6, 2025). Soon

after, the Supreme Court held that a law prohibiting the use of

hormones to treat gender dysphoria in minors does not

discriminate based on sex or transgender status and survives

rational-basis review. United States v. Skrmetti, 605 U.S. 495,

510–25 (2025).

II

The grant of a stay pending appeal depends on whether

(1) the appellant has made a strong showing that it will prevail

on the merits; (2) the appellant will be irreparably harmed

absent a stay; (3) issuance of the stay will substantially harm

plaintiffs or others; and (4) the stay is in the public interest.

Nken v. Holder, 556 U.S. 418, 425–26 (2009). Applying these

factors, a stay is warranted.

A

The Hegseth Policy likely does not violate equal

protection. We doubt that the policy triggers any form of

heightened scrutiny. In Skrmetti, the Supreme Court held that

a law prohibiting the use of hormones to treat gender dysphoria

in minors “classifies on the basis of medical use” and thus does

not discriminate based on either sex or transgender status. See

605 U.S. at 510–19. The same reasoning would seem to cover

the Hegseth Policy, which classifies based on the medical

condition of gender dysphoria. Skrmetti also casts significant

doubt on the proposition that a classification based on

11

transgender status would trigger heightened scrutiny. See id.

at 517 (“This Court has not previously held that transgender

individuals are a suspect or quasi-suspect class.”); id. at 557

(Barrett, J., concurring) (“The Equal Protection Clause does

not demand heightened judicial scrutiny of laws that classify

based on transgender status.”); id. at 558 (Alito, J., concurring

in part and concurring in the judgment) (classification based on

transgender status “does not warrant heightened scrutiny”).

Even if the Hegseth Policy contained a classification

triggering some form of heightened scrutiny, decades of

precedent establish that the judiciary must tread carefully when

asked to second-guess considered military judgments of the

political branches. And we must do so even in cases involving

sex-based or other quasi-suspect classifications. Moreover, the

Supreme Court already has held that the government is likely

to succeed on its contention that the Hegseth Policy does not

violate equal protection. Shilling, 145 S. Ct. at 2695. And this

Court, applying settled doctrines of deference to the military,

has strongly suggested that the Mattis Policy did not violate

equal protection. See Doe 2, 755 F. App’x at 25. Given these

decisions, and for reasons summarized below, the Hegseth

Policy is likely constitutional.

1

The Constitution vests the “complex, subtle, and

professional decisions as to the composition, training,

equipping, and control of a military force” in the political

branches. Gilligan v. Morgan, 413 U.S. 1, 10 (1973). For

example, Article II makes the President the Commander in

Chief, U.S. Const. Art. II, § 2, cl. 1, while Article I gives

Congress the power to declare war and make rules for the

Armed Forces, id. Art. I, § 8, cls. 11, 14. So, the President and

Congress have primary responsibility for the “delicate task of

12

balancing the rights of servicemen against the needs of the

military.” Loving v. United States, 517 U.S. 748, 767 (1996)

(cleaned up).

Given this allocation of powers, the judicial branch must

be “reluctant to intrude upon the authority of the Executive in

military and national security affairs.” Dep’t of Navy v. Egan,

484 U.S. 518, 530 (1988); see Orloff v. Willoughby, 345 U.S.

83, 93–94 (1953) (“judges are not given the task of running the

Army”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 645 (1952) (Jackson, J., concurring) (courts should give

the President, as Commander-in-Chief, “the widest latitude …

to command the instruments of national force”). Indeed, it is

“difficult to conceive of an area of governmental activity in

which the courts have less competence.” Rostker v. Goldberg,

453 U.S. 57, 65 (1981) (quoting Gilligan, 413 U.S. at 10).

Our review of constitutional challenges to military rules

thus “is far more deferential than constitutional review of

similar laws or regulations designed for civilian society.”

Goldman v. Weinberger, 475 U.S. 503, 507 (1986). In the

military context, courts consider whether the policy at issue

resulted from the professional judgment of military authorities

and reasonably furthers legitimate military interests. Id.

Moreover, we must respect the military’s judgment on “the

relative importance of a particular military interest.” Id.

Courts “must be particularly careful not to substitute our

judgment of what is desirable … or our own evaluation of

evidence for a reasonable evaluation” by the political branches.

Goldberg, 453 U.S. at 68.

Consider two leading precedents in this area. In Goldberg,

the Supreme Court rejected an equal-protection challenge to a

statute compelling men but not women to register for the draft.

453 U.S. at 59, 83. The Court stressed that Congress had made

13

a considered judgment that this classification minimized

“burdens” and “administrative problems” involving

“housing … and physical standards,” while promoting “the

important goal of military flexibility.” Id. at 81–82. In the

“context of military preparedness and the exigencies of a future

mobilization,” the Court refused to “dismiss such problems as

insignificant.” Id. at 81. In Goldman, the Court similarly

rejected a free-exercise challenge to a military regulation

restricting the wearing of yarmulkes. 475 U.S. at 509–10. The

Court declined to apply the heightened scrutiny normally used

to assess First Amendment claims. See id. at 506–07. Instead,

it took a “far more deferential approach” than it would have if

the restriction had been “designed for civilian society.” Id. at

507. Citing Goldberg, the Court confirmed that “judicial

deference is at its apogee” when the political branches make

“rules and regulations for [military] governance.” Id. at 508

(cleaned up). The Court thus credited the “professional

judgment of military authorities” that the restriction advanced

legitimate goals including “obedience, unity, commitment, and

esprit de corps.” Id. at 507.

Of course, the Constitution binds the government in the

realm of military affairs. See Goldberg, 453 U.S. at 67; Parker

v. Levy, 417 U.S. 733, 758 (1974). As we have noted, “the cost

of military service has never entailed the complete surrender of

all basic rights.” Singh v. Berger, 56 F.4th 88, 92 (D.C. Cir.

2022) (cleaned up). Particularly when Congress has mandated

heightened scrutiny, a military policy may be found unlawful

where, for example, it is riddled with unexplained exemptions

for some but not others. See id. at 98–107 (applying the

Religious Freedom Restoration Act). But even then, courts

must afford deference to the executive’s considered judgment

that a military policy furthers legitimate interests. See id. at

98–99.

14

2

The Hegseth Policy is likely constitutional because it

reflects a considered judgment of military leaders and furthers

legitimate military interests.

a

The Hegseth Policy reflects the considered judgment of

the Secretary of Defense and military leaders in the Defense

Department. The policy was informed by “existing and prior

DoD policy, and prior DoD studies and reviews of service by

individuals with gender dysphoria, including a review of

medical literature regarding the medical risks associated with

[the] presence and treatment of gender dysphoria.” Add. 115.

In significant part, the Hegseth Policy relied on the Mattis

Policy, which “conclude[d] that there are substantial risks

associated with allowing accession and retention of individuals

with a history or diagnosis of gender dysphoria.” Id. (Hegseth

Policy) (quoting id. at 120 (Mattis Policy)). In turn, the Mattis

Policy “was informed by an extensive inquiry conducted by a

panel of experts” who considered the views of many

stakeholders, including transgender service members and their

commanders. Id. at 115 (Hegseth Policy); see id. at 119 (Mattis

Policy). And we previously concluded that, because the Mattis

Policy relied on the considered judgment of military officials,

the government had “substantial arguments” that it complied

with equal-protection principles. Doe 2, 755 F. App’x at 25.

The Hegseth Policy also relied on more recent materials,

including a 2021 study addressing appropriate accession

standards for transgender individuals, a 2025 literature review

on the efficacy of treatments for gender dysphoria, and a

review of cost data for treating gender dysphoria. Add. 115–

16. The 2021 study suggested that up to 40 percent of

individuals with a gender dysphoria diagnosis would be

15

“deemed non-deployable due to mental health reasons at some

time during the 24 months following initial diagnosis.”

Talbott, No. 25-cv-240, Dkt. No. 86-1, at 15 (D.D.C. Mar. 17,

2025) (“AMSARA Study”). The 2025 literature review

indicated that transgender individuals are far more likely than

others “to receive a psychiatric diagnosis” of mood disorders,

anxiety disorders, or psychotic disorders, with a suicide attempt

rate 13 times higher than that for non-transgender individuals.

Add. 189. The literature review also found that the “strength

of the evidence” supporting the efficacy of hormonal or

surgical treatments for gender dysphoria is “low to moderate.”

