Petition for Writ of Certiorari — United States, et al., Petitioners v. Nicolas Talbott, et al.

Supreme Court briefAug 27, 2026

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No. XX-XX

In the Supreme Court of the United States

UNITED STATES OF AMERICA, ET AL., PETITIONERS

NICOLAS TALBOTT, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

D. JOHN SAUER

Solicitor General

Counsel of Record

BRETT A. SHUMATE

Assistant Attorney General

HASHIM M. MOOPPAN

Deputy Solicitor General

ERIC D. MCARTHUR

Deputy Assistant

Attorney General

FREDERICK LIU

Assistant to the

Solicitor General

MARK R. FREEMAN

MICHAEL S. RAAB

ANDREW M. BERNIE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether a Department of War policy that generally

disqualifies from military service individuals who have

gender dysphoria, a history of the condition, or a history

of related interventions—issued by Secretary of War

Hegseth in implementing Executive Order No. 14,183—

violates the equal-protection component of the Due Process Clause of the Fifth Amendment.

(I)

PARTIES TO THE PROCEEDING

Petitioners (defendants-appellants below) are the

United States of America; Peter B. Hegseth, Secretary

of Defense (hereinafter Secretary of War); Daniel P.

Driscoll, Secretary of the Army; United States Department of the Army; Hung Cao, Acting Secretary of the

Navy; United States Department of the Navy; Troy E.

Meink, Secretary of the Air Force; United States Department of the Air Force; Darin K. Via, Director of the Defense Health Agency; and the Defense Health Agency. 1

Respondents (plaintiffs-appellees below) are Nicolas

Talbott, Erica Vandal, Kate Cole, Gordon Herrero, Dany

Danridge, Jamie Hash, Koda Nature, Cael Neary,

Miriam Perelson, Clayton McCallister, Greyson Shishkina, Audrie Graham, Roan Pickett, Quinn Tyson, Amiah

Sale, Minerva Bettis, Samuel Ahearn, Regan Morgan,

Vera Wolf, Michelle Bloomrose, Hunter Marquez, Sean

Kersch-Hamar, Kelsey Orth, Taylor Maiwald, Sabrina

Bruce, C.J. Dulaney, Micah Jacqueline Gross, Austin

Converse, Nathalie Richter, Beck Simpson, Clara Winchell, and Ashley Davis. 2

RELATED PROCEEDINGS

United States District Court (D.D.C.):

Talbott v. United States, No. 25-cv-240 (Mar. 26, 2025)

United States Court of Appeals (D.C. Cir.):

Talbott v. United States, No. 25-5087 (June 1, 2026)

Acting Secretary Cao, Secretary Meink, and Director Via are

automatically substituted for their predecessors. See Sup. Ct. R. 35.3.

After the government filed its notice of appeal to the D.C. Circuit,

Miriam Perelson and Greyson Shishkina were voluntarily dismissed

as plaintiffs in this case. D. Ct. Doc. 107 (June 27, 2025).

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Constitutional provision involved ................................................ 1

Introduction................................................................................... 2

Statement ...................................................................................... 3

A. The military’s policies ....................................................... 3

B. Procedural history........................................................... 13

Reasons for granting the petition ............................................. 16

A. The question presented warrants this Court’s

review ............................................................................... 17

B. The decision below is wrong ........................................... 21

1. The Hegseth policy is subject only to

rational-basis review .................................................. 21

2. The Hegseth policy satisfies rational-basis

review........................................................................... 24

3. The Hegseth policy does not reflect animus............ 30

Conclusion ................................................................................... 32

Appendix A — Court of appeals opinion (June 1, 2026) ....... 1a

Appendix B — Court of appeals order granting a stay

pending appeal (Dec. 9, 2025)................ 110a

Appendix C — District court memorandum opinion

and order declining to dissolve the

preliminary injunction and denying a

stay pending appeal (Mar. 26, 2025) ..... 166a

Appendix D — District court order granting a

preliminary injunction

(Mar. 18, 2025) ........................................ 185a

Appendix E — District court memorandum opinion on

respondents’ renewed motion for a

preliminary injunction

(Mar. 18, 2025) ........................................ 188a

(III)

TABLE OF AUTHORITIES

Cases:

Page

Bauer v. Lynch, 812 F.3d 340 (4th Cir. 2016) ............... 26, 27

Bostock v. Clayton County, 590 U.S. 644 (2020) ................ 24

Chiles v. Salazar, 146 S. Ct. 1010 (2026) ............................. 18

DHS v. New York, 141 S. Ct. 1370 (2021) ........................... 20

Department of Agriculture v. Moreno,

413 U.S. 528 (1973).............................................................. 30

Department of the Navy v. Egan, 484 U.S. 518 (1988) ...... 18

Doe v. Shanahan:

755 Fed. Appx. 19 (D.C. Cir. 2019) .................................. 9

917 F.3d 694 (D.C. Cir. 2019) ........................................... 9

Doe v. Trump, 315 F. Supp. 3d 474 (D.D.C. 2018),

rev’d, 755 Fed. Appx. 19 (D.C. Cir. 2019) ........................... 9

FDA v. Alliance for Hippocratic Medicine,

602 U.S. 367 (2024).............................................................. 20

Gilligan v. Morgan, 413 U.S. 1 (1973) ................................. 17

Goldman v. Weinberger, 475 U.S. 503 (1986) ............... 17, 22

Heller v. Doe, 509 U.S. 312 (1993) ........................................ 24

Hollingsworth v. Perry, 558 U.S. 183 (2010) ...................... 17

Karnoski v. Trump, No. 17-cv-1297, 2018 WL

1784464 (W.D. Wash. Apr. 13, 2018), vacated,

926 F.3d 1180 (9th Cir. 2019) ......................................... 9, 19

Little Sisters of the Poor Saints Peter & Paul Home

v. Pennsylvania, 591 U.S. 657 (2020) ............................... 20

Mullin v. Al Otro Lado, 146 S. Ct. 2079 (2026) .................. 18

Mullin v. Doe, 146 S. Ct. 2121 (2026) ............................ 18, 32

Romer v. Evans, 517 U.S. 620 (1996) .................................. 31

Rostker v. Goldberg, 453 U.S. 57 (1981) .................. 22, 24, 28

Shilling v. United States,

773 F. Supp. 3d 1069 (W.D. Wash. 2025) .......................... 20

Cases—Continued:

Page

Stockman v. Trump, 331 F. Supp. 3d 990

(C.D. Cal. 2018), vacated, No. 18-56539,

2019 WL 6125075 (9th Cir. Aug. 26, 2019) ......................... 9

Stone v. Trump, No. 17-cv-2459,

2019 WL 5697228 (D. Md. Mar. 7, 2019) ............................ 9

Trump v. Barbara, 146 S. Ct. 2438 (2026) .......................... 18

Trump v. CASA, Inc., 606 U.S. 831 (2025).......................... 16

Trump v. Hawaii, 585 U.S. 667 (2018) ............... 20, 24, 30-32

Trump v. Karnoski, 586 U.S. 1124 (2019) ....................... 2, 19

Trump v. Orr, 146 S. Ct. 44 (2025) ....................................... 31

Trump v. Slaughter, 146 S. Ct. 2283 (2026) ........................ 18

Trump v. Stockman, 586 U.S. 1124 (2019) ............................ 9

Trump v. V.O.S. Selections, Inc., 607 U.S. 229 (2026) ....... 18

United States v. Shilling,

145 S. Ct. 2695 (2025) ....................................2, 14, 15, 17, 19

United States v. Skrmetti,

605 U.S. 495 (2025)............................................. 19, 22-24, 28

United States v. Virginia, 518 U.S. 515 (1996)................... 26

West Virginia v. B.P.J.,

146 S. Ct. 2356 (2026) ....................... 15, 18, 19, 22-24, 27-31

Williamson v. Lee Optical of Okla., Inc.,

348 U.S. 483 (1955).............................................................. 29

Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008) ................................................................. 18

Constitution, statutes, orders, and rule:

U.S. Const. Amend. V ............................................................. 1

10 U.S.C. 505(a) ....................................................................... 3

Idaho Code Ann. § 33-6202(11) ............................................ 23

W. Va. Code Ann. § 18-2-25d(a)(4) ....................................... 23

Exec. Order No. 14,004 (Jan. 25, 2021),

86 Fed. Reg. 7471 (Jan. 28, 2021) ...................................... 10

Orders and rule—Continued:

Page

Exec. Order No. 14,183 (Jan. 27, 2025),

90 Fed. Reg. 8757 (Feb. 3, 2025) ........................... 10, 11, 13

Fed. R. App. P. 41(b) ............................................................. 16

Miscellaneous:

American Psychiatric Ass’n:

Diagnostic and Statistical Manual of Mental

Disorders (3d ed. 1980) .................................................. 4

Diagnostic and Statistical Manual of Mental

Disorders (4th ed. 1994) ................................................ 4

Diagnostic and Statistical Manual of Mental

Disorders (5th ed. 2013) ...........................4, 5, 14, 21, 25

Expert Q & A: Gender Dysphoria,

www.psychiatry.org/patients-families/

gender-dysphoria/expert-q-and-a

(last visited Feb. 14, 2018) ............................................. 5

83 Fed. Reg. 13,367 (Mar. 23, 2018) ....................................... 7

In the Supreme Court of the United States

No. XX-XX

UNITED STATES OF AMERICA, ET AL., PETITIONERS

NICOLAS TALBOTT, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a109a) is reported at 176 F.4th 720. The opinion and order of the district court declining to dissolve the preliminary injunction (App., infra, 166a-184a) are available at

775 F. Supp. 3d 445. The opinion and order of the district

court granting a preliminary injunction (App., infra, 185a279a) are reported at 775 F. Supp. 3d 283.

JURISDICTION

The judgment of the court of appeals was entered on

June 1, 2026. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment provides in pertinent part that

no “person” shall “be deprived of life, liberty, or property, without due process of law.” U.S. Const. Amend. V.

(1)

INTRODUCTION

After President Trump returned to office, the Department of War adopted a policy similar to one it had

adopted eight years ago. Under this policy, individuals

with a history of gender dysphoria or related interventions are generally disqualified from military service.

The Department adopted the policy because Secretary

Hegseth determined, as Secretary Mattis had before, that

“the medical, surgical, and mental health constraints”

on such individuals “are incompatible with the high mental and physical standards necessary for military service.” C.A. App. 48; see id. at 69.

Two district courts preliminarily enjoined the Hegseth policy. This Court stayed one of those injunctions

pending further review, United States v. Shilling, 145

S. Ct. 2695 (2025), as it had stayed injunctions against

the Mattis policy, e.g., Trump v. Karnoski, 586 U.S. 1124

(2019). This case involves the other injunction. The court

of appeals upheld the injunction as to respondents already

serving in the military. The court asserted that the policy likely denies equal protection because it reflects invidious discrimination against trans-identifying people.

That gravely erroneous holding warrants this Court’s

review. The authority of the U.S. military to determine

who may serve in the Nation’s armed forces is a matter

of exceptional importance. Whether the Constitution

prohibits the military from exercising that authority by

adopting a policy like the one here is a recurring issue,

which has arisen before and will likely arise again absent this Court’s review. The Court should thus take this

opportunity to address the constitutionality of the Hegseth policy and reverse the decision below, whose reasoning cannot be squared with this Court’s precedents

or deference to the military.

STATEMENT

A. The Military’s Policies

1. To assemble a military of “qualified, effective, and

able-bodied persons,” 10 U.S.C. 505(a), the Department

of War has traditionally set demanding medical standards for military service, C.A. App. 73. “The purpose of

the Armed Forces is to fight and win the Nation’s wars.”

Ibid. “No human endeavor is more physically, mentally,

and emotionally demanding than the life and death

struggle of battle.” Ibid. “To give all Service members

the best chance of success and survival in war, the Department must maintain the highest possible standards

of physical and mental health and readiness across the

force.” Ibid.

The Department maintains two sets of medical standards: accession standards, which govern “induction into

the Armed Forces”; and retention standards, which govern “the retention and separation of those already serving” in the military. C.A. App. 78. The accession standards list hundreds of medical conditions as generally

disqualifying. Id. at 942-983. The list includes any history of cataracts, cluster headaches, shoulder dislocation, or diabetes mellitus. Id. at 944, 967, 973, 977. Also

disqualifying is any history of obsessive-compulsive disorders, eating disorders, bipolar disorders, or suicidality. Id. at 980-981. Because of the Department’s rigorous accession standards, “[t]he vast majority of Americans from ages 17 to 24—that is, 71%—are ineligible to

join the military without a waiver.” Id. at 77.

The Department’s retention standards likewise list

hundreds of conditions as generally “disqualifying.” C.A.

App. 514 (capitalization omitted). Some conditions, such

as epilepsy and schizophrenia, are simply “not compatible with retention.” Id. at 536, 537. Other conditions,

such as anxiety and depressive disorders, are disqualifying under certain circumstances—for instance, if they

“[r]equire persistent duty modifications to reduce psychological stressors or enhance safety.” Id. at 538.

2. In general, the Department has aligned the mental disorders it has deemed disqualifying with those in

the Diagnostic and Statistical Manual of Mental Disorders (DSM ), published by the American Psychiatric

Association (APA). C.A. App. 81. The 1980 edition of the

DSM recognized “[t]ranssexualism” as a disorder whose

“essential features” were “a persistent sense of discomfort and inappropriateness about one’s anatomic sex

and a persistent wish to be rid of one’s genitals and to

live as a member of the other sex.” APA, Diagnostic and

Statistical Manual of Mental Disorders 261-262 (3d ed.

1980). When the DSM was updated in 1994, “transsexualism” was subsumed within the term “gender identity

disorder.” APA, Diagnostic and Statistical Manual of

Mental Disorders 785 (4th ed. 1994) (capitalization omitted). Consistent with the DSM, the military at the time

treated a history of “transsexualism” as disqualifying

for accession, C.A. App. 81, and a “permissible basis”

for separation, id. at 78. The military also treated associated interventions, such as a history of “genital surgery,” as disqualifying. Id. at 81.

In 2013, when the APA published the fifth edition of

the DSM (known as the DSM-5), it replaced the term

“gender identity disorder” with “gender dysphoria.”

C.A. App. 83. The DSM-5 defines gender dysphoria as

a “marked incongruence between one’s experienced/

expressed gender and assigned gender, of at least 6

months’ duration,” that is “manifested” in various specified ways and is “associated with clinically significant

distress or impairment in social, occupational, or other

important areas of functioning.” APA, Diagnostic and

Statistical Manual of Mental Disorders 452-453 (5th

ed. 2013) (DSM -5); see C.A. App. 1292. According to

the DSM-5, some individuals with gender dysphoria

may desire cross-sex hormone interventions or sexreassignment surgery. DSM-5, at 454. The DSM-5 further observes that adults with gender dysphoria are at

“increased risk for suicidal ideation, suicide attempts,

and suicides,” ibid., and “may have coexisting mental

health problems, most commonly anxiety and depressive disorders,” id. at 459.

Under the DSM-5, “gender dysphoria” and “transgender” are distinct terms: Whereas “transgender refers

to the broad spectrum of individuals who transiently or

persistently identify with a gender different from their

natal [i.e., birth] gender,” “gender dysphoria refers to the

distress that may accompany the incongruence between

one’s experienced or expressed gender and one’s assigned gender.” DSM-5, at 451 (capitalization omitted).

The DSM-5 emphasizes that “not all individuals will experience distress as a result of such incongruence,” and

that the term “gender dysphoria,” unlike the previous

term “gender identity disorder,” “focuses on dysphoria

as the clinical problem, not identity per se.” Ibid. (capitalization omitted); see C.A. App. 91 (“ ‘[N]ot all transgender people suffer from gender dysphoria and that distinction,’ * * * , ‘is important to keep in mind.’ ”) (quoting

APA, Expert Q & A: Gender Dysphoria (Feb. 14, 2018)).

3. In 2016, then-Secretary of Defense Ashton Carter

adopted a new policy on “military service of transgender

service members.” C.A. App. 411 (capitalization omitted). Under that policy, a history of transsexualism would

no longer be disqualifying. Still, Secretary Carter recognized the need for “[m]edical standards” that “ensure

that those entering service are free of medical conditions or physical defects that may require excessive

time lost from duty.” Id. at 414. Secretary Carter therefore ordered the military to adopt, by July 2017, new accession standards treating a history of “gender dysphoria,” “medical treatment associated with gender transition,” or “sex reassignment or genital reconstruction

surgery” as “disqualifying,” subject to certain exceptions. Id. at 414-415. For example, a “history of gender

dysphoria” would be “disqualifying, unless, as certified

by a licensed medical provider, the applicant has been

stable without clinically significant distress or impairment in social, occupational, or other important areas of

functioning for 18 months.” Id. at 414 (emphasis omitted).

Secretary Carter also adopted new retention standards for the military, effective immediately. C.A. App.

414. Although the military has historically required all

servicemembers to serve in their biological sex, the

Carter policy created an exception for servicemembers

diagnosed with gender dysphoria. Id. at 415. Under the

Carter policy, those servicemembers could undergo

“[g]ender transition” and serve in the opposite sex—

even though, as Secretary Carter acknowledged, “[g]ender transition while serving in the military presents

unique challenges associated with addressing the needs

of the Service member in a manner consistent with military mission and readiness needs.” Ibid.

All other servicemembers, including trans-identifying

servicemembers who did “not meet the clinical criteria

for gender dysphoria,” “remain[ed] subject to the standards and requirements applicable to their biological sex.”

C.A. App. 86. Thus, trans-identifying servicemembers

without gender dysphoria had to use the berthing, bathroom, and shower facilities corresponding to their sex.

Ibid.; see id. at 100. They also had to meet the physicalfitness, body-fat, uniform, and grooming standards applicable to their sex. See id. at 100-101.

4. In June 2017—before the Carter accession standards were set to take effect—then-Secretary of Defense

James Mattis determined, “after consultation with the

Secretaries and Chiefs of Staff of each Service,” that it

was necessary to defer those standards until the military

could “ ‘evaluate more carefully’ ” their potential effect

“ ‘on readiness and lethality.’ ” C.A. App. 88. Secretary

Mattis established a panel of experts to “conduct an independent multi-disciplinary review and study of relevant data and information pertaining to transgender Service members.” Ibid. The panel consisted of “senior uniformed and civilian Defense Department and U.S. Coast

Guard leaders.” Id. at 68. After “extensive review and

deliberation” over several months, the panel “exercised

its professional military judgment” and presented its independent recommendations to the Secretary. Id. at 89.

In February 2018, Secretary Mattis sent President

Trump a memorandum proposing a new policy consistent

with the panel’s conclusions, along with a lengthy report

explaining the policy. C.A. App. 68-115. Recognizing

that the new policy reflected “the exercise of [Secretary

Mattis’s] independent judgment,” the President issued

a memorandum permitting the military “to implement”

it. 83 Fed. Reg. 13,367, 13,367 (Mar. 23, 2018).

The Mattis policy, like the Carter policy before it, required servicemembers without a history or diagnosis

of gender dysphoria to serve in their “biological sex.”

C.A. App. 75. But the Mattis policy took a different approach for servicemembers diagnosed with gender dysphoria. Whereas the Carter policy accommodated their

“[g]ender transition” despite the “unique challenges as-

sociated with” doing so, id. at 415, the Mattis policy determined that “making accommodations for gender transition” would “likely undermine” “military effectiveness

and lethality,” id. at 112. Instead of allowing servicemembers diagnosed with gender dysphoria to undergo

“gender transition” and serve in the opposite sex, the

Mattis policy generally treated such a diagnosis as disqualifying. Ibid. Thus, under the Mattis policy, individuals with a history or diagnosis of gender dysphoria, or

who were seeking or had undergone gender transition,

were “generally disqualified” from both “accession” and

“retention.” Id. at 69.

Although the Mattis policy recognized certain exceptions to that rule, the exceptions were “[l]imited.” C.A.

App. 112. For example, a “history of gender dysphoria”

disqualified applicants from joining the military unless

they could “demonstrate 36 consecutive months of stability

—i.e., absence of gender dysphoria—immediately preceding their application,” and could show that “they ha[d]

not transitioned to the opposite gender” and “[we]re

willing and able to adhere to all standards associated

with their biological sex.” Id. at 113. Similarly, a diagnosis of gender dysphoria after joining the military was

cause for separation unless the servicemember was “willing and able to adhere to all standards associated with

[the servicemember’s] biological sex, the Service member d[id] not require gender transition, and the Service

member [wa]s not otherwise non-deployable for more

than 12 months or for a period of time in excess of that

established by Service policy (which may be less than 12

months).” Ibid. The Mattis policy also provided an exemption for existing servicemembers who were diagnosed with gender dysphoria while the Carter policy was

in effect, allowing them to continue to serve in the opposite sex. Id. at 69, 76-77.

Several district courts entered universal preliminary

injunctions against the Mattis policy on the view that

the policy was a “ban on military service by openly transgender people.” Karnoski v. Trump, No. 17-cv-1297,

2018 WL 1784464, at *1 (W.D. Wash. Apr. 13, 2018), vacated, 926 F.3d 1180 (9th Cir. 2019); see Doe v. Trump,

315 F. Supp. 3d 474, 492 (D.D.C. 2018), rev’d, 755 Fed.

Appx. 19 (D.C. Cir. 2019); Stockman v. Trump, 331

F. Supp. 3d 990, 1001 (C.D. Cal. 2018), vacated, No. 1856539, 2019 WL 6125075 (9th Cir. Aug. 26, 2019). In

three cases, the government sought from this Court a

writ of certiorari before judgment or, in the alternative,

a stay of the injunction pending further review. See

Trump v. Karnoski, Nos. 18-676, 18A625; Trump v. Doe,

Nos. 18-677, 18A626; Trump v. Stockman, Nos. 18-678,

18A627. The government emphasized that “the Mattis

policy turn[ed] on a medical condition (gender dysphoria) and related treatment (gender transition)”—rather

than trans-identifying status—and was consistent with

equal protection. Pet. at 19, Trump v. Karnoski, No. 18676 (Nov. 23, 2018); see id. at 19-25.

While the government’s requests were pending in this

Court, the D.C. Circuit vacated the injunction in one of

the cases. See Doe v. Shanahan, 755 Fed. Appx. 19 (2019)

(per curiam); Doe v. Shanahan, 917 F.3d 694 (2019)

(separate opinions). Soon after, this Court granted stays

of the injunctions in the other two cases. See Trump v.

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

586 U.S. 1124 (2019). After a district court stayed a fourth

preliminary injunction, see Stone v. Trump, No. 17-cv2459, 2019 WL 5697228, at *3 (D. Md. Mar. 7, 2019), the

Mattis policy went into effect, see App., infra, 118a-119a.

5. In 2021, President Biden revoked President

Trump’s memorandum permitting implementation of

the Mattis policy. Exec. Order No. 14,004, § 2 (Jan. 25,

2021), 86 Fed. Reg. 7471, 7472 (Jan. 28, 2021). Thereafter, then-Secretary of Defense Lloyd Austin issued new

accession standards, but those standards still treated a

history of “gender dysphoria,” “gender affirming surgery,” or “gender-affirming hormone therapy” as disqualifying under specified circumstances. C.A. App. 957,

959, 975, 981. For example, a “[h]istory of gender dysphoria” disqualified an applicant from joining the military if the condition was “[s]ymptomatic within the previous 18 months” or was “[a]ssociated with comorbid mental health disorders.” Id. at 981. Secretary Austin also

issued new retention standards that permitted servicemembers diagnosed with gender dysphoria to undergo

“gender transition” and serve in the opposite sex, id. at

449-450, but required “all other Service members,” including “transgender Service members” without such a

diagnosis, to serve in their biological sex, id. at 448.

6. Soon after returning to office in January 2025,

President Trump declared it to be “the policy of the

United States Government to establish high standards

for troop readiness, lethality, cohesion, honesty, humility, uniformity, and integrity.” Exec. Order No. 14,183

(Jan. 27, 2025), 90 Fed. Reg. 8757, 8757 (Feb. 3, 2025).

The President found that policy “inconsistent with the

medical, surgical, and mental health constraints on individuals with gender dysphoria.” Ibid. The President

also found that policy “inconsistent with shifting pronoun

usage or use of pronouns that inaccurately reflect an individual’s sex.” Ibid. The President thus ordered the

Department to update the military’s accession and retention standards. Id. at 8757-8758. He also directed it

“to end invented and identification-based pronoun usage.” Id. at 8758.

In February 2025, Secretary of War Pete Hegseth

issued a new policy with updated accession and retention standards. C.A. App. 48-60. The Hegseth policy

was based on “consideration of, among other things, the

President and Secretary’s written direction, existing

and prior DoD policy, and prior DoD studies and reviews of service by individuals with gender dysphoria.”

Id. at 64. That consideration included Secretary Mattis’s

2018 memorandum, which determined, based on the

work of a panel of experts, that “there are substantial

risks associated with allowing accession and retention

of individuals with a history or diagnosis of gender dysphoria”; a 2021 review conducted by the Department’s

Psychological Health Center of Excellence and other

researchers within the Department, which “found that

nearly 40% of Service members with gender dysphoria

in an observed cohort were non-deployable over a 24

month period”; a 2025 medical-literature review conducted by the Office of the Assistant Secretary of Defense for Health Affairs, which reported that “the suicide attempt rate is estimated to be 13 times higher

among transgender individuals compared to their cisgender counterparts,” and that “the strength of evidence

on transgender mental health and gender-affirming care

is low to moderate”; and a review of cost data by the

Office of the Assistant Secretary of Defense for Health

Affairs, which found that, “between 2015 and 2024, DoD

spent $52,084,407 providing care to active duty Service

members to treat gender dysphoria.” Id. at 64-65.

Based on its review, the Department determined that,

“[w]hile Service members with gender dysphoria volunteered to serve their country, the costs associated with

their health care, coupled with the medical and readiness risks associated with their diagnosis and associated treatment that can limit their deployability, make

continued service by such individuals incompatible with

the Department’s rigorous standards and national security imperative to deliver a ready, deployable force.” C.A.

App. 65. Accordingly, the Hegseth policy, like the Mattis

policy before it, generally disqualifies from military service individuals who have a history or current diagnosis

of gender dysphoria, who “exhibit symptoms consistent

with” gender dysphoria, or who have a history of “crosssex hormone therapy or sex reassignment or genital reconstruction surgery as treatment for gender dysphoria

or in pursuit of a sex transition.” Id. at 53, 55.

The exceptions to that rule are narrower under the

Hegseth policy than under the Mattis policy. The Hegseth policy allows the Department to waive the rule “on

a case-by-case basis” only “where there is a compelling

Government interest” that “directly supports the Department’s warfighting capabilities,” such as where an

otherwise disqualified individual has “special experience,

special training, and advanced education in a highly

technical career field designated as mission critical and

hard to fill.” C.A. App. 210. To be eligible for a waiver,

an individual must “demonstrate[] 36 consecutive months

of stability in the individual’s sex,” and show that he or

she “has never attempted to transition to any sex other

than his or her sex” and “is willing and able to adhere

to all applicable standards, including the standards associated with his or her sex.” Id. at 210-211. The Hegseth policy also does not provide an exemption allowing

certain existing servicemembers to serve in the opposite sex, as the Mattis policy had.

Finally, the Hegseth policy, like the Carter, Mattis,

and Austin policies before it, requires servicemembers

without gender dysphoria to serve “in accordance with

their sex.” C.A. App. 50. The Hegseth policy further provides that “[p]ronoun usage when referring to Service

members must reflect a Service member’s sex.” Ibid.

B. Procedural History

1. Respondents are various trans-identifying individuals who brought suit in the United States District

Court for the District of Columbia, challenging Executive Order No. 14,183 and the Hegseth policy as a violation of equal protection. Fourth Am. Compl. ¶¶ 416-438.

When they filed the operative complaint, some respondents were serving in the military, while others were

hoping to join it. Id. ¶ 16. Each respondent has a history of gender dysphoria or related interventions. Id.

¶¶ 27-28, 38, 48, 58, 71, 82, 88, 109, 115, 124, 136, 148,

157, 163, 167, 170, 185-186, 198, 206, 212, 221, 230, 238,

247, 256, 262, 267, 280, 289, 300, 308.

In March 2025, the district court entered a universal

preliminary injunction that prohibited the government

from implementing Executive Order No. 14,183 or the

Hegseth policy and that required the government to

maintain the Austin policy. App., infra, 185a-279a. The

court held that respondents were likely to succeed on

their equal-protection claim. Id. at 233a-274a. The court

characterized the Hegseth policy as a ban on “all transgender troops,” id. at 210a (capitalization omitted), reasoning that by disqualifying even those who “ ‘exhibit

symptoms consistent with gender dysphoria,’ ” the policy disqualified some “who have never had gender dysphoria,” id. at 258a (brackets omitted). The court then

concluded that discrimination based on trans-identifying

status triggers intermediate scrutiny. Id. at 241a-263a.

But the court further held that the policy would fail even

rational-basis review because, in its view, the policy was

“driven exclusively by animus.” Id. at 271a; see id. at

263a-274a. The court further concluded that respondents satisfied the other preliminary-injunction factors.

Id. at 274a-278a.

After the district court’s ruling, the Department issued guidance clarifying that, for purposes of the Hegseth policy, “symptoms consistent with gender dysphoria” means “symptoms as would be sufficient to constitute a diagnosis” under the criteria set forth in the

DSM-5. C.A. App. 1289 n.2. The government explained

that the guidance confirmed that the Hegseth policy

“turns on gender dysphoria—a medical condition—and

does not discriminate against trans-identifying persons

as a class.” D. Ct. Doc. 91, at 2 (Mar. 21, 2025). The government therefore moved to dissolve the preliminary injunction. Id. at 1-2.

The district court denied the motion, App., infra,

166a-184a, reiterating its view that the Hegseth policy

“excludes all transgender troops,” id. at 175a, and reflects “animus directed at transgender persons,” id. at

172a. The court also declined to stay its injunction pending appeal. Id. at 183a-184a.

2. The government appealed the injunction and asked

the D.C. Circuit for a stay pending appeal. App., infra,

8a. The court of appeals granted an administrative stay

and heard oral argument on the government’s stay motion. Ibid. While that motion was pending, this Court

granted a stay of a universal preliminary injunction

against the Hegseth policy entered by the United States

District Court for the Western District of Washington.

See United States v. Shilling, 145 S. Ct. 2695 (2025).

The Court stayed that injunction in its entirety pending

further review. Ibid. 1

The D.C. Circuit then granted a stay pending appeal

of the injunction in this case. App., infra, 110a-165a.

Judge Katsas filed a concurring statement, joined by

Judge Rao, explaining that the Hegseth policy “is likely

constitutional because it reflects a considered judgment

of military leaders and furthers legitimate military interests.” Id. at 125a; see id. at 112a-136a. Judge Pillard

dissented, id. at 137a-165a, characterizing the Hegseth

policy as “a complete ban on military service by transgender individuals,” id. at 149a, that is “driven by animus,” id. at 146a.

3. After merits briefing and oral argument, a different panel of the D.C. Circuit vacated in part and affirmed

in part the injunction. App., infra, 1a-109a.

A majority of the panel—Judges Wilkins and Rogers

—concluded that respondents are likely to succeed on

the merits of their equal-protection challenge to the Hegseth policy. App., infra, 3a, 55a-56a. In separate opinions, both judges took the view that the policy was “based

upon animus” and failed even rational-basis review. Id.

at 3a; see id. at 40a-45a, 55a-56a. Judge Walker dissented

from that view of the policy’s constitutionality. Id. at

65a-109a. Describing the majority’s decision as an “unprecedented intervention into military affairs,” id. at

66a, he would have upheld the Hegseth policy because

The government’s appeal of the preliminary injunction in Shilling remains pending before the Ninth Circuit. Although the appeal

was argued in October 2025, the Ninth Circuit recently directed the

parties to file supplemental briefs addressing the effect of this

Court’s decision in West Virginia v. B.P.J., 146 S. Ct. 2356 (2026).

After the parties filed their briefs, the Ninth Circuit indicated that

it would schedule reargument “in due course.” C.A. Doc. 94 (Aug.

19, 2026), Shilling v. Trump (9th Cir.) (No. 25-2039).

it “has a legitimate grounding in national security concerns,” id. at 106a, and because “courts reviewing a constitutional challenge to a military policy must give ‘great

deference’ to the political branches’ professional military judgments,” id. at 89a.

Turning to the scope of the injunction, the panel held

that the district court erred in granting a universal injunction. See App., infra, 50a-51a, 64a (citing Trump v.

CASA, Inc., 606 U.S. 831 (2025)). Judge Wilkins also

concluded that the district court failed to properly weigh

the equities in deciding to enjoin the application of the

Hegseth policy to those respondents “seeking admission to the military.” Id. at 50a. He and Judge Walker

therefore voted to vacate the injunction with respect to

those respondents seeking admission. Id. at 4a, 73a n.38.

Judges Wilkins and Rogers agreed, however, that the

balance of equities supported enjoining the application

of the Hegseth policy to those respondents “already in

the military.” Id. at 3a-4a. Accordingly, the court of appeals affirmed the injunction with respect to current

servicemembers. Ibid. 2

REASONS FOR GRANTING THE PETITION

The court of appeals declared likely unconstitutional

a policy that the military has determined is necessary

to maintain its “rigorous standards” and “deliver a

ready, deployable force.” C.A. App. 65. The constitutionality of that policy raises an issue of exceptional and

recurring importance. And the decision below seriously

erred in concluding that the policy could not satisfy

After the court of appeals issued its decision in this case, the

government moved for a stay of that court’s mandate pending any

further review in this Court. See Gov’t C.A. Mot. to Stay Mandate

(July 16, 2026). The court of appeals has yet to rule on that motion,

and so the mandate has not issued. See Fed. R. App. P. 41(b).

rational-basis review. As there is no sound reason for

this Court to defer plenary review, it should grant the

petition for a writ of certiorari.

A. The Question Presented Warrants This Court’s Review

1. This Court has previously granted a stay of a preliminary injunction against the Hegseth policy. See

United States v. Shilling, 145 S. Ct. 2695 (2025). In

granting that stay in full—including as to the individual

respondents—the Court necessarily determined that the

constitutional question raised by that injunction likely

warrants certiorari. See Hollingsworth v. Perry, 558

U.S. 183, 190 (2010) (per curiam). The injunction here

raises the same constitutional question: whether the

Hegseth policy is consistent with equal protection. App.,

infra, 3a. As this Court’s decision to stay the injunction

in Shilling indicates, that issue is one of exceptional importance, warranting plenary review.