Id. at 189–93. And the cost data indicated that, between 2015

and 2024, DoD spent over $52 million providing treatment for

gender dysphoria to active-duty service members. Id. at 116.

b

The government identifies several legitimate military

interests that the Hegseth Policy advances.

Chief among them is military readiness. On its face, the

policy applies only to individuals with gender dysphoria, a

medical condition that involves “clinically significant distress

or impairment in social, occupational, or other important areas

of functioning.” DSM-5 at 513. Secretary Hegseth had before

him evidence that treatments for gender dysphoria would limit

deployability and may not be effective. AMSARA Study at 15;

Add. 189–93. His predecessors unanimously agreed that these

concerns are serious ones: The Carter and Austin Policies

barred accession by individuals with a history of gender

dysphoria unless they had been “stable without clinically

significant distress or impairment” for 18 months, App. 20;

2021 DoD Accession Standards at 48, while the Mattis Policy

drew the line at 36 months, Add. 120. The Mattis Report noted

that individuals “receiving hormone therapy and surgery”

16

could not deploy to “austere environments where their

healthcare needs cannot be met,” which showed that “the

inclusion of individuals with gender dysphoria in the force will

have a negative impact on readiness.” Id. at 156. The Carter

implementation handbook also anticipated “impacts to the

mission (including deployment, operations, training, exercise

schedules, and critical skills availability)” from both treatment

requirements and international cultural constraints. See, e.g.,

Carter Handbook at 14, 29, 48, 69. Even the RAND Report,

despite recommending that individuals with gender dysphoria

be allowed to serve, recognized that hormone treatments could

render them unable to deploy for a year. App. 202.

The Hegseth Policy also rests on concerns about unit

cohesion and good order. The military’s interest in “fostering

cohesion and unity among its members” is “surely” a

“compelling” one. Singh, 56 F.4th at 99. And even when

applying strict scrutiny, we must “indulge the widest latitude

in considering” interests based on an asserted need for unit

cohesion. Id. (cleaned up).

One such interest involves the privacy of service members

who, as the Mattis Report explained, must “live in extremely

close proximity to one another when sleeping, undressing,

showering, and using the bathroom.” Add. 159. To protect

privacy, Congress has required the military to provide separate

housing for male and female service recruits. See, e.g., 10

U.S.C. §§ 7419 (Army), 8431 (Navy), 9419 (Air Force). Even

beyond statutory requirements, the military “has long

maintained separate berthing, bathroom, and shower facilities

for men and women.” Add. 159. Distinctions like these—

keyed to biological differences between the sexes—are

unquestionably constitutional. As Justice Ginsburg explained

for the Supreme Court, it is not only permissible, but indeed

“necessary to afford members of each sex privacy from the

17

other sex in living arrangements.” United States v. Virginia,

518 U.S. 515, 550 n.19 (1996). And as Judge Williams later

elaborated, in explaining why the Mattis Policy likely did not

violate equal protection, “there is no constitutional right for,

say, biological males who identify as female to live, sleep,

shower, and train with biological females.” Doe 2, 917 F.3d at

707–08 (Williams, J., concurring in the result). The Mattis

Report and Carter implementation handbook both

acknowledge that allowing gender-dysphoric individuals to

serve consistent with their perceived gender identity, as

opposed to their biological sex, would impinge on these

privacy interests in intimate, communal living spaces. Add.

159 (Mattis Report); Carter Handbook at 60 (issues with “open

bay shower configuration”); id. at 63–65 (sleeping areas).

The Hegseth Policy also implicates the military’s sex-

based standards for physical fitness. As the Mattis Report

explained, “to allow biological males who identify as female to

be held to female standards” would raise concerns of unfairness

and discrimination. Add. 158. Among other things, such

individuals would gain competitive advantages over other

males held to the male strength and fitness standards. See id.

Likewise, females required to compete against such individuals

would be disadvantaged. See id. “Even more importantly, in

physically violent training and competition, such as boxing and

combatives, pitting biological females against biological males

who identify as female, and vice versa, could present a serious

safety risk as well.” Id. We cannot lightly dismiss these

concerns.

Finally, the Hegseth Policy cited cost issues, noting that

the military had spent more than $52 million on treating service

members with gender dysphoria between 2015 and 2024. Add.

116. The Mattis Report likewise cited cost concerns. It noted

that after the Carter Policy was implemented, medical costs for

18

service members with gender dysphoria increased nearly three

times as much as did costs for service members who did not

have gender dysphoria. Id. at 163. Moreover, it noted that

units sometimes had to use “operations and maintenance funds

to pay for” the “specialized medical care” needed by gender-

dysphoric service members. Id.

c

The district court held that the Hegseth Policy does not

advance these interests. In our view, it gave no sound reason

for overriding the Secretary’s considered judgment.

The court dismissed the Mattis Policy and Report as

“outdated.” Talbott, 775 F. Supp. 3d at 325. The court

concluded that in 2018, when Secretary Mattis issued his

report, “medical literature concerning the study and treatment

of gender dysphoria” was “in a state of flux.” Id. at 303

(cleaned up). But, the court continued, “medical studies now

overwhelmingly conclude that gender dysphoria is highly

treatable.” Id. at 304. In support, the court cited a declaration

from one doctor who simply stated, in one sentence and

without citations, that “gender dysphoria is ‘highly treatable.’”

Id. (citing Decl. of George Brown at 4, Dkt. No. 72-77).

We are wary of such a sweeping conclusion. For one

thing, the Mattis Report reflects a thorough assessment of

evidence available as of 2018, not much time has passed since

then, and we are skeptical that the constitutionality of a military

policy ebbs and flows as new medical studies emerge every few

years. For another, the Hegseth Policy did consider more

recent studies, which provide further support for its restrictions.

To reiterate, the policy rests in part on a 2021 DoD study

suggesting that up to 40 percent of individuals being treated for

gender dysphoria may become non-deployable at some point

over a two-year period, AMSARA Study at 15, and a 2025

19

literature review finding that transgender individuals are more

likely than others to suffer various mental-health issues, Add.

188, and that the “strength of the evidence” supporting

hormonal or surgical treatment for gender dysphoria is “low to

moderate,” id. at 189–93. Moreover, at least with respect to

adolescents, evidence regarding treatment efficacy may be

even less settled today than it was a few years ago. See

Skrmetti, 605 U.S. at 524 (“Recent developments only

underscore the need for legislative flexibility in this area.”); id.

at 532–40 (Thomas, J., concurring); Br. of Alabama as Amicus

Curiae at 28–32, Skrmetti, 605 U.S. 495 (Oct. 15, 2024). Given

all this, the military was not constitutionally required to credit

plaintiffs’ side of a fraught medical divide. Finally, the

Hegseth Policy advances some interests that do not turn on

medical questions at all. For example, the military continues

to observe sex-based distinctions for sleeping areas and

physical competitions. And the privacy and safety interests

advanced by these standards do not turn on whether gender

dysphoria is more treatable today than it was seven years ago.

The district court also conducted a searching review of the

post-2018 studies relied on by DoD. Talbott, 775 F. Supp. 3d

at 301–08, 322–25. We find many of its criticisms

unpersuasive. For example, as to the 2021 study, the court

concluded that a 40 percent non-deployability rate was “not

informative” without knowing the comparable rate for non-

transgender individuals. Id. at 304. But with accession

standards that screen out everything from asthma to high blood

pressure, it strains credulity to suppose that military-wide

averages for non-deployability would be anywhere near two

out of five. Next, the district court downplayed the 2025

literature review because it addressed all gender-dysphoric

individuals, rather than only those serving in the military. Id.

at 305. But that broader focus surely understates the challenges

faced by gender-dysphoric individuals in the military, where

20

life is often more stressful and demanding than it is for

civilians. The court further downplayed evidence of greater

mental-health issues faced by transgender individuals as

reflecting “external factors.” Id. Maybe so, but that says little

about the cost to the military from taking on individuals who

have a medical diagnosis associated with significant mental

distress. To be sure, the district court fairly noted that the 2021

study and the 2025 literature review contain some evidence

cutting in favor of permitting service by individuals with

gender dysphoria. Id. at 303–06. But the RAND Report that

informed the Carter Policy likewise contained cross-cutting

conclusions. Again, the military is entitled to substantial

deference in setting risk tolerances and evaluating conflicting

evidence bearing on matters like force composition. See, e.g.,

Trump v. Hawaii, 585 U.S. 667, 707–08 (2018); Goldman, 475

U.S. at 507; Goldberg, 453 U.S. at 70–72; Doe 2, 917 F.3d at

728 (Williams, J., concurring in the result). Here, the evidence

supporting the Hegseth Policy was more than sufficient to

support the choices made.

3

The district court also held that the Hegseth Policy is

rooted in animus against transgender individuals and therefore

would fail even rational-basis scrutiny. Talbott, 775 F. Supp.

3d at 326–29. The court invoked a line of cases invalidating

statutes that disadvantaged unpopular groups. See, e.g., Romer

v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432 (1985); USDA v. Moreno, 413 U.S.

528 (1973). In our view, the district court overread these

precedents.

These decisions reflect ordinary rational-basis principles;

they are not an independent basis for striking down statutes or

rules. In Board of Trustees of the University of Alabama v.

21

Garrett, 531 U.S. 356 (2001), the Supreme Court rejected a

contention that “decisionmaking reflecting negative

attitudes … necessarily runs afoul of” equal protection. Id. at

367 (cleaned up) (discussing Cleburne, 473 U.S. at 448).

Instead, the Court explained, cases like Cleburne condemn

negative attitudes “unsubstantiated” by anything that would

indicate a legitimate government interest. See id. (emphasis

omitted). So, “read in context,” the animus precedents “simply

state the unremarkable and widely acknowledged tenet of the

Court’s equal protection jurisprudence that state action subject

to rational-basis scrutiny does not violate the Fourteenth

Amendment when it rationally furthers the purpose identified

by the [government].” Id. (cleaned up).

The Supreme Court confirmed this point in Trump v.

Hawaii. There, it explained that the “common thread” uniting

its animus decisions has been the lack of “any purpose other

than a ‘bare desire to harm a politically unpopular group.’” 585

U.S. at 705 (quoting Moreno, 413 U.S. at 534) (cleaned up).

Put differently, the key question is whether it is “impossible to

‘discern a relationship to legitimate state interests’” such that

the policy is “inexplicable by anything but animus.” Id. at 706

(quoting Romer, 517 U.S. at 632, 635). If any legitimate state

interest exists, “we must accept that independent justification”

and thus reject an equal-protection challenge resting on

asserted animus. Id. Because the Hegseth Policy advances

legitimate military interests, the animus cases do not help the

plaintiffs here.

The district court looked beyond the Hegseth Policy itself

to derive animus from various statements made by the

President or other officials. The Supreme Court rejected such

an approach in Trump v. Hawaii, which upheld a presidential

proclamation imposing restrictions on travel to the United

States from six predominantly Muslim countries. 585 U.S. at

22

676; see also id. at 736 (Sotomayor, J., dissenting). The

plaintiffs in that case highlighted several of President Trump’s

social media posts which, in the dissenting justices’ view,

“express[ed] animus toward Islam.” Id. at 731 (Sotomayor, J.,

dissenting); see also id. at 728 (Breyer, J., dissenting). But the

Court discounted the “significance of those statements in

reviewing a Presidential directive, neutral on its face,

addressing a matter within the core of executive

responsibility.” Id. at 702 (majority opinion). The task, as the

Court viewed it, was to “consider not only the statements of a

particular President, but also the authority of the Presidency

itself.” Id. With that principle in mind, the Court looked to the

proclamation’s text, which was “expressly premised on

legitimate purposes.” Id. at 706. Given that conclusion, the

statements of government officials about the proclamation

were not dispositive. So too here. Our review must focus on

the text and sources informing the Hegseth Policy, not extrinsic

statements made about it.

B

The remaining stay factors also favor the government. For

one thing, the Supreme Court’s stay order in Shilling indicates

that the government would suffer an irreparable injury if the

Hegseth Policy were enjoined pending appellate review of

preliminary injunctions. See Shilling, 145 S. Ct. 2695; Nken,

556 U.S. at 425–26. This is hardly surprising. Injunctions that

“improperly intrude” on the Executive Branch often inflict

irreparable injury, Trump v. CASA, Inc., 606 U.S. 831, 859

(2025) (cleaned up), especially where the injunction interferes

with the government’s “compelling need to provide for the

Nation’s security,” Trump v. Int’l Refugee Assistance Project,

582 U.S. 571, 583 (2017) (per curiam). We can imagine few if

any government interests more compelling than a strong and

ready military. And while the district court concluded that

23

allowing gender-dysphoric individuals to serve in the military

would advance the cause of military strength and readiness, the

Constitution assigns that assessment to the political branches,

as cases like Goldberg and Goldman make clear.

On the other side of the balance, we acknowledge that the

plaintiffs have significant interests at stake—particularly those

who have already acceded. But “[t]he possibility that adequate

compensatory or other corrective relief will be available at a

later date … weighs heavily against a claim of irreparable

harm.” Chaplaincy of Full Gospel Churches v. England, 454

F.3d 290, 297–98 (D.C. Cir. 2006) (cleaned up). In particular,

loss of a valued government position “does not usually

constitute irreparable injury,” especially if the terminated

individual or officer may obtain backpay or reinstatement if he

or she ultimately prevails on the merits. Sampson v. Murray,

415 U.S. 61, 90–91 (1974). Courts applying these principles

have held that even less-than-honorable military discharges do

not constitute irreparable injuries warranting interim relief

while challenges to the discharge remain ongoing. See

Hartikka v. United States, 754 F.2d 1516, 1518 (9th Cir. 1985);

Guerra v. Scruggs, 942 F.2d 270, 273–74 (4th Cir. 1991). And

here, any service members separated under the Hegseth Policy

will be honorably discharged. Add. 101.

Finally, the public interest does not warrant a stay. With

the government likely to prevail on the merits, and with the

balance of harm among the parties favoring the government,

we can discern no other consideration here that would tip the

scale in the opposite direction.

24

III

For these reasons, we grant the stay pending appeal.2

2

The district court independently erred in universally enjoining

the Hegseth Policy rather than merely providing as-applied relief to

the plaintiffs. See CASA, 606 U.S. at 839–47. Given our conclusion

that the government should be able to enforce the policy while its

appeal is pending, we need not address further questions about the

appropriate scope of any injunctive relief.

PILLARD, Circuit Judge, dissenting: Transgender members

of the military have answered the call to serve this nation on

the same terms as any other servicemember. For nearly a

decade, they have met the same standards, risen to the same

challenges, and defended our country with the same honor as

their peers. They have passed intensive physical and mental

health screening, completed demanding training programs, and

met the rigors of their assigned duties. The achievements of

the individual plaintiffs in this case include “more than 80

commendations” during a collective total of “over 130 years of

military service.” See Talbott v. United States, 775 F. Supp. 3d

283, 291 (D.D.C. 2025). In the district court, high-ranking

officials from the Army, Navy, and Air Force offered

unrebutted testimony uniformly supporting the finding that

transgender servicemembers “have had either no detrimental

effect or have had a positive” effect on military readiness. Id.

at 310. Defendants offered no evidence to the contrary.

This suit arises because the government has now decided

to force every transgender servicemember out of the military

through a policy based on nothing more than negative attitudes

about transgender identity. The majority and I agree that we

owe the greatest deference to the political branches’ expert

judgments on military policy. Maj. 11-12. The Constitution

vests control of the military in the political branches. Id. We

must respect “the executive’s considered judgment that a

military policy furthers legitimate interests.” Id. at 13. The

district court, in accord with that deferential standard of review,

Talbott, 775 F. Supp. 3d at 311-12, offered the government

every opportunity to provide evidence of considered judgment

supporting the Hegseth Policy, id. at 309. The government

declined to do so. Id.

Underscoring that its actions are heedless of military need,

the government cannot even say how many servicemembers its

policy will exclude—but evidence suggests the number is in

the thousands. Id. at 307; see generally Add. 129 n.10 (citing

2

a 2016 survey estimating that 8,980 active-duty

servicemembers, approximately 1% of the service, identified

as transgender). Prior defense secretaries in Republican and

Democratic administrations adopted varying policies regarding

transgender people’s accession. But none categorically barred

current servicemembers who are transgender from remaining

in their roles so long as they continue to meet military

standards.