The importance of the issue lies in what it concerns:

the authority of the federal government to determine

who may serve in the Nation’s armed forces. “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.”

App., infra, 123a (Katsas, J., concurring in stay) (quoting Gilligan v. Morgan, 413 U.S. 1, 10 (1973)). Given

that delegation of authority, this Court has recognized

that the Judiciary “must give great deference to the

professional judgment of military authorities” “charged

by the Executive and Legislative Branches with carrying out our Nation’s military policy.” Goldman v. Weinberger, 475 U.S. 503, 507-508 (1986); see p. 22, infra.

Exercising that professional judgment here, the Department of War determined that “the medical, surgical, and mental health constraints” on individuals with

gender dysphoria “are incompatible with the high mental and physical standards necessary for military service.” C.A. App. 48. The court of appeals nevertheless

declared the Hegseth policy likely unconstitutional, App.,

infra, 3a, 55a-56a, and blocked the full implementation

of a policy that the Department has deemed necessary

to maintain its “rigorous standards” and “deliver a ready,

deployable force,” C.A. App. 65.

If allowed to stand, the court of appeals’ decision

would represent an “unprecedented intervention into

military affairs,” in contravention of this Court’s precedents requiring “defer[ence] to the political branches’

military judgments.” App., infra, 66a, 76a (Walker, J.,

dissenting). The decision below thus raises an issue of

profound significance, warranting this Court’s review.

See, e.g., Winter v. Natural Res. Def. Council, Inc., 555

U.S. 7, 12 (2008) (granting certiorari to review a decision upholding “a preliminary injunction imposing restrictions on the Navy’s sonar training”); Department

of the Navy v. Egan, 484 U.S. 518, 520 (1988) (granting

certiorari to address interference with Executive Branch

determinations that were of “importance * * * to national security concerns”).

Indeed, this Court frequently grants review of lowercourt decisions blocking significant federal policies or

programs, even outside the military context. See, e.g.,

Trump v. Barbara, 146 S. Ct. 2438 (2026); Trump v.

Slaughter, 146 S. Ct. 2283 (2026); Mullin v. Doe, 146

S. Ct. 2121 (2026); Mullin v. Al Otro Lado, 146 S. Ct.

2079 (2026); Trump v. V.O.S. Selections, Inc., 607 U.S.

229 (2026). And the Court has previously granted certiorari to address disputes over policies concerning individuals with gender dysphoria. See, e.g., West Virginia v. B.P.J., 146 S. Ct. 2356 (2026); Chiles v. Salazar,

146 S. Ct. 1010 (2026); United States v. Skrmetti, 605

U.S. 495 (2025). The Court should follow the same course

here—especially since the decision below repeatedly

flouts this Court’s reasoning in B.P.J. and Skrmetti, see

pp. 22-24, 28-30, infra.

2. The question presented also is recurring. Eight

years ago, when President Trump allowed Secretary

Mattis to implement a policy that generally disqualified

individuals with a history or diagnosis of gender dysphoria from military service, plaintiffs challenged the

policy in court, arguing that it was a violation of equal

protection. See pp. 7-9, supra. The government argued

that the policy was rationally grounded in legitimate concerns about a medical condition and related interventions, see, e.g., Pet. at 19, Trump v. Karnoski, No. 18-676

(Nov. 23, 2018); lower courts instead regarded the policy as an unconstitutional “[b]an” and enjoined it, e.g.,

Karnoski v. Trump, No. 17-cv-1297, 2018 WL 1784464,

at *1 (W.D. Wash. Apr. 13, 2018); and this Court stayed

those injunctions, thereby allowing the military to implement the Mattis policy, see pp. 9-10, supra.

The current Administration saw that pattern repeat

itself. When Secretary Hegseth adopted his policy in

response to the President’s Executive Order, plaintiffs

challenged the policy as a violation of equal protection.

See pp. 11-13, supra. The government defended the

policy as turning on a medical condition and related interventions, App., infra, 122a-130a (Katsas, J., concurring in stay); lower courts instead regarded the policy

as an unconstitutional “[b]an” and enjoined it, id. at

189a; and this Court stayed one of those injunctions, see

Shilling, 145 S. Ct. at 2695. The constitutionality of a

military policy like this one is thus an issue that has

arisen before—and will likely arise again absent this

Court’s plenary review.

3. There is no sound reason to defer review. The relevant issues have been fully ventilated in the lower

courts, including by two three-judge panels and a district judge in this case alone. See App., infra, 1a-279a;

pp. 13-16, supra; Shilling v. United States, 773 F. Supp.

3d 1069 (W.D. Wash. 2025). This Court often grants certiorari in the same posture, to review decisions affirming the grant of preliminary relief against important

government policies. See, e.g., FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 377-378 (2024); DHS v.

New York, 141 S. Ct. 1370 (2021); Little Sisters of the

Poor Saints Peter & Paul Home v. Pennsylvania, 591

U.S. 657, 673-674 (2020); Trump v. Hawaii, 585 U.S.

667, 681-682 (2018).

The fact that the court of appeals affirmed the injunction only in part—i.e., only with respect to those respondents already in the military—does not weigh against

granting certiorari. App., infra, 3a-4a. The proper scope

of the injunction presents a separate issue from the

merits of respondents’ equal-protection challenge. As to

the merits, the court declared the Hegseth policy likely

unconstitutional for both current and aspiring servicemembers alike. Id. at 3a, 55a-56a. That holding does not

distinguish between individuals already in the military

and those seeking to join it. Indeed, if the government

prevails on the merits, the validity of the policy for aspiring servicemembers will follow a fortiori from this

Court’s upholding the policy for current servicemembers, because the military has especially wide discretion

in determining who may join in the first place. Cf. id.

at 49a (Wilkins, J.) (noting that, unlike for those with existing service records, applicants for admission require

the military to make a purely “predictive judgment”

about whether their presence would “harm[] national

security”). In sum, because the constitutionality of the

Hegseth policy presents a recurring issue of exceptional

importance, this Court should grant certiorari.

B. The Decision Below Is Wrong

The Hegseth policy is not a likely violation of equal

protection. It neither discriminates, nor reflects bias,

against any suspect or quasi-suspect class. Instead, like

the Carter, Mattis, and Austin policies before it, the Hegseth policy draws classifications based on a medical condition (gender dysphoria) and related interventions. Especially given the military context, the Hegseth policy

is subject only to rational-basis review, which it easily

satisfies. The contrary conclusions of the courts below are

irreconcilable with this Court’s precedents governing

military deference and gender-identity discrimination.

1. The Hegseth policy is subject only to rational-basis

review

a. Gender dysphoria is a medical condition “associated with clinically significant distress or impairment in

social, occupational, or other important areas of functioning.” DSM-5, at 453. The Hegseth policy generally

disqualifies from military service individuals with gender dysphoria. C.A. App. 53, 55. It also generally disqualifies from military service individuals who have received related interventions—i.e., “cross-sex hormone

therapy or sex reassignment or genital reconstruction

surgery.” Id. at 53; see id. at 55. The Hegseth policy

thus turns on a medical condition (gender dysphoria)

and related interventions.

There is nothing suspect about those classifications.

The same classifications appear in the DSM-5 and in the

Department’s prior Carter, Mattis, and Austin policies.

See pp. 6, 8, 10, supra. In Skrmetti, moreover, this Court

applied rational-basis review to a law prohibiting the

use of hormones to treat gender dysphoria in minors.

605 U.S. at 510-519. Because the Hegseth policy likewise draws lines based on gender dysphoria and related

interventions, the Hegseth policy is subject only to

rational-basis review.

Because that would be true even in the civilian context, it follows a fortiori in the military context. Any

greater level of scrutiny would conflict with the “healthy

deference” that the political branches are owed “in the

area of military affairs.” Rostker v. Goldberg, 453 U.S.

57, 66 (1981) (upholding Congress’s decision to exclude

women from Selective Service registration). That deference reflects the recognition “[n]ot only” that “courts

[are] ‘ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have,’ ” but also that “military authorities have

been charged by the Executive and Legislative Branches

with carrying out our Nation’s military policy.” Goldman, 475 U.S. at 507-508 (upholding Air Force’s decision to prohibit clinical psychologist from wearing a yarmulke while in uniform). Thus, even if an analogous policy in the civilian context would call for closer scrutiny,

the military’s Hegseth policy would still be subject only

to the most deferential standard of review. See id. at 507;

Rostker, 453 U.S. at 67.

b. Contrary to the district court’s conclusion, the

Hegseth policy does not discriminate based on transidentifying status. The court relied on social-media posts

to conclude that it does. App., infra, 189a & n.2. But as

this Court’s decision in B.P.J. shows, the district court’s

reliance on those posts was misplaced. Although the laws

at issue in B.P.J. were accompanied by legislative findings about “gender identity,” W. Va. Code Ann. § 18-225d(a)(4), and “gender-affirming treatment in transgender individuals,” Idaho Code Ann. § 33-6202(11), the

Court rejected the contention that those laws “discriminate[d] against transgender individuals.” B.P.J., 146

S. Ct. at 2378. Instead, the Court examined the laws’

operative terms—which “determine[d] eligibility for

women’s and girls’ sports based on biological sex,” id.

at 2375—and concluded that they “classify on the basis

of biological sex,” id. at 2378. Here, the operative terms

of the Hegseth policy classify based on a medical condition (gender dysphoria) and related interventions. The

district court erred in looking beyond those terms to determine the “basis” on which the Hegseth policy “classif [ies].” Ibid.

The district court also reasoned that the Hegseth policy discriminates based on trans-identifying status because “only” trans-identifying individuals “experience

gender dysphoria.” App., infra, 167a. But this Court rejected similar reasoning in Skrmetti. The law in that

case “divide[d] minors into two groups: those who might

seek puberty blockers or hormones to treat the excluded

diagnoses, and those who might seek puberty blockers

or hormones to treat other conditions.” Skrmetti, 605

U.S. at 519. “Because only transgender individuals seek

puberty blockers and hormones for the excluded diagnoses, the first group include[d] only transgender individuals; the second group, in contrast, encompasse[d]

both transgender and nontransgender individuals.”

Ibid. Given that “ ‘lack of identity’ between transgender

status and the excluded medical diagnoses,” the Court

concluded that the law did not classify based on transidentifying status. Ibid. A similar lack of identity exists

here, for not “all transgender persons have gender dysphoria.” App., infra, 167a. So the district court erred

in concluding that the Hegseth policy discriminates

based on trans-identifying status.

In any event, even if the Hegseth policy discriminated

based on trans-identifying status, heightened scrutiny

would still be inappropriate. Trans-identifying people

are not a suspect or quasi-suspect class. See Skrmetti,

605 U.S. at 547-557 (Barrett, J., concurring); id. at 566578 (Alito, J., concurring in part and concurring in the

judgment). Moreover, discrimination based on transidentifying status cannot be equated with discrimination based on sex in this context. See B.P.J., 146 S. Ct.

at 2373 (declining to extend Bostock v. Clayton County,

590 U.S. 644 (2020), beyond the Title VII employmentdiscrimination context). And even if the two could be

equated, intermediate scrutiny would still be inappropriate because of the deference owed to the military.

See Hawaii, 585 U.S. at 703-704; Rostker, 453 U.S. at

66; p. 22, supra.

2. The Hegseth policy satisfies rational-basis review

a. Under rational-basis review, the government “has

no obligation to produce evidence to sustain the rationality of ” a policy. Heller v. Doe, 509 U.S. 312, 320 (1993).

Instead, the policy “is presumed constitutional,” and the

burden is on the challengers “ ‘to negative every conceivable basis which might support it,’ whether or not the

basis has a foundation in the record.” Id. at 320-321 (citation omitted). “Where there exist ‘plausible reasons’

for the relevant government action, ‘[the Court’s] inquiry is at an end.’ ” Skrmetti, 605 U.S. at 522.

Here, the government has undisputedly legitimate interests in maintaining military readiness, cohesion, and

good order and discipline, as well as in managing the

military’s costs. C.A. App. 65, 103-112. The Hegseth policy is rationally related to those interests. After all, gender dysphoria is a disorder “associated with clinically

significant distress or impairment in social, occupational,

or other important areas of functioning.” DSM-5, at 453.

Those whom the Hegseth policy disqualifies from military service are individuals who have presumably experienced such distress or impairment—and who may still

be experiencing, or may experience again in the future,

such distress or impairment. Disqualifying such individuals helps ensure that the military consists of those who

can meet “the high mental and physical standards necessary for military service.” C.A. App. 48.

To be sure, two of the military’s prior policies—i.e.,

the Carter and Austin policies—permitted individuals

with gender dysphoria to undergo “gender transition”

and serve in the opposite sex. See pp. 6, 10, supra. But

the Hegseth policy, like the Mattis policy before it, rests

on the Department’s considered military judgment that

“making accommodations for gender transition” would

“likely undermine” “military effectiveness and lethality.”

C.A. App. 112; see id. at 65.

First, accommodating gender transition as a way of

addressing gender dysphoria would “present a significant challenge for unit readiness.” C.A. App. 106. The

report accompanying the Mattis policy, which the Department considered in formulating the Hegseth policy,

noted the existence of “considerable scientific uncertainty” concerning whether “transition-related” interventions, such as “cross-sex hormone therapy” and “sex

reassignment surgery,” “fully remedy * * * the mental

health problems associated with gender dysphoria.” Id.

at 103; see id. at 64. The Mattis report reasoned, moreover, that even if such interventions could fully remedy

the “serious problems associated with gender dysphoria,” most servicemembers undergoing such interventions could be rendered “non-deployable for a potentially significant amount of time.” Id. at 106. The report

noted, for example, that some servicemembers would

have to leave their “theater of operations” to be able to

undergo “cross-sex hormone therapy or sex reassignment surgery.” Id. at 104. In formulating the Hegseth

policy, the Department also considered more recent reviews that reinforced the same points, including a 2025

medical-literature review that reported that “the strength

of evidence on transgender mental health and genderaffirming care is low to moderate,” and a 2021 review

that “found that nearly 40% of Service members with gender dysphoria in an observed cohort were non-deployable

over a 24 month period.” Id. at 64-65.

Second, accommodating gender transition as a way

of addressing gender dysphoria would undermine “unit

cohesion and good order and discipline.” C.A. App. 107;

see id. at 106-112. The military maintains separate berthing, bathroom, and shower facilities for each sex. Id. at

106. The Mattis report expressed concern that allowing

individuals who retained the anatomy of their sex to use

the facilities of their preferred gender “would invade

the expectations of privacy” of the other servicemembers

sharing those facilities. Id. at 108; see United States v.

Virginia, 518 U.S. 515, 550 n.19 (1996) (recognizing the

need “to afford members of each sex privacy from the

other sex in living arrangements”). The military also

maintains different sets of physical-fitness, body-fat,

uniform, and grooming standards for males and females,

in order to hold them to equivalent standards while accounting for their physiological differences. C.A. App.

106; see Bauer v. Lynch, 812 F.3d 340, 351 (4th Cir. 2016)

(rejecting sex-discrimination challenge to sex-based

physical-fitness standards for FBI trainees). The Mattis

report expressed concern, for instance, that allowing a

“biological male” to “compete against females in genderspecific physical training” would pose a serious safety

risk and generate perceptions of unfairness. C.A. App.

102; see id. at 100; B.P.J., 146 S. Ct. at 2375 (recognizing

that “limiting women’s and girls’ sports to biological females” is “substantially related to” “important” state interests in “safety and competitive fairness”); Bauer, 812

F.3d at 351 (recognizing that “the physiological differences between men and women impact their relative abilities to demonstrate the same levels of physical fitness”).

Third, accommodating gender transition as a way of

addressing gender dysphoria would be “disproportionately costly on a per capita basis.” C.A. App. 112. The

Mattis report cited the Department’s own experience

under the Carter policy. Ibid. The report explained that,

since implementation of the Carter policy, medical costs

for servicemembers with gender dysphoria had increased

nearly 300% compared to servicemembers without gender dysphoria. Ibid. Several commanders had also reported that providing servicemembers in their units

with transition-related interventions required the use

of “operations and maintenance funds to pay for * * *

extensive travel throughout the United States to obtain

specialized medical care.” Ibid. Particularly “in light

of the absence of solid scientific support for the efficacy

of [transition-related] treatment,” the Mattis report

found the costs of accommodating “gender transition”

excessive. Ibid. And in formulating the Hegseth policy,

the Department also considered a more recent review

that found that, “between 2015 and 2024, DoD spent

$52,084,407 providing care to active duty Service members to treat gender dysphoria.” Id. at 65.