There may well be valid reasons to reexamine and alter

military service policies set by previous administrations. But

on this record, one cannot tell. Defendants provide no evidence

that they based their new policy on any assessment of costs,

benefits, or any other factor legitimately bearing on military

necessity. Indeed, there is “no evidence that [President Trump

or Secretary Hegseth] consulted with uniformed military

leaders” before imposing their unprecedented ban on

transgender servicemembers. Talbott, 775 F. Supp. 3d at 292.

The outcome was determined by animus from the start.

In Executive Order 14183, President Trump declared as

“the policy of the United States” 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.” Prioritizing Military

Excellence and Readiness, 90 Fed. Reg. 8757, 8757 (Feb. 3,

2025). He asserted that openly identifying as transgender is

“not consistent with the humility and selflessness required of a

service member.” Id. Having thereby tagged all transgender

servicemembers as shameful, dishonest laggards too arrogant

or selfish to serve, he ordered Secretary Hegseth to implement

policies within sixty days to carry out the Executive Order. Id.

at 8757-58.

3

Secretary Hegseth responded by adopting the policy at

issue here. Under the Hegseth Policy, all servicemembers who

“exhibit symptoms consistent with[] gender dysphoria” or

“have a history of” receiving gender-affirming care are

summarily “disqualified from military service.” Add. 106.

The policy purports to allow “consider[ation] for a waiver on a

case-by-case basis, provided there is a compelling Government

interest in retaining the servicemember that directly supports

warfighting capabilities,” id., but the waiver is illusory. It is

unavailable to anyone who has ever “attempted to transition to

any sex other than their [birth] sex” and requires a commitment

to “adhere to . . . the standards associated with the Service

member’s [birth] sex.” Id. The so-called waiver thus excludes

any transgender person who has ever attempted to serve or

succeeded in serving—or just living—consistently with their

gender identity, or who intends to do so.

The Hegseth Policy casts itself as concerned with the

“medical, surgical, and mental health constraints on individuals

with gender dysphoria.” Id. at 101. But the Policy is not a

medical standard. It is a categorical exclusion of transgender

people from military service—with “transgender” broadly

defined. It covers not only those with diagnosed gender

dysphoria, but also those with “a history of” gender dysphoria,

or “symptoms consistent with” gender dysphoria. Id. As the

district court found, it is a ban on transgender troops writ large.

Talbott, 775 F.3d at 301-02; see infra Part I.A. What is more,

the Hegseth Policy explicitly bars the military branches from

using the military’s own Disability Evaluation System to

determine on a case-by-case basis whether a transgender

person has a disabling medical condition burdensome to the

military or inconsistent with continued service. Add. 106. The

government cannot identify any other medical condition that

automatically triggers administrative separation instead of an

individualized medical evaluation regarding continued fitness

4

to serve. Oral Arg. 27:30-28:30. Why do health concerns

stemming from present, past, or suspected gender dysphoria

require a process different from what the military uses for every

other medical condition affecting servicemembers? The

government has no answer.

The record of the military’s prior experience with

individualized medical evaluations under Secretaries Carter,

Mattis, and Austin undercuts the Hegseth Policy: It reveals that

incumbent transgender servicemembers have earned their

places in the military and that they can serve without health-

related disqualification, Talbott, 775 F. Supp. 3d at 308-09, and

often without any period of non-deployability, Wagner Decl.

¶ 14 (App. 332). Secretaries Carter, Mattis, and Austin

understood that the military has strong reasons to continue to

benefit from incumbent servicemembers’ valuable training and

experience, in which the government has made significant

investments, rather than arbitrarily removing them from their

posts. And they recognized that transgender servicemembers

have significant reliance interests in their military positions.

See, e.g., Add. 128 (Mattis Policy).

In implementing the Hegseth Policy to exclude even

current servicemembers, defendants double down on

demeaning their own. The Air Force has released a

memorandum requiring transgender servicemembers to either

show up to their separation hearings wearing the uniform and

meeting the grooming standards of their birth sex—not the

uniform they have worn while serving—or else forego the right

to participate in their hearings. Memorandum from Brian

Scarlett, Acting Assistant Sec’y of the Air Force for

Manpower, Pers., and Servs., to All Major Commands, Direct

Reporting Units, Field Operating Agencies, & Commanders 4

(Aug. 14, 2024) [hereinafter Air Force Memorandum]. For

transgender servicemembers who want to participate in their

5

own separation hearings, that might mean buying a new

uniform, shaving their mustaches or shearing their long hair to

adhere to different sex-based standards, and dressing in

clothing not meant for their medically transitioned bodies. It is

hard to see any purpose of those requirements other than

humiliating the departing transgender servicemembers and

deterring them from exercising their hearing rights. The threat

that any transgender servicemember who does not separate

voluntarily could face recoupment of past bonuses is added

spite. Add. 107.

Based on its review of the uncontested facts of record, the

district court preliminarily enjoined the Hegseth Policy.

Applying existing, binding law to the uncontested record

before us, I must agree with that judgment. I cannot credit the

government’s bare assertions over the district court’s findings

on the factual record, none of which the government challenges

for clear error. The government has not satisfied the

demanding standard to stay the district court’s preliminary

injunction.

I write with full respect for the signal we have already

received from the Supreme Court regarding the Hegseth

Policy. Acting on its emergency docket without statement or

opinion, the Supreme Court has stayed a separate preliminary

injunction against the Hegseth Policy issued by the U.S.

District Court for the Western District of Washington. See

United States v. Shilling, 145 S. Ct. 2695 (2025) (mem). I am

mindful of the Supreme Court’s guidance that its “interim

orders . . . inform how [we] should exercise [our] equitable

discretion in like cases,” Trump v. Boyle, 145 S. Ct. 2653, 2654

(2025), as well as its instruction that the Court’s “unexplicated

decisions” are “not to be read as a renunciation . . . of doctrines

previously announced” in its binding decisions, Ramos v.

Louisiana, 590 U.S. 83, 104-05 (2020) (internal quotation

6

marks and citations omitted). The Supreme Court’s order in

Shilling may well reflect its conclusion that district judges lack

authority to grant universal relief. Trump v. CASA, Inc., 606

U.S. 831, 856 (2025).1 And this case, like Shilling, arrives in a

preliminary posture, presenting the kind of important, fast-

moving issue on which the lower federal courts can contribute

to “the airing of competing views” that may “aid[] [the

Supreme] Court’s own decisionmaking process” at the merits

stage. Dep’t of Homeland Sec. v. New York, 589 U.S. 1173,

1176 (2020) (Gorsuch, J., concurring in grant of stay); see also

Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J.,

dissenting) (“[D]iverse opinions from[] state and federal

appellate courts may yield a better informed and more enduring

final pronouncement by this Court.”). As do my colleagues in

the majority, I thus find it worthwhile to briefly explain my

views on whether the district court’s preliminary injunction

should be stayed pending resolution of the appeal on its merits.

I.

Entering a stay pending appeal is an “extraordinary”

remedy. Citizens for Resp. & Ethics in Wash. v. FEC (CREW),

904 F.3d 1014, 1017 (D.C. Cir. 2018) (per curiam). In most

circumstances, parties must vindicate their positions through

the ordinary process of litigation. To stay relief that a district

court entered for an opposing party, the applicant must (1)

make a “strong showing that [it] is likely to succeed on the

merits;” (2) demonstrate that it will be “irreparably injured”

before the appeal concludes; (3) show that issuing a stay will

not “substantially injure the other parties interested in the

1

As this case proceeds, the district court may need to reassess the

scope of its injunction in light of the Supreme Court’s intervening

decision in CASA. See Doe v. Trump, 142 F.4th 109, 112 (1st Cir.

2025).

7

proceeding;” and (4) establish that “the public interest” favors

a stay. Nken v. Holder, 556 U.S. 418, 434 (2009). We review

the district court’s decision to grant the preliminary injunction

“for abuse of discretion, its legal conclusions de novo, and [its]

factual findings for clear error.” Media Matters for Am. v.

Paxton, 138 F.4th 563, 573 (D.C. Cir. 2025).

Even with the benefit of the “great deference” we owe “to

the professional judgment of military authorities,” Winter v.

Natural Resources Defense Council, Inc., 555 U.S. 7, 24

(2008), defendants have failed to make the necessary “strong

showing” that they are likely to succeed on the merits of their

claim, Nken, 556 U.S. at 426. Because the Hegseth Policy is

openly fueled by animus towards transgender people and

defendants have not shown that it is based on military

considerations, it fails even the most deferential form of equal

protection review.

A.

“[I]f the constitutional conception of ‘equal protection of

the laws’ means anything, it must at the very least mean that a

bare . . . desire to harm a politically unpopular group cannot

constitute a legitimate governmental interest.” U.S. Dep’t of

Agric. v. Moreno, 413 U.S. 528, 534 (1973). Accordingly,

even reviewed with “the highest deference” that we owe the

political branches “in ordering military affairs,” Loving v.

United States, 517 U.S. 748, 768 (1996); see Dep’t of Navy v.

Egan, 484 U.S. 518, 530 (1988) (collecting cases), a law or

other official action that is driven solely by animus towards a

disfavored group cannot survive. Animus fails as a

justification for differential treatment even of groups

unprotected by any heightened constitutional scrutiny. The

Supreme Court has applied rationality review to strike down as

animus-based a statutory provision rooted in negative attitudes

about “‘hippies’ and ‘hippie communes’” that disqualified

8

unmarried cohabitants from receiving food stamps, Moreno,

413 U.S. at 534 (citing 116 Cong. Rec. 44439 (1970)

(statement of Sen. Holland)), the amendment of Colorado’s

constitution to prohibit the state from acting to protect gay

people from discrimination, Romer v. Evans, 517 U.S. 620,

632-33 (1996), and a zoning ordinance rooted in fears of the

mentally disabled, City of Cleburne v. Cleburne Living Center,

473 U.S. 432, 448-50 (1985). Even as the Court in Cleburne

declined to apply heightened scrutiny to official action

targeting “the mentally retarded,” it invalidated the denial of a

permit for a group home because the denial was “rooted in

considerations that the Constitution will not tolerate”—

namely, “irrational prejudice.” Id. at 446, 450.

Animus need not be explicit on the face of a policy, as it is

here, but may be evidenced by “contemporary statements by

members of the decisionmaking body.” Village of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977).

In Cleburne, for example, the Court relied on the district

court’s findings that the Cleburne City Council passed the

discriminatory zoning ordinance primarily based on the

“negative attitude of . . . property owners . . . ” and “the fears

of elderly residents,” 473 U.S. at 448—attitudes and fears

accepted by the “five city officials most involved in the

decisionmaking process,” Br. for Resp’ts at 34, City of

Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (No.

84-468). “[C]ircumstantial” factors may provide evidence of

decisionmakers’ animus, including “sudden[]” changes in

policy (especially unexplained reversals), “[d]epartures from

the normal procedural sequence,” failure to address “the factors

usually considered important,” Arlington Heights, 429 U.S. at

266-68, and creating a policy whose “sheer breadth” is

“discontinuous with the reasons offered” for it, Romer, 517

U.S. at 632. The Defense of Marriage Act, for example, failed

rationality review in part because its “unusual deviation from

9

the usual tradition of recognizing and accepting state

definitions of marriage” provided “strong evidence of a law

having the purpose and effect of disapproval” of same-sex

couples. United States v. Windsor, 570 U.S. 744, 770 (2013).

Executive Order 14183, which triggered the Hegseth

Policy, is openly hostile to transgender people. The Order

denigrates anyone with “a gender identity inconsistent with

[that] individual’s sex,” (i.e., anyone who is transgender) as

categorically unable to fulfill “a soldier’s commitment to an

honorable, truthful, and disciplined lifestyle”—a commitment

required “even in one’s personal life.” Prioritizing Military

Excellence and Readiness, 90 Fed. Reg. at 8757. The Order

asserts that transgender identity is itself a “falsehood . . . not

consistent with the humility and selflessness required of a

service member.” Id. In other words, Executive Order 14183

vilifies transgender people as dishonorable, dishonest, and

undisciplined. It treats their transgender identity as a defect

that categorically cancels out their every individual strength,

ability, and virtue. The military’s new official policy brands

all transgender people, without regard to individual merit, as

unworthy to serve in our armed forces solely because they are

transgender.

Neither the government nor the majority disputes that

Executive Order 14183 expresses animus towards transgender

people. See Mot. for Stay 24-25; Maj. 20-22. They focus only

on the Hegseth Policy. But that changes nothing. The Hegseth

Policy springs from the Executive Order and espouses the same

denigration and vitriol. Contextual factors—the statements of

triumphant policymakers, the hasty and unsupported reversal

of apparently successful policies backed by careful study, and

the categorical sweep of the new policy—all confirm that the

Hegseth Policy, like the Executive Order, is driven by animus.

10

Start with the substance of the Hegseth Policy. Secretary

Hegseth’s memoranda repeat the disparaging claim that people

“expressing a false ‘gender identity’ divergent from an

individual’s [birth] sex cannot satisfy the rigorous standards

necessary for military service.” App. 325 (quoting Executive

Order 14183); App. 639-40. Additional implementing

documents list military virtues, including “honesty, humility,

uniformity, and integrity,” and then flatly declare that anyone

who has “symptoms consistent with[] gender dysphoria”

categorically lacks such virtues. See, e.g., Add. 101; Add. 114.

As the district court concluded, the Hegseth Policy’s “language

is unabashedly demeaning [and] its policy stigmatizes

transgender persons as inherently unfit.” Talbott, 775 F. Supp.

3d at 326.

Next, consider some of the many statements from official

government sources describing the Hegseth Policy as a total

ban on transgender service and celebrating the wholesale

exclusion of transgender individuals. For instance:

• “Transgender service members are disqualified

from service without an exemption.”

@DODResponse, X.com (Feb. 27, 2025) (emphasis

added), https://perma.cc/S4CE-EPFX.

• “Your agenda is illegals, trans & DEI — all of which

are no longer allowed @ DoD.” @PeteHegseth,

X.com (Apr. 20, 2025) (emphasis added),

https://perma.cc/WX2M-R4K9.

• “No more dudes in dresses, we’re done with that

shit.” Pete Hegseth, Sec’y Defense, U.S. Dep’t of

Defense, Keynote Address at Special Operations

Forces Week 2025 (May 6, 2025),

https://perma.cc/T75U-93FR.

11

• “After a SCOTUS victory for @POTUS, TRANS is

out at the DOD.” @PeteHegseth, X.com (May 8,

2025) (emphasis added), https://perma.cc/ZUV2-

6QNJ.

Add to defendants’ overt derision their unusually “rushed

and haphazard manner” of issuing the Hegseth Policy. Talbott,

775 F. Supp. 3d at 302. Previous defense secretaries devoted

months of study, with the help of experts, to understanding the

facts and circumstances relevant to transgender service. Id.

Secretary Hegseth promulgated his policy in just one month.

Id. That was remarkable because, by the time Secretary

Hegseth took office, the military was poised to shift from the

prognostication on which past administrations had to rely to

draw on the military’s own substantial and growing experience

with transgender servicemembers.

Before our court, defendants rely almost exclusively on the

2018 Mattis Report and the Policy that Report recommended.

Mot. for Stay 13, 23-24. But when Secretary Mattis acted, the

military had negligible experience with openly transgender

servicemembers. Of necessity he based his policy on “risks”

and predictions about what “could” happen gleaned from

broader studies not focused on the military. Add. 120. Even

then, the Mattis Policy made no move to purge transgender

people already serving; it disallowed only new accessions.

Add. 120-21. Secretary Hegseth, in contrast, had a wealth of

relevant evidence available to him that Secretary Mattis had

lacked: the military services’ own experience during the

intervening years with the thousands of transgender persons

among their ranks. Secretary Hegseth deliberately failed to

account for that highly probative experience—or even explain

why he eschewed it. Ignoring realities that might undercut his

chosen course, Secretary Hegseth rested his policy on

12

categorical disdain. That head-in-the-sand approach yielded a

policy driven by animus, not military need.

The majority reverts to three pieces of evidence that

defendants had featured in district court: a 2021 review

conducted by the Department’s Psychological Health Center of

Excellence and the Accession Medical Standards Analysis and

Research Activity; a 2025 medical literature review conducted

by the Office of the Assistant Secretary of Defense for Health

Affairs; and a review of cost data on treatment of active-duty

servicemembers currently experiencing gender dysphoria.

Maj. 14-15. But the district court found, as to the first two

sources, that each “contradicts, rather than supports, the

conclusions” the Department drew from it. Talbott, 775 F.