In deciding not to accommodate gender transition as

a way of addressing gender dysphoria, the Department

specifically considered—and rejected—“prior DoD policy” that took a contrary approach. C.A. App. 64. That

“studied choice of one alternative in preference to another,” Rostker, 453 U.S. at 72, in light of “military operations and needs,” id. at 68, is precisely the type of

judgment deserving of deference, ibid. The Constitution does not authorize courts to second-guess the approach to gender dysphoria adopted by the Hegseth

policy (and by the Mattis policy before it). See B.P.J.,

146 S. Ct. at 2379 (emphasizing that courts “must be

cautious about swooping in and invalidating” policies

adopted “under circumstances of ‘medical and scientific

uncertainty’ ”) (quoting Skrmetti, 605 U.S. at 524).

b. The contrary reasoning below lacks merit. In declaring the Hegseth policy likely unconstitutional, Judge

Wilkins divided the category of individuals with a history of gender dysphoria into various subclasses (e.g.,

individuals with a “remote” history of gender dysphoria), and then expressed doubt that the Hegseth policy

was “sufficiently related” to each subclass. App., infra,

31a-32a. But this Court’s decision in B.P.J. forecloses

such a subclass-by-subclass approach even to intermediate scrutiny, much less rational-basis scrutiny.

In B.P.J., the plaintiffs argued that the States’ interests did “not justify excluding all biological males—

including those who identify as female and have taken

puberty blockers or hormones—from participation in

women’s and girls’ sports.” 146 S. Ct. at 2376. The Court

rejected that argument, explaining that, under intermediate scrutiny, the “validity” of a policy depends on “the

relation it bears to the general problem,” not on “the

extent to which it furthers the Government’s interest in

an individual case.” Ibid. The Court thus declined the

plaintiffs’ invitation to divide the category of “biological

males” into various subclasses and then ask whether the

States’ interests were sufficiently related to excluding

each subclass from women’s and girls’ teams. Id. at

2375. Even under heightened scrutiny, such a subclassby-subclass (or “individual-by-individual”) approach was

inappropriate. Id. at 2377.

It necessarily follows that such a subclass-by-subclass

approach is inappropriate here, where the applicable

level of scrutiny is only rational-basis and the military

is entitled to substantial deference. See, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487 (1955)

(upholding a law prohibiting any person who was not a

licensed optometrist or ophthalmologist from doing certain work without a prescription, even though “in many

cases” an unlicensed optician “c[ould] easily” do the

work “without” a prescription). There is no doubt that

the government’s interests are rationally related to excluding individuals with a history of gender dysphoria

from military service in general. After all, the prior

Carter, Mattis, and Austin policies all regarded gender

dysphoria as generally disqualifying. See pp. 6, 8, 10,

supra. Because the government’s interests are rationally related to excluding such individuals in “general,” a

court may not second-guess the extent to which the

Hegseth policy “furthers the Government’s interests in

an individual case.” B.P.J., 146 S. Ct. at 2376.

Judges Wilkins and Rogers also viewed the Hegseth

policy’s waiver provision as unjustifiably narrow. App.,

infra, 32a-33a, 57a-58a. But B.P.J. makes clear that the

scope of the waiver is constitutionally irrelevant. In

B.P.J., the plaintiffs argued that the laws violated equal

protection because they did not make an exception for

“biological males” who “identify as female and have

taken puberty blockers or hormones.” 146 S. Ct. at 2377.

The Court rejected that argument, explaining that as

long as the relationship between “the State’s classification and the State’s interests” is “sufficient as a general

matter, the State is not constitutionally required to

grant individualized exemptions to specific athletes or

subclasses.” Ibid.; see id. at 2380 (“[W]hen a sex-based

classification is justified as a constitutional matter, as it

is here, States need not make case-by-case exceptions—

for example, schools need not make individual exceptions to allow certain biological males to compete in

women’s and girls’ sports.”). The contention that the

Hegseth policy’s waiver provision is unjustifiably narrow fails for the same reason. Because the relationship

between the government’s interests and excluding individuals with a history of gender dysphoria (or related

interventions) is “sufficient as a general matter,” the

government “is not constitutionally required to grant

individualized exemptions to specific [servicemembers]

or subclasses.” Id. at 2377.

3. The Hegseth policy does not reflect animus

Finally, the courts below erred in declaring the Hegseth policy likely unconstitutional on the view that it reflects animus toward trans-identifying individuals. App.,

infra, 2a-3a, 40a-45a, 263a-274a. Under rational-basis

review, a court may infer animus only if the challenged

policy “lack[s] any purpose other than a ‘bare . . . desire

to harm.’ ” Hawaii, 585 U.S. at 705 (quoting Department

of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)). That

is not the case here. As explained, the Hegseth policy

can “reasonably be understood” to serve the govern-

ment’s legitimate interests. Ibid.; see pp. 24-28, supra.

Thus, “[i]t cannot be said that it is impossible to ‘discern

a relationship to legitimate state interests’ or that the

policy is ‘inexplicable by anything but animus.’ ” Hawaii, 585 U.S. at 706 (quoting Romer v. Evans, 517 U.S.

620, 632, 635 (1996)). As the challenged policy has “a

legitimate grounding” in the interests discussed above,

“quite apart from any [animus],” the Court “must accept

that independent justification.” Ibid.

In any event, any attempt to infer animus from references to “honesty,” “humility,” “integrity,” and “false

gender identity” is misplaced. App., infra, 42a. Those

references, which appear in the Executive Order and

other statements, do not reflect animus any more than

similar statements by Justice Thomas—that “[m]en and

boys with gender dysphoria are not women or girls,

even if they believe that they are”; that “[s]ex is an immutable ‘biological’ characteristic,” which is “binary”;

that “ ‘man’ and ‘woman,’ ‘boy’ and ‘girl,’ are the terms

that correspond to adults and children of each sex”; and

that “[t]o use language to obscure reality—to show ‘indifference regarding the truth’—is to lie to the public

and cease to treat our fellow citizens ‘as equals.’ ” B.P.J.,

146 S. Ct. at 2382 (Thomas, J., concurring) (brackets and

citations omitted).

Indeed, using the word “sex” to refer to someone’s

“biological sex and not gender identity” is what Congress

itself did in Title IX, as this Court has held. B.P.J., 146

S. Ct. at 2371 (majority opinion). There is likewise no

animus in requiring “[p]ronoun usage” to “reflect a Service member’s sex,” C.A. App. 50; see Trump v. Orr, 146

S. Ct. 44, 46 (2025) (finding no equal-protection problem

with “merely attesting to a historical fact”), or requiring

individuals who have no history of gender dysphoria or

related interventions to serve in accordance with their

sex (which is what the Carter, Mattis, and Austin policies all required too, see pp. 6-7, 10, supra). The courts

below thus failed to identify any evidence of animus—

let alone establish that the Hegseth policy is “inexplicable by anything but animus,” Hawaii, 585 U.S. at 706.

That conclusion follows a fortiori from this Court’s recent decision in Mullin v. Doe, supra. There, the Court

held that, assuming “heightened scrutiny” applied, certain “heated” statements “broadly denigrat[ing]” Haiti

and “malign[ing]” its people were “insufficient to show”

that race was a “ ‘motivating factor’ ” in terminating

Haiti’s Temporary Protected Status designation, because the statements had a “strong, race-neutral explanation.” 146 S. Ct. at 2138-2139.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

BRETT A. SHUMATE

Assistant Attorney General

HASHIM M. MOOPPAN

Deputy Solicitor General

ERIC D. MCARTHUR

Deputy Assistant

Attorney General

FREDERICK LIU

Assistant to the

Solicitor General

MARK R. FREEMAN

MICHAEL S. RAAB

ANDREW M. BERNIE

Attorneys

AUGUST 2026

APPENDIX

TABLE OF CONTENTS

Page

Appendix A — Court of appeals opinion (June 1, 2026)........ 1a

Appendix B — Court of appeals order granting a stay

pending appeal (Dec. 9, 2025) .............. 110a

Appendix C — District court memorandum opinion

and order declining to dissolve the

preliminary injunction and denying a

stay pending appeal (Mar. 26, 2025) .... 166a

Appendix D — District court order granting a

preliminary injunction

(Mar. 18, 2025) ....................................... 185a

Appendix E — District court memorandum opinion on

respondents’ renewed motion for a

preliminary injunction

(Mar. 18, 2025) ....................................... 188a

(I)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 25-5087

NICOLAS TALBOTT, ET AL., PLAINTIFF-APPELLEES

UNITED STATES OF AMERICA, ET AL.,

DEFENDANTS-APPELLANTS

Argued: Jan. 22, 2026

Decided: June 1, 2026

Appeal from the United States District Court

for the District of Columbia

(No. 1:25-cv-00240)

Before: WILKINS and WALKER, Circuit Judges, and

ROGERS , Senior Circuit Judge.

Opinion announcing the judgment of the Court filed

by Circuit Judge WILKINS.

Opinion concurring in part and dissenting in part

filed by Senior Circuit Judge ROGERS .

Dissenting opinion filed by Circuit Judge WALKER.

(1a)

WILKINS , Circuit Judge:

In the beginning days of his second term in office,

President Trump issued an Executive Order proclaiming that persons “expressing a false ‘gender identity’ divergent from an individual’s sex cannot satisfy the rigorous standards necessary for military service.” Exec.

Order No. 14183, 90 Fed. Reg. 8757 § 1 (Jan. 27, 2025).

The President, and later Secretary of Defense Pete

Hegseth (now redesignated as Secretary of War), also

declared that persons afflicted with gender dysphoria

are unfit for military service because, among other

things, the character of such persons (in the President’s

and Secretary’s words) is “inconsistent” with the “high

standards . . . [of ] honesty, humility, . . . and integrity.” DEP’T OF DEF., ADDITIONAL GUIDANCE ON PRIORITIZING MIL. EXCELLENCE AND READINESS (2025)

(hereinafter “Hegseth Policy”); see also J.A. 50.

In this litigation, the government has not attempted

to defend or provide any factual basis for these disparaging characterizations of American citizens. Indeed,

the government has not contested that the PlaintiffAppellees who are currently serving (and who have collectively earned more than 80 commendations) have

served honorably and pose no threat to national security, even though they happen to be transgender and

have suffered from gender dysphoria.

Instead, the government contends that this case is

solely about whether, pursuant to the Hegseth Policy,

the military can disqualify persons from military service

because they have gender dysphoria, a mental health

condition. But the record shows that the purpose of the

Hegseth Policy is to target applicants and servicemembers who express what the Administration believes is a

“false gender identity,” and the Policy goes far beyond

disqualifying persons currently or recently suffering

from gender dysphoria. Some of those disqualifications

are completely unexplained and have no reasonable justification. The sharp contrast to the Mattis Policy,

adopted in the first Trump Administration, which allowed servicemembers who were transgender or who

had suffered from gender dysphoria to remain in the

military, appears to be driven by the bare desire to harm

a politically unpopular group: persons who identify as

transgender. As such, at this preliminary stage, I conclude that the Hegseth Policy is both arbitrary and

based upon animus, and for those reasons the Policy violates Plaintiff-Appellees’ constitutional right to equal

protection of the law.

These Plaintiff-Appellees consist both of active-duty

service members and those desiring to enlist. Under the

Hegseth Policy, those Plaintiff-Appellees currently

serving in the military—who have been honorably

serving for many years—now face expulsion. In a similar vein, in accordance with the Hegseth Policy, those

Plaintiff-Appellees desiring to enlist and who have applied for admission to the military are now excluded

from accession. I conclude first that the equities are

much stronger in favor of the current servicemembers,

as compared to those Plaintiff-Appellees who seek admission, and second that the District Court must carefully consider the implications of compelling the Administration to admit persons to the military based upon a

preliminary ruling on the merits that could be revisited

and reversed after a full trial on the merits. As a result,

and for separate reasons, Judge Rogers and I vote to

affirm the District Court’s preliminary injunction enjoining the Hegseth Policy as it relates to those Plaintiff-

Appellees already in the military, while Judge Walker

and I vote to vacate the preliminary injunction as it relates to the Plaintiff-Appellees seeking accession into

the military.

I. Procedural History

After President Trump issued Executive Order

14183 (“EO 14183”) on January 27, 2025, entitled “Prioritizing Military Excellence and Readiness,” PlaintiffAppellees filed their initial complaint and moved for a

preliminary injunction. 1 Plaintiff-Appellees’ Motion for

Preliminary Injunction, Talbott v. United States, No.

1:25-cv-00240 (D.D.C. Feb. 2, 2025), Dkt. No. 13. Once

the government issued its implementing guidance—

otherwise known as the Hegseth Policy 2—on February

26, 2025, Plaintiff-Appellees filed their Third Amended

Complaint, as well as a Renewed Application for Preliminary Injunction. Amended Complaint (Third), Talbott,

No. 1:25-cv-00240, Dkt. No. 69; Plaintiffs’ Motion for

The Plaintiff-Appellees also sought a temporary restraining order (“TRO”). See Plaintiffs’ Motion for Temporary Restraining Order, Talbott, No. 1:25-cv-00240, Dkt. No. 14. The District Court

held a hearing on the motion for a TRO on February 4, 2025, and

ordered the parties to submit a joint status report to determine if

a TRO was still needed given the motion for a preliminary injunction. Id. Minute Order (Feb. 4, 2025). Ultimately, the District

Court granted the motion for a preliminary injunction and never

ruled on the motion for a TRO. Mem. Op. Granting Plaintiffs’ Renewed Application for Preliminary Injunction, Talbott, No. 1:25-cv00240, Dkt. No. 89.

The Department of Defense (“DoD”), later redesignated the

Department of War, implemented EO 14183 in a memorandum entitled “Additional Guidance on Prioritizing Military Excellence and

Readiness,” referred to in this opinion as the “Hegseth Policy.”

Talbott, No. 1:25-cv-00240, Dkt. 63-1; J.A. 48.

Preliminary Injunction (Renewed), Talbott, No. 1:25-cv00240, Dkt. No. 72. The Plaintiff-Appellees’ complaint

stated that the government violated the equal protection

component of the Fifth Amendment because the Hegseth

Policy is not based on any legitimate governmental purpose, instead “reflect[ing] animosity toward transgender

people because of their transgender status.” 3 Amended

Complaint (Third), Talbott, No. 1:25-cv-00240, Dkt. No.

69 at 6, 68-72. The District Court heard oral argument

on Plaintiff-Appellees’ preliminary injunction motion

over the course of three separate days, ultimately issuing the injunction on March 18, 2025. Talbott v. United

States, 775 F. Supp. 3d 283 (D.D.C. 2025).

In its memorandum opinion, the District Court made

a number of findings that are relevant to the proceedings before us. First and foremost among them—driving

its ultimate conclusion enjoining the Hegseth Policy—

was the District Court’s finding that the “Military Ban

[referring to both EO 14183 and the Hegseth Policy together] is soaked in animus and dripping with pretext.”

Talbott, 775 F. Supp. 3d at 326. Further, the District

Court found that the Hegseth Policy, which disqualifies

from service anyone with a history of gender dysphoria,

constitutes a ban on all transgender troops even though

it never utilizes the word “transgender.” Id. at 301. The

District Court ruled that the Policy’s purported exemption was “one in name only,” because “[v]irtually no one”

Some Plaintiff-Appellees also lodged violations of procedural

due process under the Fifth Amendment claims, as well as estoppel

claims. Talbott v. United States, 775 F. Supp. 3d 283, 289 (D.D.C.

2025). The District Court did not address either of these claims as

it found that Plaintiff-Appellees “established likelihood of success

on their equal protection claim,” id. at 289 n.12, and neither party

has resurrected these claims in this Court.

who was transgender could meet the criteria for exemption. Id. at 301-02. Underscoring this finding was the

District Court’s understanding that the Hegseth Policy,

which even disqualifies those who “exhibit symptoms

consistent with[] gender dysphoria,” was an “exclusion

. . . so broad as to capture persons who have never had

gender dysphoria[.]” Id. at 324 (emphasis in original).

Additional findings from the District Court included that

the Administration had “rushed” the Hegseth Policy when

it reversed an existing military policy without “comprehensive review,” id. at 302, and that the studies relied

upon by the government to justify the Hegseth Policy

did not support the government’s actions in disqualifying transgender personnel from serving. Id. at 303-308.

The District Court then turned to the preliminary injunction analysis, holding that Plaintiff-Appellees had a

likelihood of success on their equal protection claim, that

they would suffer irreparable harm absent injunction,

and that the balance of equities and public interest favor

Plaintiff-Appellees. Talbott, 775 F. Supp. 3d at 311-33.

In analyzing Plaintiff-Appellees’ equal protection claim,

the District Court applied intermediate scrutiny, as it

found that the Hegseth Policy discriminated on the basis of sex. Id. at 315-16. The District Court’s conclusion

ultimately relied on the Supreme Court’s decision in

Bostock v. Clayton County, 590 U.S. 644 (2020), which

held in the Title VII context that it was “impossible to

discriminate against a person for being homosexual or

transgender without discriminating against the individual based on sex.” Id. at 316 (citing Bostock, 590 U.S. at

660). Alternatively, the District Court also found that

intermediate scrutiny should apply because the Hegseth

Policy discriminated on the basis of transgender status,

and transgender persons are a quasi-suspect class. Id.

at 319-22. Under the more exacting standard, the District Court held that even with the heightened deference

that the judiciary provides to the military, the military’s

stated legitimate goals of military readiness, unit cohesion, good order, and discipline were not substantially

related to the means utilized to achieve those goals in

the Hegseth Policy. Id. at 322-26.