Supp. 3d at 305-06. And as to the cost data, the district court

explained that the Department could not substantiate its

assertion of the disproportionate cost of treating

servicemembers with gender dysphoria without any baseline

for comparison with costs of other types of covered medical

care, or any analysis of the costs associated with discharging

all transgender servicemembers. Id. at 306. The government

does not challenge the district court’s findings of fact as clearly

erroneous, and we are bound to respect them.

Finally, consider the draconian scope of the Hegseth

Policy. It imposes a complete ban on military service by

transgender individuals. See id. at 301-02. And, unlike every

policy since 2016, it does not just affect the standards for

prospective recruits but drives out current, active-duty soldiers.

It does so in vivid contrast to the Mattis Policy, which

recognized that the military generally applies “less stringent

standards to retention than to accession in order to preserve the

Department’s substantial investment in trained personnel” and

to honor the reliance interests of incumbent transgender

servicemembers. Add. 127-28; see id. 164 (“[R]etention

13

standards focus squarely on whether the Service member,

despite his or her condition, can continue to do the job.”).

Accordingly, servicemembers who had been diagnosed with

gender dysphoria yet permitted under the Carter Policy to serve

openly could remain in the service under the Mattis Policy,

continue to receive benefits including medical treatment, and

serve consistently with their gender identity. Add. 120. That

“reliance exemption” was critical to our court’s understanding

that the Mattis Policy did not operate as a blanket ban on

transgender servicemembers. See Doe 2 v. Shanahan, 755 F.

App’x 19, 24 (D.C. Cir. 2019); Doe 2 v. Shanahan, 917 F.3d

694, 700 (D.C. Cir. 2019) (Wilkins, J., concurring); id. at 722

(Williams, J., concurring). In contrast, the Hegseth Policy not

only prevents transgender persons from acceding to the

military but also summarily ousts all those already in it. Both

groups are disqualified from service without exception.

Thousands of talented and patriotic individuals who met

rigorous accession standards and have been serving military

need are being pointlessly expelled.

The Hegseth Policy also subjects transgender

servicemembers to a gratuitously harsh administrative

separation process. Normally, when a current servicemember

is diagnosed with a medical condition that the military

considers potentially disabling, the Department of Defense

refers the servicemember to its Disability Evaluation System

for an individualized assessment of the servicemember’s

continued ability to serve and suitability for deployment. Soper

Decl. ¶ 13 (App. 446). The Department uses the results of that

individualized assessment to determine whether the

servicemember can continue in the military. But the Hegseth

Policy specifically bars referrals to the Disability Evaluation

System based on gender dysphoria. Instead, it requires

transgender servicemembers to undergo administrative

separation, a process typically reserved for misconduct or

14

failure to meet standards. Id. at ¶¶ 14, 16 (App. 446).

Administrative separation proceedings can cause immediate

and severe career harm: Servicemembers in those proceedings

are automatically designated non-deployable and cannot be

promoted. Id. at ¶ 14.

There is no other medical condition that automatically

triggers administrative separation from the military rather than

individualized medical evaluation followed by determination

of an appropriate response. Oral Arg. 27:30-28:30.

Defendants offer no explanation why they devised a new,

categorical approach just for gender dysphoria when existing

medical screening procedures serve for all other medical

conditions. As the district court found, this sui generis

treatment of gender dysphoria underscores that the Hegseth

Policy’s asserted grounding in “the military’s rigorous physical

and mental fitness requirements” is pretextual. Talbott, 775 F.

Supp. 3d at 328. Such rigorous fitness “standards are already

in place, and each active-duty Plaintiff already meets them.”

Id. If servicemembers become unfit or if their participation

poses unusual risks to others, the military’s preexisting

procedures enable it to assess and remove them.

The district court also found that the government plans to

implement the Policy by assigning servicemembers to the task

of “rummag[ing] through private medical records” to identify

those “who have a current diagnosis or history of, or exhibit

symptoms consistent with, gender dysphoria.” Talbott v.

United States, 775 F. Supp. 3d 445, 449-50 (D.D.C. 2025)

(emphasis added). No previous policy has devised such a

costly and intrusive implementation scheme. No other medical

condition involves servicemembers scrutinizing their peers’

medical records to root out vaguely defined disfavored

symptoms—in the name of unit cohesion, no less. The Hegseth

15

Policy is not designed to further military objectives. It is

designed to stigmatize and drive out an unwanted group.

B.

In advocating for a stay, the government does not dispute

the animus pervading the Executive Order but shrugs it off as

legally beside the point. Animus matters to the constitutional

analysis, say defendants, only where a policy “lack[s] any

purpose other than a ‘bare . . . desire to harm a politically

unpopular group.’” Mot. for Stay 25 (quoting Trump v.

Hawaii, 585 U.S. 667, 705 (2018) (quoting Moreno, 413 U.S.

at 534)). The majority agrees, concluding that “[i]f any

legitimate [governmental] interest exists” alongside the

animus, “‘we must accept that independent justification.’”

Maj. 21 (quoting Trump, 585 U.S. at 706). We need not

address whether the presence of animus is fatal to a policy with

a genuinely independent justification because here, the

government fails to offer any plausible, distinct rationale for its

policy.

Trump v. Hawaii exemplifies the requisite inquiry. There,

challengers asserted that a Presidential Proclamation barring

the entry to the United States of nationals from certain

countries was invalid because it was fueled by anti-Muslim

animus. Trump, 585 U.S. at 699. In crediting the government

with an independent and legitimate national security

justification, the Court emphasized that the revised

Proclamation before it “reflect[ed] the results of a worldwide

review process undertaken by multiple Cabinet officials and

their agencies,” limited the ban to “countries that were

previously designated by Congress or prior administrations as

posing national security risks,” and provided for meaningful

exceptions and waivers in keeping with the limited national

security rationale. Trump, 585 U.S. at 706-710.

16

But the Court has refused to so credit alternate

explanations for policies driven by animus where, as here,

those explanations lack indicia of truth and independence. In

Moreno, for example, the government claimed the challenged

policy was designed to prevent welfare fraud; the Court

disbelieved that explanation because other statutory provisions

dealt with “those very same abuses.” 413 U.S. at 535-37. In

Cleburne, the government claimed its policy forbidding a

group home for the developmentally disabled was justified by

the possibility that local “students might harass” the disabled

residents, that its siting in a floodplain might endanger them,

that the city might face legal liability, and that the group home

would create residential crowding. 473 U.S. at 449-50. There,

too, the Court rejected the alternate explanations because the

targeted group presented no “different or special hazard” from

groups that remained unregulated. Id. at 449. And in Romer,

the Court deemed several explanations pretextual because the

challenged policy’s “sheer breadth” in depriving the targeted

group of every potential legal protection from discrimination

“across the board” was notably “discontinuous with the reasons

offered for it.” 517 U.S. at 632-33.

The Supreme Court’s instruction to credit only actual

justifications “independent” of animus aligns with broader

principles of equal protection analysis. Trump, 585 U.S. at

706. Screening out animus is a chief concern of constitutional

scrutiny. The Court reviews suspect classifications such as

race and sex more skeptically because they “are so seldom

relevant to the achievement of any legitimate state interest that

laws grounded in such considerations are deemed to reflect

prejudice and antipathy.” Cleburne, 473 U.S. at 440. In other

words, the Court treats a suspect category as presumptively

based in animus (and therefore unconstitutional) unless the

law’s “suitabl[e] tailor[ing]” toward some legitimate and

sufficiently weighty purpose shows otherwise. Id. Even under

17

the most deferential rational basis review, the government must

do more than supply possible alternate explanations for a

policy motivated by animus. It must show that such reasons

better explain the policy than the “prejudice and antipathy”

already identified. Cleburne, 473 U.S. at 440. To hold

otherwise would too readily allow official actors to mask

forbidden, irrational animus with pretext.

The government variously asserts that the Hegseth Policy

is justified because transgender servicemembers harm military

readiness, disrupt unit cohesion, or impose excess medical

costs. Mot. for Stay 14-18. But none of those alternate

rationales accounts for the focus, conclusory process, or harsh

scope of the Hegseth Policy. Animus does. The government

has failed to show that the Hegseth Policy was designed to

promote its stated interests rather than the inverse: that those

interests were retrofitted to justify the animus-driven policy

required by Executive Order 14183.

Consider the two potentially strongest justifications for the

Policy: improving military readiness and maintaining unit

cohesion. The majority notes that previous defense secretaries

had “concerns” about transgender persons’ health issues,

stressing the predictions of the Mattis Report and the

“anticipated” impacts of the Carter Policy. Maj. 15-16

(internal quotation marks omitted). Similarly, the majority

draws on the Mattis Report’s discussion of potential unit

cohesion issues stemming from gender-based privacy and

physical fitness standards. Id. at 16-17. But the predictions

and hypotheticals of past defense secretaries were developed

nearly a decade ago, without the benefit of experience. As the

district court observed, the Mattis Report was explicit that its

“findings were limited by uncertainty” because “[t]ransgender

persons had not served openly previously.” Talbott, 775 F.

Supp. 3d at 303 (internal quotation marks omitted).

18

In adopting the Hegseth Policy, defendants failed to

consider whether the “woefully stale” predictions of the Mattis

Report have borne out. Id. at 324. The government is silent as

to whether, in the intervening seven years, any of the

challenges predicted by the Mattis Policy—or others it did not

foresee—have arisen and, if so, how the military has addressed

them. And the government fails to identify any way in which

policies in place on the eve of the Hegseth Policy failed to meet

legitimate military needs. Defendants provide no evidence that

President Trump or Secretary Hegseth “consulted with

uniformed military leaders” at all before imposing their

unprecedented ban on transgender servicemembers. Id. at 292.

Contrast defendants’ suppositions with the district court’s

findings of fact, based on undisputed record evidence that

includes the observations of multiple high-ranking officials

who implemented the Austin Policy. Former service

secretaries and other leaders of the Department of Defense

attested that they had never encountered a disciplinary case,

readiness issue, or weakening of unit cohesion stemming from

a servicemember’s transgender status. Id. at 309-10. What is

more, the former Secretary of the Navy observed that “allowing

transgender individuals to serve strengthens unit cohesion by

fostering honesty and mutual trust” and that “excluding

transgender individuals from military service is destabilizing to

good order and discipline.” Id. at 308. The district court

credited those officials’ uncontested avowals that “transgender

service . . . has not negatively impacted readiness.” Id. at 309.

As one official responsible for personnel and readiness

explained, “policies that allow transgender service members to

be evaluated based on skill and merit . . . do not jeopardize the

military’s mission of protecting the United States, but

strengthen it.” Id. at 309.

19

In accord with those attestations, the record substantiates

that plaintiffs’ service has made our country safer. To name

just a few, Captain Gordon Herrero kept American soldiers in

the Republic of Korea supplied with necessities during

multinational military exercises and was recently selected to

educate future officers as an instructor at the United States

Military Academy at West Point. Herrero Decl. ¶¶ 3-8, ECF

No. 72-25. Major Erica Vandal earned a Bronze Star for her

meritorious service as a Battery Commander in Afghanistan.

Vandal Decl. ¶¶ 8-9, ECF No. 72-20. Ensign Dany Danridge

repaired and maintained Navy aircraft and equipment to

support the military campaign against ISIL. Danridge Decl.

¶¶ 11-12, ECF No. 72-28. Commander Michelle Bloomrose,

as Commanding Officer of the Naval Justice School, trained

hundreds of enlisted and civilian professionals to deliver

military legal services. Bloomrose Decl. ¶ 7, ECF No. 72-54.

Each has served our country for between nine and nineteen

years, each continues to meet the military’s demanding

standards, and each wishes to continue serving. These

servicemembers’ records, unmet by any contrary showing,

support the district court’s conclusion that the service of openly

transgender people “has resulted in a stronger, not a weaker

military.” Talbott, 775 F. Supp. 3d at 308.

The government raises no challenge to the district court’s

findings of fact. Despite being afforded the opportunity to

cross-examine those officials and submit its own evidence, the

government repeatedly declined to do so (with one immaterial

exception).2 The government instead simply ignores the record

2

The government filed one declaration by Timothy Dill, Assistant

Secretary of Defense for Manpower and Reserve Affairs, in response

to the declaration of Gilbert Cisneros, the former Under Secretary of

Defense for Personnel and Readiness. Id. at 309. Mr. Dill

challenged whether a person in Mr. Cisneros’s role would have had

firsthand knowledge of individualized servicemember complaints.

20

and the district court’s findings about the military’s experience

since the Mattis Policy, and the majority does the same. But in

the absence of any showing of clear error we are bound to

respect those findings. As the case comes before us, the facts

conclusively demonstrate that the government’s stated

justifications for the Hegseth Policy are unsupported and

pretextual.

The gratuitously demeaning nature of the administrative

separation process that the military has adopted for transgender

servicemembers underscores the point. No special concern for

deployability, unit cohesion, training safety, or medical costs

supports the use against this group of a separation process

designed for cases of misconduct or failure to meet standards.

And none of the government’s justifications could support the

additional, degrading step of requiring transgender

servicemembers to either attend their separation hearings

dressed up according to the military standards for their birth

sex or else waive the right to participate. See Air Force

Memorandum 4.

C.

Because this policy fails rational basis review, it is

unnecessary to explore the deferential version of heightened

scrutiny for “the military context” that the majority assumes to

be the most demanding standard that might apply here. Maj.

12. The majority’s test, however, notably overreads limited

lines of precedent to downplay the role of overt bias or animus.

And in any event, it fails to justify upholding the Hegseth

Policy.

Id. at 310. But the district court credited Mr. Cisneros’s testimony

over Mr. Dill’s, reasoning that Mr. Cisneros’s sworn account of his

firsthand experiences was more authoritative than someone else’s

suppositions about his experiences, id., and the government does not

challenge that determination as clearly erroneous.

21

The majority asserts that, “[i]n the military context,”

courts need only “consider whether the policy . . . resulted from

the professional judgment of military authorities and

reasonably furthers legitimate military interests.” Maj. 12.

Neither of the cases it cites supports such a conclusion. Rostker

v. Goldberg rejected an invitation to craft a distinct version of

intermediate scrutiny of sex-based classifications for military

issues, 453 U.S. 57, 69-70 (1981), and in any event concerned

Congress’s constitutional authority over military affairs, id. at

64-65. The Rostker Court nonetheless scrutinized Congress’s

decision-making to determine whether the contested statute

was “the ‘accidental by-product of a traditional way of thinking

about females.’” Id. at 74 (quoting Califano v. Webster, 430

U.S. 313, 320 (1977)). Goldman v. Weinberger continued a

long line of decisions denying accommodation of certain

aspects of religious free exercise in the military. See 475 U.S.

503, 507, 509-10 (1986). To be sure, “the complex, subtle, and

professional decisions as to the composition and training of

military forces are matters of expert military judgment” on

which we “tread with great care,” but no special rule of

deference shelters military policies from claims of

unconstitutional bias or animus. See Singh v. Berger, 56 F.4th

88, 98 (D.C. Cir. 2022) (internal quotation marks and

alterations omitted).

Even under the majority’s standard, the Hegseth Policy

falls short: It did not result from the professional judgment of

military authorities. We owe deference to the “considered

professional judgment” of “appropriate military officials.”

Goldman, 475 U.S. at 509. But where defendants made no

attempt to collect or analyze the most relevant information

available to the military or bring military expertise to bear on

the issue before the court, there is no “considered professional

judgment” to which we might defer. In Rostker, the Court

22

upheld a policy that was the product of extensive “hearings,

floor debate, and . . . committee” discussions which “adduced

extensive testimony and evidence concerning the issue.” 453

U.S. at 72. And in Goldman, the Court evaluated “AFR 35-10,

a 190-page document” developed by the Air Force which

“describe[d] in minute detail” what its servicemembers could

wear and the limited “individualized options” allowed. 475

U.S. at 508. Those efforts helped demonstrate that the policies

in question were the result of “considered professional

judgment,” id., and “reasonable evaluation,” Rostker, 453 U.S.

at 68, warranting deference from the courts. There is no record

of informed and expert decision making in support of the

Hegseth Policy’s abrupt upending of prior policies that were

based on careful study.

The Department of Defense may forego consideration,

study, or analysis of military experience or needs as it develops

and implements its personnel policies. But if it makes that

choice, it cannot then demand in litigation that courts

evaluating the constitutionality of those policies defer to the

Department’s unreasoned—even arbitrary or malign—

conclusions. And it certainly cannot do so when it has failed

to challenge as clearly erroneous the district court’s findings of

fact—findings based on attestations of military officials who

implemented the Austin Policy—that allowing open service by

qualified transgender individuals has had a positive effect on

military readiness and unit cohesion. See Talbott, 775 F. Supp.