Even assuming that the Hegseth Policy discriminated on the basis of a medical condition, as the government contended throughout the course of the lowercourt proceedings, and even assuming that the more

deferential rational basis standard of review applied, the

District Court found that the Hegseth Policy still violated equal protection because it was an “unadulterated

expression of animus” and reflective of a “bare . . . desire to harm a politically unpopular group.” Id. at 327

(citing U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534

(1973)). To arrive at this conclusion, the District Court

relied upon the Hegseth Policy, as well as EO 14183, a

White House Fact Sheet that accompanied that Executive Order, Secretary Hegseth’s contemporaneous

tweet regarding the Policy, as well as other factors

demonstrating that the government “has targeted

transgender persons writ large.” Talbott, 775 F. Supp.

3d at 330 (citation modified).

Three days after the District Court issued its memorandum opinion, the government filed a motion to dissolve the preliminary injunction, highlighting DoD’s

newly issued March 21, 2025 guidance. Defendants’ Motion to Dissolve Preliminary Injunction, Talbott, No.

1:25-cv-00240, Dkt. No. 91 at 2 (citation modified). The

government explained that the phrase “exhibit symptoms consistent with gender dysphoria” refers only to

the “diagnostic criteria outlined in the Diagnostic and

Statistical Manual of Mental Disorders and applies only

to individuals who exhibit such symptoms as would be

sufficient to constitute a diagnosis[.]” Id. (quoting March

21, 2025 guidance) (internal quotations omitted). The

District Court held a hearing on the motion that same

day, and denied the motion on March 26, 2025, finding

that the government had “regurgitat[ed]” its arguments

from before, and that nothing relevant had changed that

prompted the need to dissolve the preliminary injunction. Talbott v. United States, 775 F. Supp. 3d 445, 447

(D.D.C. 2025). The District Court also denied the government’s request for a stay pending appeal but temporarily stayed its injunction until March 28. Id.

Appellants then filed an emergency appeal in this

Court for a stay of the preliminary injunction pending

appeal. We granted an administrative stay on March 27,

2025, heard oral argument on the stay pending appeal

the following month, and then subsequently granted

that stay in December. J.A. 1311; Talbott v. United States,

No. 25-5087, 2025 WL 3533344 (D.C. Cir. Dec. 9, 2025)

(Motions Panel) (Pillard J., dissenting) (per curiam).

We now have before us the appeal of the preliminary

injunction on the merits. For the reasons articulated

below and in the separate opinions, we affirm the preliminary injunction as it pertains to the Hegseth Policy

for current servicemembers, but we vacate the preliminary injunction with respect to the provisions of the

Hegseth Policy applicable to those persons seeking to

enlist in the military.

II. Factual Background

The government contends that this case is solely

about whether, pursuant to the Hegseth Policy, the mil-

itary can disqualify persons from military service because they have a mental health condition. As the government concedes in its opening brief, “[i]n general, the

military has aligned . . . disqualifying [mental health]

conditions with the ones listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM), published

by the American Psychiatric Association.” Appellants’

Br. at 5. However, the record shows that the purpose of

the Hegseth Policy is to target applicants and servicemembers who express what the Administration believes

is a “false gender identity,” see Exec. Order No. 14183,

90 Fed. Reg. 8757, and the Policy includes disqualifiers

that go far beyond persons currently or recently suffering from gender dysphoria. As such, the Hegseth Policy

implicates much more than just those mental health conditions appearing in the DSM.

A. Definitions

First, we should define terms. As stated in the 2018

report by then-Defense Secretary James Mattis in the

first Trump Administration, when using the term “sex”

or “biological sex,” we refer to “a person’s biological status as a male or female based on chromosomes, gonads,

hormones, and genitals (intersex is a rare exception).”

J.A. 78 n.10 (quoting AGNES GEREBEN SCHAEFER ET

AL., RAND NAT‘L DEF. RSCH. INST., Assessing the Implications of Allowing Transgender Personnel to Serve

Openly, 75 (RAND Corporation 2016), https://www.

rand.org/content/dam/rand/pubs/research reports/RR1

500/RR1530/RAND_RR1530.pdf (“RAND Study”)).

“Transgender” means an “individua[l] who ha[s] [a] sexual identity or gender expression that differs from their

assigned sex at birth.” Id. (quoting RAND Study at 75).

A subset of transgender persons often have a condition

10a

called gender dysphoria, which was defined in the fifth

edition of the DSM as a “marked incongruence between

one’s experienced/expressed gender and assigned gender” that “is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.” Id. (quoting AM. PSYCHIATRIC ASS ’N, Diagnostic and Statistical Manual of

Mental Disorders (DSM-5), 452-53 (5th ed. 2013)).

Some transgender persons, especially those diagnosed with gender dysphoria, choose to “transition” to

their preferred gender. Id. at 78-79. As explained in the

Mattis Report, transition can occur in various ways.

“Social transition” occurs when the person lives and

works in their preferred gender without hormone treatment or surgery. Id. at 93. “Medical transition” refers

to using cross-sex hormone therapy and hair removal to

align secondary sex characteristics, such as breast development, facial hair or voice depth, with the person’s

preferred gender. Id. “Surgical transition,” also called

sex reassignment surgery, involves surgery on the genitalia and reproductive organs to make them resemble

those of the preferred gender as closely as possible. Id.

Prior to 2016, the military barred persons diagnosed

with “transsexualism,” as defined in the third edition of

the DSM, or persons with “gender identity disorder,” as

defined in the fourth edition of the DSM. Id. at 78, 8182. “Transsexualism is a gender identity disorder, the

sufferers of which believe that they are ‘cruelly imprisoned within a body incompatible with their real gender

identity.’ ” Farmer v. Moritsugu, 163 F.3d 610, 611

(D.C. Cir. 1998) (quoting THE MERCK MANUAL OF MED.

INFO. 418 (1997)); see also Farmer v. Hawk-Sawyer, 69

F. Supp. 2d 120, 121 n.1 (D.D.C. 1999). (“Transsexual-

11a

ism is a condition that exists when a physiologically normal person is extremely uncomfortable and discontent

with his or her particular sex and prefers to be the other

sex.”). “Gender identity disorder is most simply described as an individual’s confusion or discomfort about

his or her sexual status as a biological male or female.”

Hawk-Sawyer, 69 F. Supp. 2d at 122. Prior to 2016, the

military “[a]lso disqualified . . . persons who had undergone genital surgery or who had a history of major

abnormalities or defects of the genitalia.” J.A. 78; see

also id. at 81-82. These two categories of disqualifiers,

based on medical diagnoses and medical treatment, had

the effect of “prevent[ing] transgender persons, especially those who had undergone a medical or surgical

gender transition, from accessing into the military, unless a waiver was granted.” Id. at 78.

As discussed in the Mattis Report, the psychiatric

community significantly modified the DSM when the

manual’s fifth edition was published in 2013:

[I]t changed “gender identity disorder” to “gender

dysphoria” and designated it as a “condition”—a new

diagnostic class applicable only to gender dysphoria

—rather than a “disorder.” This change was intended to reflect the [American Psychiatric Association’s] conclusion that gender nonconformity alone—

without accompanying distress or impairment of

functioning—was not a mental disorder.

Id. at 83 (emphasis added). As one of our sister Circuits

has explained, “[a]lthough the DSM once considered

‘transsexualism’ and ‘gender identity disorder’ mental

conditions, the modern edition of the DSM explains that

gender nonconformity is not in itself a mental disorder.”

Cath. Charities of Jackson, Lenawee, & Hillsdale Cntys.

12a

v. Whitmer, 162 F.4th 686, 698 (6th Cir. 2025) (Bloomekatz, J. dissenting in part, and dissenting in judgment).

B. Transgender Policy in the Obama Administration

In 2015, then-Secretary of Defense Ashton Carter initiated a working group to identify issues related to open

military service by transgender persons. As later described by Secretary Mattis, “[t]his reevaluation . . .

was prompted in part by amendments to the DSM that

appeared to change the diagnosis for gender identity

disorder from a disorder to a treatable condition called

gender dysphoria.” J.A. 83.

After a year of research, Secretary Carter’s working

group concluded that transgender persons should be allowed to serve openly in the military, as the working

group’s findings demonstrated that doing so would have

“minimal impact on unit cohesion,” a “negligible” impact

on unit readiness, and any health care costs would be an

“exceedingly small proportion” of military health care

expenditures. Id. at 570-71, 649; see also id. at 84-85.

The DoD then issued the Carter Policy, allowing transgender individuals already enlisted in the military to

serve openly starting in summer 2016. Id. at 83, 85. The

Carter Policy highlighted that for those individuals who

were diagnosed with gender dysphoria while in the military, they could begin a treatment plan that could result

in the member transitioning genders. Id. at 85-86. Such

treatment culminated in the member requesting a

change of gender marker on the Defense Enrollment Eligibility Reporting System (“DEERS”), with the servicemember beginning to serve in accordance with all

standards associated with the member’s transitioned

gender. Id. at 86.

13a

The Carter Policy also allowed the accession of transgender persons into the military starting in July 2017.

Id. at 86, 88. To the extent that any person seeking to

enlist had a history of gender dysphoria, such medical

condition was disqualifying, unless the applicant had

been stable (i.e., “without clinically significant distress

or impairment”) for 18 months. Id. at 86. With respect

to past medical treatment related to gender transition,

the Carter Policy disqualified persons from joining who

had a “history of medical treatment associated with gender transition,” unless (a) the applicant had completed

all medical treatment associated with gender transition,

(b) the applicant was stable in the preferred gender for

18 months, and (c) if the applicant was presently receiving cross-sex hormone therapy following the gender

transition, the individual had been stable on such hormones for 18 months. Id. Similarly, a “history of sex

reassignment or genital reconstruction surgery” was

disqualifying unless 18 months had passed since the

date of any such surgery, “no functional limitations or

complications” persisted, and no further surgery was required. Id. at 86-87. In other words, the Carter Policy

disqualified persons with past genital surgery or medical treatments related to gender transition while they

were still in the midst of medical or surgical transition

and not yet “stable” in their preferred gender. Once

such stability was demonstrated, the individual was free

to enlist and serve.

C. Transgender Policy from First Trump

Administration to the Biden Administration

Before the Carter accession policy could go into effect, however, the Administration changed, and the new

Secretary of Defense, James Mattis, deferred the July

14a

1, 2017 date to January 2018 so that the military could

review their accession plans. A few months after the

election, in August 2017, President Trump issued a

memo banning members of the military from serving in

a sex different from their sex assigned at birth (hereinafter “2017 Memo”). This ban was enjoined by several

courts—including the District Court for the District of

Columbia—and this Court declined to stay that injunction pending appeal. Doe 1 v. Trump, No. 17-5267, 2017

WL 6553389, at *1 (D.C. Cir. Dec. 22, 2017).

For the next several months following the 2017

Memo, Defense Secretary Mattis convened a panel of

military and medical experts, and he issued a new

transgender policy in early 2018. The Mattis Report,

which formed the basis for the Mattis Policy, began with

the “fundamental premise” that “any eligible individual

who can meet the high standards for military service

without special accommodations should be permitted to

serve. This is no less true for transgender persons than

for any other eligible individual.” J.A. 73. The Mattis

Report recognized that “transgender status alone is not

a [mental health] condition[,]” while “[g]ender dysphoria, by contrast, is a mental health condition that can require substantial medical treatment.” Id. at 91. Accordingly, the Mattis Policy expressed service qualifications

strictly in terms of gender dysphoria and associated

medical treatment, rather than on whether an applicant

or servicemember expressed a certain gender identity.

Further in accordance with the Report’s identified

“fundamental premise,” the Mattis Policy allowed transgender persons who had not transitioned to another

gender and who had no history of gender dysphoria to

join the military, so long as they were willing and able

15a

to meet the standards of their biological sex, a requirement for accession consistent with the Carter Policy. Id.

at 75. Transgender persons who required gender transition or who had undergone transition were disqualified

from joining the military. Id. at 103.4 Transgender persons with a history of gender dysphoria were disqualified from joining the military, unless the person could

“demonstrate 36 consecutive months of stability (i.e., absence of gender dysphoria) immediately preceding their

application[.]” Id. at 76. The Mattis Policy used the 36month stability period as the standard, rather than disqualifying persons with a history of gender dysphoria

altogether, because 36 months of stability “[wa]s the

same standard the Department . . . applie[d] to persons

with a history of depressive disorder.” Id. at 113. The

Mattis Policy also explained that “[g]iven the documented

fluctuations in gender identity among children, a history

of gender dysphoria should not alone disqualify an applicant seeking to access the Armed Forces.” Id.

Secretary Mattis handled a diagnosis of gender dysphoria differently for persons who were already serving

in the military. As the Mattis Policy explained:

Retention standards are typically less stringent than

accession standards due to training provided and onthe-job performance data. While accession standards endeavor to predict whether a given applicant

will require treatment, hospitalization, or eventual

separation from service for medical unfitness, and

thus tend to be more cautious, retention standards

focus squarely on whether the Service member, deThe provision did allow for “waivers or exceptions” where “otherwise authorized,” but did not further explain how such waivers

or exceptions could be obtained. J.A. 103.

16a

spite his or her condition, can continue to do the job.

This reflects the Department’s desire to retain, as far

as possible, the Service members in which it has

made substantial investments and to avoid the cost

of finding and training a replacement. To use an example outside of the mental health context, high

blood pressure does not meet accession standards,

even if it can be managed with medication, but it can

meet retention standards so long as it can be managed with medication.

Id. (emphasis added).

Accordingly, while a current diagnosis of gender dysphoria was disqualifying for accession, a person already

serving could be retained in the military without the need

for a waiver, so long as they were willing and able to

serve under the standards of their biological sex, did not

require gender transition, and were not non-deployable

for more than 12 months (or the applicable policy of

their Service branch). Id. To the extent a person with

a history of gender dysphoria sought a waiver from

these standards, the Mattis Policy provided that the

gender dysphoria standards “are subject to the same

procedures for waiver as any other [mental health]

standards.” Id.

Secretary Mattis also made a genuine effort to address the reliance interests of those servicemembers

who had, prior to the Mattis Policy, already been diagnosed with gender dysphoria and begun medical or surgical transition to their preferred gender. For those

servicemembers, the Mattis Policy recognized the “reasonable expectation of these Service members that the

Department would honor their service on the terms”

that existed under the Carter Policy, and it allowed

17a

them to continue to receive all medically necessary care,

change their gender marker in DEERS, and serve in

their preferred gender. Id. at 76-77, 114. Also grounding this policy was the Department’s “commitment to

these [s]ervice members, including the substantial investment it has made in them,” and the Department’s

judgment that those factors “outweigh[ed] the risks

identified in [its] report.” Id. at 114.5

When President Biden took office three years later,

he directed the Secretaries of Defense and Homeland

Security to ensure that all transgender individuals who

could meet military standards should be able to serve.

The Office of the Undersecretary of Defense for Personnel and Readiness created a working group, and based

on the group’s conclusions, Defense Secretary Lloyd Austin released revised accession and retention transgenderrelated guidelines. The Austin Policy, released in April

2021, allowed transgender personnel to openly serve

again, and it mirrored the Obama-era Carter Policy in

all material aspects. Talbott, 775 F. Supp. 3d at 295-96.

After the issuance of the Mattis Policy, the government moved

to dissolve the preliminary injunction that had been issued based

on the 2017 Memo. In Doe 2 v. Shanahan, this Court held that

there were substantial differences between the 2017 Memo and the

Mattis Policy, such that the preliminary injunction against the 2017

Memo should be dissolved. 755 F. App’x. 19 (D.C. Cir. 2019) (per

curiam). Doe 2 acknowledged that the government had “substantial arguments” that the Mattis Policy passed constitutional muster, but the Court did not resolve the merits of the equal protection

challenge. Id. at 25. The Mattis Policy thus went into effect after

the dissolution of the preliminary injunction.

18a

D. Transgender Policy Under the Second

Trump Administration

When President Trump returned to office in January

2025, military accession and retention policies changed

again. But instead of reverting back to the Mattis Policy

from his first term, President Trump went much further. On his first day in office, President Trump issued

an Executive Order denouncing transgender people and

the whole concept of transgender identity as inconsistent with “biological truth.” That framing formed the

basis of the new military policy that emerged just one

month later.

On Inauguration Day, President Trump issued Executive Order 14168 (“EO 14168”), which emphatically rejected the legitimacy of people who identify as transgender and withdrew federal recognition of transgender

people. 90 Fed. Reg. 8615 (Jan. 20, 2025). The President

decried “gender ideology,” which he defined as “replac[ing] the biological category of sex with an evershifting concept of self-assessed gender identity, permitting the false claim that males can identify as and

thus become women and vice versa . . . .” Id. at 8615

§ 2(f ). The President described transgender people as

employing “gender ideology extremism,” because they

are “ideologues who deny the biological reality of sex[.]”

Id. at 8615 § 1. The central tenet of EO 14168 was that

transgender people perpetrate a lie; indeed, part of the

title of the Executive Order was “Restoring Biological

Truth to the Federal Government.” Id.

Just one week later, President Trump demanded that

the military implement his vision of “biological truth.”

In EO 14183, issued January 27, 2025, the President

adopted the definitions of EO 14168 and complained that

19a

“the Armed Forces have been afflicted with radical gender ideology . . . .” 90 Fed. Reg. 8757 § 1. The President declared further that “expressing a false ‘gender

identity’ divergent from an individual’s sex cannot satisfy the rigorous standards necessary for military service.” 6 Id. (emphasis added). The President further

proclaimed that “adoption of a gender identity inconsistent with an individual’s sex” conflicts not only “with

a soldier’s commitment to an honorable, truthful, and

disciplined lifestyle,” but also with “the humility and

selflessness required of a service member.” Id. (emphasis added).

In sum, the Commander-in-Chief declared transgender people as categorically unfit for military service

explicitly because of their gender identity. To add insult, the President labeled transgender persons as dishonorable, undisciplined, arrogant, selfish liars. The

President directed the Secretary of Defense to issue

guidance implementing EO 14183 within 30 days. Id. at

8758 § 4(c)(i).

Less than two weeks later, Defense Secretary Pete

Hegseth reiterated the President’s view that “[e]xpressing a false ‘gender identity’ divergent from an individual’s sex cannot satisfy the rigorous standards necessary for Military Service.” PRIORITIZING MIL. EXCELOne could say that the Executive Order sought “to force conformity with sex” throughout the military. Compare United States

v. Skrmetti, 605 U.S. 495, 516 (2025) (rejecting the argument that

the Tennessee law banning certain medical and surgical treatments on gender dysphoric minors sought to “enforce[] a government preference that people conform to expectations about their

sex” because it did not employ “sex stereotyping,” such as requiring children to wear “sex-consistent clothing”).

20a

(Feb. 7, 2025), Talbott, No.

1:25-cv-00240, Dkt. 33-1, (“Feb. 7 Memo”). Thus, once

again, the purpose of the Policy was expressed in terms

of expelling from the military all transgender persons

(i.e., people who “express a false gender identity”). To

begin implementing this purpose, Secretary Hegseth

mandated that “all new accessions for individuals with a

history of gender dysphoria are paused, and all unscheduled, scheduled, or planned medical procedures associated with affirming or facilitating a gender transition for

Service members are paused.” Id.

LENCE AND READINESS

The extirpation from the military of all persons with

a “false gender identity” was Secretary Hegseth’s explicit goal. Targeting persons with a history of gender

dysphoria was merely the means of achieving that end.

On February 26, 2025, Secretary Hegseth issued the

Hegseth Policy, pursuant to EO 14183 and his February

7 Memo, stating that “the medical, surgical, and mental

health constraints on individuals who have a current diagnosis or history of, or exhibit symptoms consistent

with, gender dysphoria are incompatible with the high

mental and physical standards necessary for military

service.” J.A. 48. Under the terms of the Hegseth Policy, persons with a history of medical or surgical transition are disqualified from service. Id. at 53-54. Applicants and servicemembers are required to self-report

any past diagnosis of gender dysphoria or if they are experiencing symptoms “consistent with[] gender dysphoria,” the latter of which leads to a medical examination. 7

See id. at 1290; Id. at 1302-03. The Hegseth Policy declared that people with past or present gender dysphoThe Hegseth Policy was clarified by several guidance documents issued after February 26, 2025. See, e.g., J.A. 1289-91.

21a

ria do not meet the “high standards for Service member

readiness, lethality, cohesion, honesty, humility, uniformity, and integrity.” Id. at 50.

The Hegseth Policy’s perspective of gender dysphoria was completely different from that of the Mattis Policy during the first Trump Administration. Secretary

Mattis had explained that because the “vast majority” of

applicants aged 17 to 24 are ineligible to join the military

for one reason or another, a disqualification based on

gender dysphoria should not be seen as a stigma:

[N]othing in the policy should be viewed as reflecting

poorly on transgender persons who suffer from gender dysphoria, or have had a history of gender dysphoria, and are accordingly disqualified from service. . . .

Transgender persons with gender dysphoria are no

less valued members of our Nation than all other categories of persons who are disqualified from military

service.”

Id. at 77 (emphasis added). Secretary Hegseth, consistent with President Trump, proclaimed the opposite.

The Hegseth Policy continued the character attacks asserted in EO 14183, namely that persons afflicted with

gender dysphoria are unfit for military service because,

among other things, the character of such persons (in

the President’s and Secretary’s words) is “inconsistent”

with the “high standards . . . [of ] honesty, humility,

. . . and integrity.” See id. at 50.

Accordingly, the Hegseth Policy did not treat gender

dysphoria the same as all other mental health conditions, as the Mattis Policy had. While the Mattis Policy

evaluated the fitness of those servicemembers with gender dysphoria by placing them in the Disability Evaluation System for a case-by-case assessment (the same as

22a

any other medical condition), see id. at 453, the Hegseth

Policy mandated that all disqualified persons go through

the administrative separation process, which is generally used for personnel accused of misconduct. Id. at 5556; Id. at 1315; Id. at 1320; Id. at 543-44; see also Talbott,

775 F. Supp. 3d at 448. While the Mattis Policy disqualification for accession was based on a diagnosis of gender dysphoria within the past three years (the same as

other depressive disorders), the Hegseth Policy disqualified all persons with any history of gender dysphoria,

regardless of how long ago the person had been stable

and symptom-free—even if they were diagnosed as a

child. See J.A. 50; Id. at 203; Id. at 1092. And finally,

while the Mattis Policy allowed waiver of its disqualifications on a case-by-case basis, the Hegseth Policy precludes anyone—regardless of whether they are currently serving in the military or not—from obtaining a

waiver unless they can demonstrate that they have

never “attempted to transition,” see id. at 210, which appears to exclude anyone who has ever tried to socially

transition in their lifetime (such as a biological woman

wearing slacks and a tie). 8 Appellants have never artic“Attempt to transition” must include attempts to socially transition, otherwise the inclusion of the term would have no meaning

in the waiver provision. The Hegseth Policy already disqualifies

persons who have attempted medical or surgical transition, so including “attempt to transition” in the waiver policy has no effect

unless it means some other type of transition—i.e., social transition. At a hearing below, the District Court indicated that “attempt

to transition” appears to include social transition, such as a female

“wearing pants and slacks . . . . [w]ith a tie,” and thus invited Appellants to file a clarifying declaration or guidance document if the

term was not intended to be so broad. See Tr. of Mar. 12, 2025

hearing, Talbott, No. 1:25-cv-00240, Dkt. No. 90 at 168-171. Appellants responded by notifying the District Court that they declined

23a

ulated any basis, medical or otherwise, for such a broad

waiver disqualification based on past experience with

social transition.

The differences between the Mattis Policy and

Hegseth Policy abound, but the divergence is most stark

when considering how each Policy treated those diagnosed with gender dysphoria while serving. Unlike the

Mattis Policy, the Hegseth Policy makes no real accommodation of the reliance interests of persons with gender dysphoria or persons who had transitioned while

serving their country honorably and without incident.

The Mattis Policy allowed persons with gender dysphoria who had not begun transitioning to remain in the military, so long as they were willing and able to serve in

their biological sex. The Hegseth Policy categorically

disqualifies them. The Mattis Policy allowed servicemembers who had transitioned or were in the process of

transitioning to remain in the military. Again, the

Hegseth Policy categorically excludes them. In response to questions about why these servicemembers

were not “grandfathered” as in the Mattis Policy, the

Administration’s response in FAQs accompanying the

Hegseth Policy was that:

While these individuals have volunteered to serve our

country and will be treated with dignity and respect,

expressing a false ‘gender identity’ divergent from

an individual's sex cannot satisfy the rigorous standards necessary for military service.

J.A. 207 (emphasis added).

to file any further explanation. See Defendants’ Notice to Court

(Mar. 17, 2025), Talbott, No. 1:25-cv-00240, Dkt. No. 86 at 1.

24a

While the Hegseth Policy elsewhere cited costs and

readiness as reasons for not retaining servicemembers

with gender dysphoria, see id. at 65, that statement cannot explain all of the broad disqualifications, such as expelling someone because they had gender dysphoria as

a child or because the person once wore clothing or used

pronouns associated with a gender other than their biological sex. From all of the circumstances, including the

FAQ response, it is clear that the Hegseth Policy was

based, at least in part, on an intent to exclude persons

from the military due to their gender identity.

III. Analysis

Under the standard set forth in Winter v. Natural

Resources Defense Council, Inc., a plaintiff seeking a

preliminary injunction must establish: (1) that they are

likely to succeed on the merits; (2) that they are likely

to suffer irreparable harm in the absence of preliminary

relief; (3) that the balance of equities tips in their favor;

and (4) that an injunction is in the public interest. 555

U.S. 7, 20 (2008). This Court reviews the District

Court’s factual findings for clear error, see Serono

Lab’ys, Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C. Cir.

1998), “[its] legal conclusions de novo,” and “its weighing of the four relevant factors for abuse of discretion.”

In re Fed. Bureau of Prisons’ Execution Protocol Cases,

955 F.3d 106, 111-12 (D.C. Cir. 2020) (per curiam).

A. Likelihood of Success on the Merits

To determine whether the Plaintiff-Appellees have

demonstrated a likelihood of success on the merits of

their equal protection challenge (and assuming we will

not employ any form of heightened scrutiny), we must

analyze whether: (1) the government has set forth a legitimate state interest in distinguishing the military eli-

25a

gibility of persons excluded from military service pursuant to the Hegseth Policy from the eligibility of those

who do not face such exclusion, and (2) the Hegseth Policy is rationally related to a legitimate government interest. City of Cleburne, Tex. v. Cleburne Living Ctr.,

473 U.S. 432, 446 (1985). “A bare . . . desire to harm a

politically unpopular group” can never “constitute a legitimate governmental interest.” Moreno, 413 U.S. at

535; see also Cleburne, 473 U.S. at 447; Trump v. Hawaii, 585 U.S. 667, 705 (2018).

Given that this case concerns a policy decision by the

military, we will provide “great deference to the professional judgment of military authorities concerning the

relative importance of a particular military interest.”

Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (emphasis added). But that does not mean, as the Dissent

seems to suggest, see Dissenting Op. at 29-44, that when

an Article III court is tasked with determining the constitutionality of a military policy, our role is transformed

into that of a judicial rubber stamp. While “the tests and

limitations to be applied may differ because of the military context[,] [w]e of course do not abdicate our ultimate responsibility to decide the constitutional question

. . . .” Rostker v. Goldberg, 453 U.S. 57, 67 (1981). 9

See also Holder v. Humanitarian L. Project, 561 U.S. 1, 34

(2010) (“Our precedents, old and new, make clear that concerns of

national security and foreign relations do not warrant abdication of

the judicial role. . . . the Government’s authority and expertise in

these matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.”) (internal citations omitted); United States v. Robel, 389

U.S. 258, 264 (1967) (highlighting that even the invocation of “war

power” “does not remove constitutional limitations safeguarding

26a

In Goldman, the Court was called upon to determine

whether an Air Force regulation mandating uniform

dress violated the First Amendment because it precluded a Jewish officer from wearing a yarmulke while

in uniform. 475 U.S. at 504. While the Court gave great

deference to the military judgment about the “relative

importance” of the interest in uniform dress, the Court

also made clear that deference to this military interest

“d[id] not, of course, render entirely nugatory in the military context the guarantees of the First Amendment.”

475 U.S. at 507. Thus, the Court carefully reviewed the

specific requirements of the regulation and evaluated its

constitutionality using the test of whether the classification “reasonably and evenhandedly regulated” military

dress. Id. at 510 (“[W]e hold that those portions of the

regulations challenged here reasonably and evenhandedly regulate dress in the interest of the military's perceived need for uniformity.”).

Something akin to Goldman’s “reasonable and evenhanded” test from the First Amendment context has

been used to evaluate equal protection challenges to military policies. In Schlesinger v. Ballard, 419 U.S. 498

(1975), a male naval lieutenant who twice failed to be selected for promotion challenged a statute that mandated

his separation from the military after nine years of service, where the statute applicable to women who twice

failed to be promoted did not mandate their separation

until after thirteen years of service. The Court gave

great deference to the military’s interest in the “up or

out” policy, because “[i]n the absence of some mandatory attrition of naval officers, the result would be stagessential liberties”) (citing Home Bldg. & Loan Ass’n v. Blaisdell,

290 U.S. 398, 426 (1934)).

27a

nation of promotion of younger officers and disincentive

to naval service.” Id. at 502.

The Court was careful to note that the sex-based classification was not based on “archaic and overbroad generalizations” about the sexes, but rather on “the demonstrable fact that male and female line officers in the

Navy are not similarly situated with respect to opportunities for professional service.” Id. at 508. Because

women officers had restrictions on participation in combat and most sea duty (which were not challenged), the

Court concluded that “Congress may thus quite rationally have believed that women line officers had less opportunity for promotion than did their male counterparts, and that a longer period of tenure for women officers would, therefore, be consistent with the goal to

provide women officers with ‘fair and equitable career

advancement programs.’ ” Id. (quoting H.R. Rep. No.

216, 90th Cong., 1st Sess., 5). The Court thus upheld the

classification as “rational,” observing that “[t]he complete rationality of this legislative classification is underscored by the fact that in corps where male and female lieutenants are similarly situated, Congress has

not differentiated between them with respect to tenure.”

Id. at 508-09. In sum, like in Goldman, the Court concluded that the military classification was reasonable

and evenhanded.

Rostker followed a similar analytical path. There, the

Court considered a due process challenge (essentially

equivalent to an equal protection challenge) to a statute

that authorized the President to require the registration

of males for the draft, but not females. See 453 U.S. at

59. Once again, the Court gave great deference to Congress’s determination about the composition of the mili-

28a

tary, id. at 64-67, but the Court was careful to note that

“[n]one of this is to say that Congress is free to disregard the Constitution when it acts in the area of military

affairs.” Id. at 67. The Court observed that “[t]he reconciliation between the deference due Congress and our

own constitutional responsibility is perhaps best instanced in Schlesinger v. Ballard,” id. at 70, and the

Court evaluated the statute in a manner similar to the

analysis described above. The Court pointed out that

Congress had extensively studied and debated the issue

before enacting the classification, thus rejecting the

challengers’ assertion that Congress acted “unthinkingly” or “reflexively and not for any considered reason.” Id. at 72 (internal citations omitted). Because of

the extensive hearings and study, the Court reasoned

that the classification “was not 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)) (internal citations omitted).

The Court declined to specify whether it was applying heightened scrutiny due to the sex-based nature of

the classification or rational basis scrutiny due to deference owed Congressional judgments about the military,

because “[a]nnounced degrees of ‘deference’ to legislative judgments, just as levels of ‘scrutiny’ which this

Court announces that it applies to particular classifications made by a legislative body, may all too readily become facile abstractions used to justify a result.” Id. at

69-70. Instead, the Court focused on whether, when acting within its constitutional authority, Congress transgressed the guarantee of equal protection under the law.

Id. Based on the fact that women were precluded from

service in combat (a restriction that was not challenged),

id. at 76-77, and the “purpose of registration was to pre-

29a

pare for a draft of combat troops,” the Court held that

the sex-based classification was “sufficiently . . . related” to the Congressional purpose. Id. at 79. In doing

so, the Court observed that Congress is permitted to

prioritize military need over equity, but that nonetheless, similarly situated persons must be treated similarly and invidious discrimination will not be countenanced. Id. at 79-80.

These precedents demonstrate that the Court has

employed something akin to a “reasonable and evenhanded” test to review constitutional challenges to classifications made in military statutes and regulations. In

doing so, the Court considered military purposes and interests as presumptively legitimate and due great deference, but the Court nonetheless looked to whether the

classification was sufficiently related to that governmental purpose or interest. While gender-based classifications were not subjected to heightened scrutiny, the

Court did so only after concluding that (1) such classifications were based on detailed study rather than “archaic and overbroad generalizations,” (2) where possible, similarly situated persons were treated similarly,

and (3) the classification was not based on invidious discrimination. I will employ the same analysis here. 10

This is not, as the Dissent complains, “a new test.” Dissenting

Op. at 33 n.128. It is a description of the factors cited by the Court

when upholding military classifications, even though the classifications were based on sex. See Goldman, 475 U.S. at 510; Schlesinger, 419 U.S. at 508-09; Rostker, 453 U.S at 74, 79-80. It stands

to reason that we should examine whether those same factors are

present in this case, where a foundational premise of the Hegseth

Policy is a sex-based classification. See Feb. 7 Memo (“Expressing

a false ‘gender identity’ divergent from an individual’s sex cannot

satisfy the rigorous standards necessary for Military Service.”).

30a

I note also that both sides ask us to review the likelihood of success of the equal protection challenge mindful of United States v. Skrmetti, 605 U.S. 495 (2025),

which was decided after the District Court’s ruling.

Skrmetti considered a Tennessee law that banned doctors from performing certain medical treatments and

surgical procedures on minors as treatment for gender

dysphoria. Id. at 505-06. The Court held that a state

law prohibiting medical interventions to treat gender

dysphoria for minors did not classify based on sex or

transgender status. Instead, the Court held it was a

classification based on a medical condition, as the law

did not “prohibit conduct for one sex that it permits for

the other.” Id. at 510-12. The Court explained that the

law “d[id] not mask sex-based classifications,” because

these medical treatments were prohibited for both male

and female minors, and thus there was no sex discrimination. Id. at 513-17. The Court further held that the

law was not a classification based on transgender status

—a healthcare provider could not provide puberty

blockers or hormones to any minor suffering from gender dysphoria, whether the child was transgender or

not. Id. at 517-19.