3d at 309. Ignoring the overt animus fueling the Hegseth

Policy by assuming the Policy is supported by valid military

interests that the government did not even bother to

substantiate in court would stretch “military deference” beyond

any rational meaning. As the Supreme Court noted in Rostker,

“deference does not mean abdication.” 453 U.S. at 70.

* * *

23

Neither the government nor the majority contests the

existence of animus pervading Executive Order 14183. Mot.

for Stay 24-25; Maj. 20-22. The Hegseth Policy carried that

animus forward in the draconian ban it imposed, which it then

sought to justify based on stale predictions that had supported

a significantly more modest policy years earlier. None of the

government’s alternate justifications can disguise the real

impetus behind the Hegseth Policy: to purge transgender

servicemembers from the military because the President

vilifies transgender people and wishes to drive them out. The

government cannot make a strong showing of likelihood of

success on the merits when the Hegseth Policy fails even

rational basis review.

II.

The government must meet a “high standard” to show that

it faces irreparable injury. Chaplaincy of Full Gospel Churches

v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). Staying a

district court’s grant of preliminary relief “based only on a

possibility of irreparable harm is inconsistent with our

characterization of injunctive relief as an extraordinary remedy

that may only be awarded upon a clear showing that the

plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.

Instead, the government must show that the impending injury

is “actual and not theoretical,” and “of such imminence that

there is a clear and present need for equitable relief to prevent

irreparable harm.” Id. (quoting Wisc. Gas Co. v. FERC, 758

F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). Failure to

demonstrate irreparable harm is, by itself, “fatal” to a request

for a stay. See KalshiEx LLC v. CFTC, 119 F.4th 58, 64 (D.C.

Cir. 2024).

The majority seeks to justify its stay based on the

government’s compelling interest in a “strong and ready

military.” Maj. 22. But the record in this case is devoid of

24

evidence that the preliminary injunction allowing continued

service by fully qualified, healthy, and ready transgender

troops will irreparably harm that interest. The majority simply

asserts that in matters of military readiness “the Constitution

assigns that assessment to the political branches.” Maj. 23.

Indeed, we give “great deference” to the military’s judgments.

Winter, 555 U.S. at 24. But the military must provide

something more than the bare assertions in its briefing to be

“weighed against the [other] interests that are legitimately

before this [c]ourt.” See Winter, 555 U.S. at 25.

The government does not here assert that, pending

expedited decision of the appeal, the preliminary injunction is

likely to undermine military readiness and lethality. Rather, it

relies on a generic claim that the Department of Defense suffers

irreparably when it cannot immediately carry out a policy it

thinks is valid. The majority refrained from embracing that

claim. No wonder: That reasoning applies to every injunction

against the executive branch, so to treat it as irreparable harm

would effectively disable courts from preliminarily enjoining

any unconstitutional executive action. “That cannot be so.”

Doe #1 v. Trump, 957 F.3d 1050, 1059 (9th Cir. 2020). Even

in Maryland v. King, the Chief Justice’s in-chambers stay order

on which the government relies, the applicants demonstrated

“ongoing and concrete harm.” 567 U.S. 1301, 1303 (2012)

(Roberts, C.J., in chambers). Assertions of a generalized

interest in the immediate effectiveness of an executive policy

that a court deems likely unconstitutional cannot constitute

irreparable harm. To hold that it does would negate the

irreparable harm factor whenever the government seeks a stay.

Defendants have identified no irreparable harms that

manifested under the many years of the Austin Policy. And the

district court found that the Mattis Report’s predictions were

disproven by the real-world experiences of commanding

25

servicemembers under that policy. Talbott, 775 F. Supp. 3d at

323-25. The military has robust policies in place to remove

servicemembers who pose a threat to military readiness and

lethality, and transgender servicemembers are governed by

those just like everyone else. They are subject to the military’s

regular disciplinary procedures. And if they have medical

conditions affecting their ability to serve, the military can make

individualized assessments through the Disability Evaluation

System and remove any transgender servicemember as to

whom the assessment confirms a service impediment. The

government’s request for a stay therefore fails for lack of

irreparable harm.

III.

The majority contends that a stay pending appeal will not

cause “irreparable injuries” to plaintiffs because if they

ultimately prevail they may obtain backpay or reinstatement.

Maj. 23. “But in this procedural posture, it is not the plaintiffs’

burden to prove irreparable injury; it is the government’s.”

J.G.G. v. Trump, No. 25-5067, 2025 WL 914682, at *12 (D.C.

Cir. Mar. 26, 2025) (Henderson, J., concurring). Instead, “[w]e

must consider whether a stay will ‘substantially injure’ the

plaintiffs.” Id. (quoting Nken, 556 U.S. at 434). If a stay is

granted, plaintiffs who are currently in the process of joining

the military will be prevented from doing so, despite having

trained to qualify and given up housing, other jobs, and

educational opportunities in reliance on enlistment contracts.

And the incumbent active-duty plaintiffs who are being

separated from the service are already suffering the loss of a

“job, income, pension, health and life insurance, and all the

other benefits attendant” with military service, which by itself

constitutes substantial and irreparable harm. McVeigh v.

Cohen, 983 F. Supp. 215, 221 (D.D.C. 1998); see Elzie v.

Aspin, 841 F. Supp. 439, 443 (D.D.C. 1993); see also Cy Neff,

US To Begin Immediate Removal of Up to 1,000 Trans Military

26

Members, GUARDIAN (May 8, 2025), https://perma.cc/Q83G-

XNNB. Plaintiffs are currently losing the opportunity to accept

Senate-confirmed promotions, losing the ability to accrue time

towards retirement, losing access to medically necessary

healthcare, losing the opportunity to provide benefits for their

children, and, in many cases, losing the only career they have

ever known—for which many of them undertook years of

specialized training. The Hegseth Policy stigmatizes plaintiffs

and “subject[s]” them “to the indignity of being unable to serve

for reasons that, on this record, bear no relationship to their

ability to perform.” Singh, 56 F.4th at 110 (internal quotation

marks and alterations omitted). Under our precedent, that is

“irreversible and irreparable harm.” Id. Undoubtably, the

likelihood of “substantial[] injur[y]” to the plaintiffs weighs

heavily in favor of denying the stay. Nken, 556 U.S. at 434.

IV.

Finally, denying a stay serves the public interest. In Doe

1, we held that allowing a ban on the accession of transgender

people to the military to take effect was contrary to the public

interest because it would “directly impair and injure the

ongoing educational and professional plans of transgender

individuals and would deprive the military of skilled and

talented service members.” 2017 WL 6553389, at *3. That

reasoning has even greater force in this case. Allowing the

Hegseth Policy to take effect would lead not only to the end of

new accessions, but to the blanket removal of thousands of

admittedly qualified and talented servicemembers fully able to

continue meeting the military’s demanding standards.

Removing those individuals based only on their transgender

status is especially detrimental at a time when the services are

“facing a reduced pool of American[s] who meet military

physical and health standards” and must “build[] and grow[]

[their] own skilled specialists and leaders organically,” a

process that “typically requires years or decades.” Wagner

27

Decl. ¶ 41 (App. 12-13). The public interest suffers from the

arbitrary and demoralizing depletion of our armed forces.

* * *

Every factor in this case weighs against granting a stay

pending appeal. Defendants have failed to introduce evidence

that the Hegseth Policy serves any purpose other than the

indulgence of animus. They have not demonstrated that the

military is likely to suffer any harm, let alone irreparable harm,

if the preliminary injunction remains in place while this case is

litigated. On the other side of the ledger, plaintiffs and the

public are already suffering substantial and irreparable harm as

the military has begun to carry out the Hegseth Policy. All of

that is enough to deny defendants’ request for a stay. But denial

is even more urgent here to prevent grave disruption to the

status quo that preceded the Hegseth Policy: what the record

shows to be nearly a decade of successful service in our armed

forces by transgender servicemembers. The majority’s

decision makes it all but inevitable that thousands of qualified

servicemembers will lose careers they have built over decades,

drawn up short by a policy that would repay their commitment

and service to our nation with detriment and derision. The

majority grants this stay in the face of all evidence to the

contrary. We should not accord deference to the military when

the Department itself carelessly relied on no more than blatant

animus.

I respectfully dissent.