As described below, the classifications in the Hegseth

Policy have many distinctions from the classifications in

Skrmetti.11 More to the point, the Hegseth Policy does

The Supreme Court stayed a nationwide preliminary injunction

entered in the Western District of Washington against the Hegseth

Policy in United States v. Shilling, 145 S. Ct. 2695 (2025), but the

Court’s reasoning was not explained and could have been based on

impropriety of the universal nature of the injunction. See Trump

v. CASA, Inc., 606 U.S. 831, 851-52 (2025). In our Court, a panel

stayed the present preliminary injunction. But because the stay

panel’s analysis was based on the understanding that “[o]n its face,

31a

not classify whether persons are eligible to serve in the

military in a reasonable and evenhanded manner. I focus specifically on three provisions of the Policy: (1) the

disqualification from service based on any history of

gender dysphoria, however remote, (2) the disqualification from eligibility for a waiver based on any past “attempt to transition,” and (3) the requirement that all

persons disqualified under the policy go through the administrative separation process, rather than the Disability Evaluation System. 12

1. The Hegseth Policy contains classifications that

are not sufficiently related to a legitimate government interest.

In Skrmetti, the Court observed that “if a law neither

burdens a fundamental right nor targets a suspect class,

the [Hegseth] [P]olicy applies only to individuals with gender dysphoria,” Talbott, 2025 WL 3533344, at *7, and as described above,

the policy actually disqualifies more persons than those with current or recent diagnoses of gender dysphoria, I find its reasoning

unpersuasive.

While the Mattis Policy included a severance clause with respect to its grandfathering provisions, see J.A. 114, the Hegseth

Policy contains no severance clause. Furthermore, Appellants did

not ask the District Court, and have not asked this Court, to excise

any portion(s) of the Hegseth Policy that it finds unlawful. I therefore conclude that the government “manifests an intent for the entire package to rise or fall together,” see Bd. of Cnty. Comm’rs of

Weld Cnty., Colo. v. Env’t Prot. Agency, 72 F.4th 284, 296 (D.C.

Cir. 2023), and I do not undertake any such severance analysis. See

Nat’l Treasury Emps. Union v. Chertoff, 452 F.3d 839 (D.C. Cir.

2006) (“[W]e are obliged to respect the fundamental principle that

agency policy is to be made, in the first instance, by the agency

itself . . . . Accordingly, courts generally do not attempt . . . to

fashion a valid regulation from the remnants of the old rule.”) (internal citations omitted).

32a

we will uphold the legislative classification so long as it

bears a rational relation to some legitimate end.” 605

U.S. at 510 (quoting Romer v. Evans, 517 U.S. 620, 631

(1996)). The Court upheld the Tennessee law because it

was rationally related to the state’s proclamation of a

“legitimate, substantial, and compelling interest in protecting minors from physical and emotional harm.” Id.

at 516-17 (quoting Tenn. Code. Ann. § 68-33-101(m)).

Here, Appellants have partly justified the Hegseth

Policy based on their interests in minimizing health care

costs associated with the treatment of gender dysphoria,

as well as lessening the risks to readiness and unit cohesion posed by persons with gender dysphoria or persons

who have transitioned to another gender. These are legitimate government interests, and they help to explain

certain parts of the Policy, like why surgical or hormonal

gender transition while serving in the military is prohibited. Yet none of them explain why all persons with a

history of gender dysphoria are disqualified, even if the

person has been asymptomatic for many years and even

if their only diagnosis was as a child. Persons who do

not currently suffer from gender dysphoria or with such

a remote history of the condition pose no costs or risks

to the military. Further, the Hegseth Policy did not

even attempt to explain why this broad classification

was necessary or appropriate, let alone why this classification is so much broader than the Mattis Policy (which

looked back three years).

Similarly, while the Hegseth Policy contains a waiver

for both retention and accession where “there is a compelling Government interest in accessing the applicant

that directly supports warfighting capabilities,” the

waiver is inapplicable to anyone who cannot demon-

33a

strate they have never “attempted to transition.” J.A.

53-55; Id. at 210. As discussed above, since persons who

have undertaken medical and surgical transition are disqualified by the Hegseth Policy, “attempt to transition”

must include attempts to socially transition. To construe the phrase otherwise would strip it of any operative force. The Hegseth Policy never explained why this

broad “attempt to transition” language appears in the

Policy. Nor does the Policy explain what legitimate government interest this classification furthers. And Appellants never explained this provision in the District

Court. In their briefing to this Court, Appellants refer

to “attempt to transition” as a “classification based on

medical interventions (i.e., cross-sex hormone therapy

and sex-reassignment surgery).” See Reply Br. at 8.

But that formulation conflicts with the plain text of the

Hegseth Policy, because it already disqualifies persons

who have attempted medical or surgical transition, so

including “attempt to transition” in the waiver policy has

no effect unless it means some other type of transition

—i.e., social transition. The government has not told us

what legitimate interest it has in preventing a woman

from joining (or remaining in) the military because she

used he/him or they/them pronouns at some point during her lifetime, and I cannot think of one.

Further to this point, to the extent that the Hegseth

Policy disqualified people who had a current diagnosis

of gender dysphoria, it justified the classification on the

basis that persons suffering from gender dysphoria do

not meet the “high standards for Service member readiness, lethality, cohesion, honesty, humility, uniformity,

and integrity.” J.A. 50. Requiring servicemembers to

meet those high standards is a legitimate government

interest, and the Hegseth Policy presented some evi-

34a

dence demonstrating why gender dysphoria was incompatible with readiness, lethality, cohesion and uniformity. But, Appellants conceded below that they had

presented no evidence to establish that persons with

gender dysphoria are not honest, humble, and full of integrity, see id. at 1212-1213; Id. at 1240; Id. at 1280, and

Appellants never contended, in the District Court or in

this Court, that this part of the justification for excluding persons with a history of gender dysphoria has any

sufficient relation to a legitimate government interest.

As discussed in Part II, the Hegseth Policy also justified its disqualifying classifications on the grounds

that persons “expressing a false ‘gender identity’ divergent from an individual’s sex cannot satisfy the rigorous

standards necessary for military service.” Id. at 207.

Again, setting rigorous standards for military service is

of course a legitimate government interest. Yet also

again, the Policy and guidance documents offer no explanation or evidentiary support for the statement that

transgender persons cannot meet those rigorous standards. The Hegseth Policy FAQs basically say that

whether transgender servicemembers can meet rigorous military standards at all is beside the point:

Q. The Secretary of Defense has said that the focus

needs to be on “lethality, meritocracy, accountability,

standards, and readiness.” Specifically focusing on

“meritocracy,” will consideration be given to high

performing transgender service members?

A. While these individuals have volunteered to serve

our country and will be treated with dignity and respect, expressing a false “gender identity” divergent

from an individual’s sex cannot satisfy the rigorous

standards necessary for military service.

35a

* * *

Q. Did the Department consider reinstating the

Mattis Policy regarding a Service member diagnosed

with gender dysphoria and allow them to be grandfathered?

A. While these individuals have volunteered to serve

our country and will be treated with dignity and respect, expressing a false “gender identity” divergent

from an individual’s sex cannot satisfy the rigorous

standards necessary for military service.

Id. at 206-07.

The government abandoned all pretext of trying to

craft sex-based classifications that were “sufficiently

. . . related,” see Rostker, 453 U.S. at 79, to the legitimate government interests in “lethality, meritocracy,

accountability, standards, and readiness.” Those interests were dismissed as irrelevant—having the correct

gender identity is all that matters. The contrast with

the Mattis Policy alone shows that the Hegseth Policy is

far from the “reasonable and evenhanded” approach upheld in Goldman. See 475 U.S. at 510.

When asked by the District Court for evidence that

persons with a “false gender identity” cannot satisfy rigorous military standards, Appellants offered none. See

Tr. of Mar. 12, 2025 hearing, Talbott, No. 1:25-cv-00240,

Dkt. 90 at 182-83. Indeed, in the proceeding below, Appellants did not contest that all of the currently-serving

Plaintiff-Appellees, who have served for a combined 130

years and collectively earned more than 80 commendations, have “served honorably” and “satisfied the rigorous standards” demanded of them. See Talbott, 775

F. Supp. 3d at 292, 298. In our Court, Appellants have

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made no attempt to explain how the classification—

expelling persons who express a “false gender identity”

—connects with the government interest in rigorous

standards for military service. Rather, Appellants’ strategy seems to be one of willful ignorance, treating this

statement as if it was not repeatedly made in the Executive Order and policy documents, and to instead deflect

by contending that this case is only about gender dysphoria and medical treatments, the same as in Skrmetti.

But that is clearly not so.

2. The Hegseth Policy and the Executive Order it is

based upon are grounded, at least in part, on archaic and overbroad generalizations about sex,

rather than solely on a diagnosis of gender dysphoria or medical treatment related to that condition.

In Skrmetti, the Court concluded that the Tennessee

law was “simply a prohibition on the prescription of puberty blockers and hormones to treat gender dysphoria,” and that “[a] law prohibiting the administration of

specific drugs for particular medical uses” does not warrant heightened scrutiny. 605 U.S. at 515-16. The Court

strongly implied that a law that seeks to “force conformity with sex” or “evinc[ing] sex-based stereotyping”

would be considered a classification based on sex. Id.;

see also Bostock v. Clayton Cnty., Ga., 590 U.S. 644 (2020).

The Mattis Report began with the “fundamental

premise” that “any eligible individual who can meet the

high standards for military service without special accommodations should be permitted to serve. This is no

less true for transgender persons than for any other eligible individual.” J.A. 73. The Hegseth Policy was

mandated by an Executive Order which declared that

37a

“expressing a false ‘gender identity’ divergent from an

individual’s sex cannot satisfy the rigorous standards

necessary for military service.” 90 Fed. Reg. 8615, 8615

§ 1 (emphasis added). Thus, while the Mattis Policy was

not premised on a belief that transgender persons are

unfit for the military, the Hegseth Policy is undergirded

by the opposite belief. The Hegseth Policy clearly seeks

to disqualify persons who do not act in conformity with

their sex and who do not adhere to sex-based stereotypes. As discussed above, Secretary Hegseth reiterated those statements in his February 7 Memo, and in

the FAQs accompanying the Hegseth Policy. Accordingly, unlike in Skrmetti, the challenged policy here is

based, at least in part, on sex.

Further, as described below, Appellants have proffered no argument regarding how basing a policy on disfavoring persons with a “false gender identity” constitutes a legitimate government interest. Nor have Appellants demonstrated that there is any factual basis for

the statement that persons with a “false gender identity” cannot meet the rigorous standards of military service. Thus, the Hegseth Policy justifies its classifications, at least in part, on factually unsupported (and undefended) archaic and overbroad generalizations about

sex, in direct contradiction to the circumstances surrounding the sex-based classifications in Schlesinger v.

Ballard. Indeed, the Hegseth Policy is a prototypical

example of a sex-based classification created “reflexively and not for any considered reason,” in direct contrast to the Congressional action that the Court upheld

in Rostker. See 453 U.S at 72.

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3. The Hegseth Policy does not treat, where possible, similarly situated persons in a similar fashion. To the extent that gender dysphoria truly

forms the basis for some disqualification criteria,

gender dysphoria is treated differently than any

other medical condition in the military.

In Skrmetti, the Court upheld Tennessee’s ban on

certain treatments for gender dysphoric minors because

there were “plausible reasons” for the government to

take the action, given the ongoing debate among medical

experts regarding the risks and benefits of medical and

surgical transition treatments for minors. See 605 U.S.

at 522-23 (quoting FCC v. Beach Commc’ns, Inc., 508 U.S.

307, 313 (1993)). In other words, the classification was

consistent with ordinary uses of age-based and medicalbased standards.

As explained above, the Mattis Policy treated gender

dysphoria as an “analog . . . to any other mental condition listed in DoDI 6130.03.” J.A. 113. In other words,

under the Mattis Policy, persons with gender dysphoria

were treated as similarly situated with persons with

other mental health disorders, such as depressive disorder. Id.

Here, the Hegseth Policy did not treat persons with

gender dysphoria as similarly situated to persons with

other mental health conditions. While the Mattis Policy

disqualification for accession was based on a diagnosis

of gender dysphoria within the past three years (the

same as other depressive disorders), the Hegseth Policy

disqualifies all persons with any history of gender dysphoria, regardless of how long ago the person has been

stable—even if they were diagnosed only once long ago

as a child. See id. at 50; Id. at 203; Id. at 1092.

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Further, while the Mattis Policy evaluated the fitness

of those servicemembers with gender dysphoria by placing them in the Disability Evaluation System for a caseby-case assessment (the same as any other medical condition), see id. at 85; Id. at 453, the Hegseth Policy mandates that all disqualified persons go through the administrative separation process, which is generally used for

personnel accused of misconduct. Id. at 53-54; Id. at

1297; Id. at 1315; Id. at 1320. Indeed, former Assistant

Secretary of the Air Force Alex Wagner testified without contradiction that administrative separation is generally used for misconduct such as drug abuse or repeated failure to meet standards, while the Disability

Evaluation System is ordinarily used for evaluating impacts from medical conditions. Id. at 543-44. And former Deputy Assistant Secretary of the Air Force Martha Soper similarly stated in an uncontested declaration

that the Hegseth Policy departs from the military’s

standard practice: “In the typical circumstance, when a

service member presents with a medical condition, they

go through the Medical Evaluation Board (MEB) process at the wing level. From there, they would be referred to the Disability Evaluation System (DES), which

allows the military to consider how a person’s medical

condition impacts their service and potential deployability.” Id. at 756.

Thus, servicemembers with every other medical condition receive an individualized review of their circumstances to determine if they can continue to serve—

except if they have gender dysphoria. 13 As the Mattis

Report explained, even prior to the time when transSee Talbott, 2025 WL 3533344, at *3-4; see also J.A. 853-923

(outlining the procedures of the Disability Evaluation System).

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gender persons could first serve openly in the military,

“transgender persons were not usually processed for administrative separation on account of gender dysphoria

or gender identity itself, but rather on account of medical comorbidities (e.g., depression or suicidal ideation)

or misconduct due to cross dressing and related behavior.” Id. at 82. Plaintiff-Appellees pointed out this abnormal treatment of gender dysphoria in their brief, see

Appellees’ Br. at 25, and Appellants made no response

in reply.

Appellants have therefore conceded that persons

with a history of gender dysphoria are not treated the

same as similarly situated individuals.

4. The Hegseth Policy contains classifications that

are based on invidious discrimination.

In Skrmetti, the challengers did not argue that the

Tennessee law was based on animus. See 605 U.S. at

516. In contrast, Plaintiff-Appellees make such an argument here, and the District Court agreed with them,

finding that the Hegseth Policy is “soaked in animus”

and that it “stigmatizes transgender persons as inherently unfit.” Talbott, 775 F. Supp. 3d at 326. The District Court’s animus finding is well supported by the two

Executive Orders, the February 7 Memo, the Hegseth

Policy, and the FAQs, all of which contain numerous

statements demeaning transgender people as lacking

honesty, integrity, and humility because of their gender

identity.14

The Supreme Court hinted in Trump v. Hawaii that inquiries

into government action, especially in spaces where national security is implicated, might mandate only viewing whether the “policy

is facially legitimate,” without reviewing any “extrinsic evidence.”

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Appellants do not meaningfully contest the animus

finding; they instead ignore the Administration’s repeated statements in their briefing. As deflection, Appellants repeatedly emphasize that the Hegseth Policy

classifies on the basis of a medical condition, and that

the Policy is premised on legitimate purposes including

reducing medical and readiness risks and costs associated with that condition, to proclaim that the Hegseth

Policy “belies any suggestion that it is motivated by animus.” See Appellants’ Br. at 51. But Appellants cannot

just ignore the disparaging statements repeatedly made

by the decisionmakers. See Vill. of Arlington Heights v.

Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 268 (1977)

(“Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available” including “contemporary

statements by members of the decisionmaking body”).

Furthermore, as described above, some aspects of the

Hegseth Policy disqualify persons who have no current

or recent diagnosis of gender dysphoria, so those classifications cannot be justified by concerns about costs,

medical and readiness risks, and high standards. In addition, some classifications, like excluding persons from

obtaining a waiver because of past experience with social

transitioning, have not been explained at all. Nor did

Secretary Hegseth explain the reason for processing all

Hawaii, 585 U.S. at 704-05. I need not address the propriety of

reviewing extrinsic evidence here, where the two Executive Orders

and the February 7 Memo are cited and incorporated into the

Hegseth Policy, see J.A. 48-50, and the FAQs are “Approved Questions and Answers for Media and Congressional Requests” about

the Hegseth Policy, see id. at 201.

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disqualifications through the administrative separation

process rather than the Disability Evaluation System.

What has been clearly and repeatedly explained are

the foundational premises of the Hegseth Policy: persons with a “false gender identity” are unfit for the military, and persons with a history of gender dysphoria

are also unfit because they lack “honesty, humility, . . .

and integrity.” See Feb. 7 Memo; J.A. 50. As described

above, those animus-filled reasons were expressly given

to justify aspects of the Hegseth Policy. See J.A. 20607. As a result, this is not a case where we are left to

speculate why the government drafted such broad, undifferentiated classifications. Unless we are going to fall

for the old Groucho Marx line—“who are you going to

believe, me or your lying eyes?”—we have direct evidence in this case that animus motivated the classifications in the Hegseth Policy.

But even if this were the run-of-the-mill case where

the classifications are merely unexplained and we were

left with only circumstantial evidence of animus, the

Hegseth Policy contains classifications that are “ ‘divorced from any factual context from which we c[an] discern a relationship to legitimate state interests[,]’ and

‘[their] sheer breadth [is] so discontinuous with the reasons offered for [them]’ that the [classifications] see[m]

‘inexplicable by anything but animus.’ ” See Hawaii, 585

U.S. at 706 (quoting Romer v. Evans, 517 U.S. 620, 632,

635 (1996)). These unexplained and unreasoned departures from standard protocols are the kind of “unusual

deviation” that provide “strong evidence of a law having

the purpose and effect of disapproval of a class” of individuals. See United States v. Windsor, 570 U.S. 744, 746

(2013).

43a

All of these things, when taken together, demonstrate that the government’s stated reason for issuing

the Hegseth Policy as based solely upon gender dysphoria was pretextual, and that instead, the Hegseth Policy

was premised, at least in part, on a non-legitimate state

interest to harm the politically unpopular group of

transgender persons. See Kelo v. City of New London,

Conn., 545 U.S. 469, 491 (2005) (Kennedy J., concurring)

(“[A] court applying rational-basis review under the

Equal Protection Clause must strike down a government classification that is clearly intended to injure a

particular class of private parties, with only incidental

or pretextual public justifications.”).

For these reasons, I reject the Dissent’s conclusion

that the Hegseth Policy is not at all based upon animus

or that we should endeavor to imagine legitimate justifications for the problematic classifications. See Dissenting Op. at 39-44. The government is not allowed to

fabricate a legitimate justification for a classification

post hoc, when it has already articulated an impermissible justification ex ante. Nor is our dissenting colleague.

The “any conceivable reason” doctrine came about

because neither Congress nor the President is required

to give a reason for every classification at the time they

make it. See Heller v. Doe by Doe, 509 U.S. 312 (1993)

(“[A] classification ‘must be upheld against equal protection challenge if there is any reasonably conceivable

state of facts that could provide a rational basis for the

classification.’ ”) (quoting Beach Commc’ns, 508 U.S. at

313). Rational basis doctrine requires us to presume

that a classification is based on any plausibly legitimate

justification we can imagine when no justification was

expressly stated contemporaneously; that follows from

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the presumption that when the legislature (or the President) did not give a reason for the classification at the

time that they made it, they are presumed to have acted

for any plausible constitutional reason. Id.

But the doctrine has never allowed the Court to stick

its head in the sand, like the proverbial ostrich, and ignore the justification that was expressly articulated at

the time the decision was made. Indeed, the law, like

common sense, requires the Court to evaluate the validity of the justification that was proclaimed at the time

the classification was made. See Minnesota v. Clover

Leaf Creamery Co., 449 U.S. 456, 463, n.7 (1981) (“In

equal protection analysis, this Court will assume that

the objectives articulated by the legislature are actual

purposes of the statute, unless an examination of the circumstances forces us to conclude that they ‘could not

have been a goal of the legislation.’ ”) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 648, n.16 (1975)). As

such, “th[e] Court’s review does require that a purpose

may conceivably or ‘may reasonably have been the purpose and policy’ of the relevant governmental decisionmaker.” Nordlinger v. Hahn, 505 U.S. 1, 15-16 (1992)

(emphasis added) (quoting Allied Stores of Ohio, Inc. v.

Bowers, 358 U.S. 522, 528-29 (1959)).

It is neither conceivable nor reasonable to conclude

that the President acted for reasons other than those he

expressly gave in the Executive Order, nor is it conceivable or reasonable to conclude that the Secretary acted

for reasons other than the ones he expressly gave when

promulgating the Hegseth Policy. See Allied Stores of

Ohio, 358 U.S. at 530 (in explaining the holding of Wheeling Steel Corp. v. Glander, 337 U.S. 562 (1949), the Court

observed that “[h]aving themselves specifically declared

45a

their purpose, the Ohio statutes left no room to conceive

of any other purpose for their existence”); see also

Nordlinger, 505 U.S. at 16, n.7 (“After the Court in

Wheeling Steel determined that the statutory scheme’s

stated purpose was not legitimate, the other purposes

did not need to be considered[.]”). If we are at the point

where invidious reasons that were expressly given for a

classification can be completely ignored and replaced

with our imagined non-invidious reasons, then equal

protection jurisprudence has truly become bankrupt.

* * *

In sum, applying Skrmetti and the military precedents described above, Plaintiff-Appellees demonstrated

a likelihood of success on the merits that the Hegseth

Policy violates the Equal Protection Clause.

B. Irreparable Harm

To demonstrate irreparable harm, the movant must

show that the harm is “certain and great,” “actual and

not theoretical,” and that it is “beyond remediation” by

compensatory or other relief at the conclusion of litigation. Chaplaincy of Full Gospel Churches v. England,

454 F.3d 290, 297 (D.C. Cir. 2006). Accordingly, “loss of

earnings or damage to reputation” cannot afford a basis

for finding irreparable harm. Sampson v. Murray, 415

U.S. 61, 89-90 (1974). That being said, the “loss of constitutional freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Mills v.

District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir.

2009) (citation modified).

Here, Plaintiff-Appellees contend that they have

been irreparably harmed because the Hegseth Policy

deprives them of “constitutional freedoms,” namely the

46a

loss of their right to equal protection of the law under

the Due Process Clause. Appellees’ Br. at 60. Since

Plaintiff-Appellees have demonstrated a likelihood of

success on the merits—i.e., that the Hegseth Policy violates the equal protection guaranteed to them by the

Fifth Amendment—then it follows that they have been

irreparably harmed. As we said in Singh v. Berger, where

we held that the Marine Corps’ refusal to allow plaintiffs

to adhere to certain grooming standards in accordance

with their religion was a violation of the Religious Freedom Restoration Act, the “indignity of being unable to

serve for reasons that . . . bear no relationship to their

ability to perform” constitutes irreparable harm. 56 F.4th

88, 110 (D.C. Cir. 2022) (citation modified); see also 11A

WRIGHT & MILLER, FED. PRAC. & PROC. § 2948.1 (3d ed.

2021) (“[W]hen there is an alleged deprivation of a constitutional right . . . many courts find that no further

showing of irreparable injury is necessary.”).

C. Balance of Equities and the Public Interest

I now turn to the balance of equities and public interest, which merge when the government is the opposing

party. See Karem v. Trump, 960 F.3d 656, 668 (D.C. Cir.

2020). Even when a plaintiff can show irreparable harm,

she is not entitled to a preliminary injunction as a matter of right. See Winter, 555 U.S. at 24. We “must balance the competing claims of injury and . . . consider

the effect on each party of the granting or withholding

of the requested relief.” Id. (quoting Amoco Prod. Co.

v. Vill. of Gambell, Alaska, 480 U.S. 531, 542 (1987)). We

review the District Court’s weighing of these factors for

abuse of discretion. Winter, 555 U.S. at 32.

47a

1. Retention Policy

I begin by reviewing the District Court’s weighing of

these factors in granting the preliminary injunction of

the Hegseth Policy as applied to current servicemembers.

Appellants argue that any irreparable harm demonstrated by the Plaintiff-Appellees is outweighed by the

harm to the government. They state that the Austin

Policy, the predecessor to the Hegseth Policy, and which

allowed transgender people and persons with a recent

diagnosis of gender dysphoria to serve in the military,

“poses substantial risks to an effective national defense,” which they classify as “specific predictive judgments by senior military officials” that must be afforded

great deference. Appellants’ Br. at 53-54 (internal citations omitted).

But, as the District Court found, there was little “specific predictive judgment[] by senior military officials”

involved in the formulation and issuance of the Hegseth

Policy. See Talbott, 775 F. Supp. 3d at 333 (finding that

Appellants had provided “no testimony” from military

officers as to the burden a preliminary injunction would

place on the government). Indeed, the Mattis Policy—

adopted in the first Trump Administration—concluded

that the benefits of retaining servicemembers who were

transgender or who had suffered from gender dysphoria

outweighed any risks they posed to the military. See

J.A. 114. Moreover, the government put forward no evidence that the Austin Policy posed a substantial risk to

national security, and the Plaintiff-Appellees proffered

affidavits and declarations all pointing to the contrary.

A reversal to the status quo that has been held for four

years cannot possibly be deemed a major threat to national security when no such national security threats

48a

were raised in years prior. Cf. Ziglar v. Abbasi, 582 U.S.

120, 143 (2017) (“[N]ational-security concerns must not

become a talisman used to ward off inconvenient claims

—a label used to cover a multitude of sins.”) (internal

citations omitted).

Specifically, Appellants have not shown how a preliminary injunction preventing them from removing current servicemembers will harm national security. As

shown above, Appellants have not contested that all of

the currently serving Plaintiff-Appellees, who dedicated

a combined 130 years to military service and collectively

earned more than 80 commendations, have served honorably and met all military standards during their service. Appellants have thus forfeited any argument that,

for purposes of the balance of equities analysis, retaining these servicemembers will harm national security.

In sum, the balance of equities, as well as the public

interest, tips in favor of the Plaintiff-Appellees who are

currently serving.

2. Accession Policy

However, the calculus is different for those PlaintiffAppellees who seek to join the military. While PlaintiffAppellees who seek admission to the military have been

deprived of constitutional freedoms, the harms and equities of their situations are not identical to those of persons already serving. Plaintiff-Appellees seeking admission to the military can still obtain full relief later,

following a final adjudication on the merits. For those

servicemembers facing expulsion, it is not clear how easily they can be reinstated and made whole. But even if

they can be reinstated after being separated, it appears

to us to be a much greater hardship to end a military

career than to delay the start of one.

49a

Moreover, those Plaintiff-Appellees who have been

serving for years have demonstrated that their presence

in the military is not harming national security, but we

can only make a predictive judgment in that regard for

the Plaintiff-Appellees seeking admission. The point

about relative risk to national security is particularly

relevant because the effect of the preliminary injunction

is to revert to the Austin Policy, which allows accession

of persons with a history of gender dysphoria so long as

they have 18 months of stability. As described above,

the Mattis Policy required 36 months of stability for accession because that is the same stability standard for

depressive disorder. The shorter stability standard potentially poses increased risk of return of the illness,

whereas, the risks are less unknown for persons already

serving and being evaluated by their superiors and military doctors. This was a relevant consideration for the

District Court in determining whether to stay its hand

in imposing a preliminary injunction that would revert

to the Austin Policy accession standards. See Weinberger

v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (“Where

plaintiff and defendant present competing claims of injury, the traditional function of equity has been to arrive

at a ‘nice adjustment and reconciliation’ between the

competing claims[.]”) (quoting Hecht Co. v. Bowles, 321

U.S. 321, 329 (1944)).

Additionally, we must also consider that this is only a

preliminary determination of the merits. It is still possible that following complete factual development and

briefing, Appellants could prevail on the merits. If that

were to happen, and in the meantime new servicemembers were admitted who would have been excluded under the Hegseth Policy, that would have caused Appellants to admit persons they were actually legally entitled

50a

to exclude—a distinct harm. This is against the public

interest. See Yakus v. United States, 321 U.S. 414, 440-41

(1944) (“[W]here an injunction is asked which will adversely affect a public interest for whose impairment,

even temporarily, an injunction bond cannot compensate,

the court may in the public interest withhold relief until

a final determination of the rights of the parties, though

the postponement may be burdensome to the plaintiff.”).

Given these differences, the District Court was obligated to consider separately the balance of equities and

public interest for those who were already serving in the

military as compared to those who are seeking to enlist.

Rather, it analyzed—and balanced—both sets of injuries,

equities and interests as one. See Talbott, 775 F. Supp.

3d at 333. In doing so, the District Court abused its discretion. See Kickapoo Tribe of Indians of Kickapoo Rsrv.

in Kansas v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995)

(District Court abuses its discretion when it “failed to

consider a relevant factor”); NextEra Energy Glob. Holdings B.V. v. Kingdom of Spain, 112 F.4th 1088, 1108-11

(D.C. Cir. 2024) (holding that the District Court had

abused its discretion in granting a preliminary injunction when it “overlooked” relevant factors in its analysis).

Accordingly, I conclude that the District Court abused

its discretion in failing to consider relevant issues when

balancing the preliminary injunction factors with respect to the accession standards of the Hegseth Policy.

As a result, and for our separate reasons, Judge Rogers

and I vote to affirm the preliminary injunction with respect to the retention standards of the Hegseth Policy,

while Judge Walker and I vote to vacate the preliminary

injunction as to those Plaintiff-Appellees seeking admission to the military. Further, we hold that the District

51a

Court’s universal injunction should be narrowed to the

named Plaintiff-Appellees who are currently serving in

the military. See Trump v. CASA, Inc., 606 U.S. 831,

851-52 (2025).

IV.

For the reasons expressed above and in the separate

opinions, we affirm in part, and vacate in part, the District Court’s preliminary injunction, and we remand for

proceedings consistent with this opinion.

52a

ROGERS , Senior Circuit Judge, concurring in part

and dissenting in part: On January 27, 2025, President

Trump issued Executive Order 14183 that stated:

It is the policy of the United States Government to

establish high standards for troop readiness, lethality, cohesion, honesty, humility, uniformity, and integrity. This policy is inconsistent with the medical,

surgical, and mental health constraints on individuals

with gender dysphoria. This policy is also inconsistent

with shifting pronoun usage or use of pronouns that

inaccurately reflect an individual’s sex.

90 Fed. Reg. 8757. The Secretary of Defense was to implement this policy. Id. at 8757-58. As relevant, the

Hegseth Policy disqualifies from military service all current servicemembers “who have a current diagnosis or

history of, or exhibit symptoms consistent with, gender

dysphoria” and “who have a history of cross-sex hormone therapy or a history of sex reassignment or genital

reconstruction surgery as treatment for gender dysphoria or in pursuit of a sex transition.” Dep’t of Defense,

Additional Guidance on Prioritizing Military Excellence

and Readiness, at 6 (Feb. 26, 2025) (“the Hegseth Policy”). In addition to this retention policy, the same group

of people are barred from accession by appointment, enlistment, or induction into the military. Id. at 4. Various

waivers are provided under the Hegseth Policy, but they

are exceedingly restrictive. See Wilkins Op. at 22-23, 32.

On appeal by the government, Judge Wilkins concludes that the district court properly enjoined the

Hegseth Policy on retention and abused its discretion on

accession upon weighing the equities under the preliminary injunction factors. See Wilkins Op. at 4. For the

following reasons, I would affirm the order enjoining the

53a

policy on retention and accession, as applied to the

named plaintiffs. Therefore, I concur in part, and I respectfully dissent in part on accession, see Wilkins Op.

Part III.C.2.

A threshold question of law is what level of scrutiny

applies in evaluating the plaintiffs-appellees’ likelihood

of success on the merits of their equal protection claim.

In challenging the district court’s order enjoining the

Hegseth Policy, the government contends that the Policy is subject only to rational basis review because of the

high level of deference due to military judgments by the

courts. See Appellants Br. at 22-27 (citing e.g., Rostker

v. Goldberg, 453 U.S. 57 (1981), and Goldman v. Weinberger, 475 U.S. 503 (1986)). Additionally, the government contends that rational basis review applies independently of military deference because the Hegseth

Policy “draws lines based on a medical condition (gender

dysphoria)” rather than “identity or status.” Id. at 26.

It compares the Policy to a state law restricting certain

medical interventions for minors that the Supreme Court

upheld under rational basis review in United States v.

Skrmetti, 605 U.S. 495 (2025). Further, the government

contends that under rational basis review the Hegseth

Policy must be upheld even if it was based in part on animus “so long as it can reasonably be understood to result from a justification independent of unconstitutional

grounds.” Appellants Br. at 52 (quoting Trump v. Hawaii,

585 U.S. 667, 705 (2018)).

These contentions warrant examination. It is undisputed that “courts must give great deference to the professional judgment of military authorities concerning

the relative importance of a particular military inter-

54a

est.” Goldman, 475 U.S. at 503; see Rostker, 453 U.S. at

64-65. But in neither Goldman nor Rostker did the Supreme Court hold that rational basis review automatically applies where the military is involved. To the contrary, in Rostker, the Court rejected the government’s

argument to that effect. 453 U.S. at 69-70. Although the

Court deferred to Congress’ determination that only

men needed to register for the draft—observing that the

issue had been “extensively considered” in “hearings,

floor debate, and in committee” including “extensive testimony and evidence,” id. at 72—the Court explained

that it did “not think that the substantive guarantee of

due process or certainty in the law will be advanced by

any further ‘refinement’ in the applicable tests as suggested by the Government,” id. at 69-70. While focusing

on whether Congress violated equal protection, the Court

indicated that it would apply intermediate scrutiny as

established in Craig v. Boren, 429 U.S. 190 (1976). See

id. at 70.

Nor does the Supreme Court’s recent decision in

Skrmetti necessarily require the Hegseth Policy be assessed under rational basis review. There, the Court upheld state restrictions on the use of certain medical

treatments for gender dysphoria in minors. 605 U.S. at

511. It concluded that the restrictions were classified

based on age and medical conditions rather than on a

person’s sex or transgender identity. Id. at 511-18. Notably, in so doing, the Court contrasted regulation of “a

class of treatments or conditions” with regulation of “a

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