A three-judge panel of the U.S. Ninth Circuit Court of Appeals heard the case Monday morning in a Portland, Oregon, courtroom. Schilling vs. Trumpa challenge to President Donald Trump’s reinstated ban on transgender Americans serving in the military. The debate was constitutional, clinical, and deeply human, revisiting a decade-long legal and cultural battle over who is deemed fit to serve the country.
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The Pentagon policy in question, announced in February, prohibits anyone diagnosed with gender dysphoria from joining or continuing military service. The government calls this the Medical Readiness Regulation. The plaintiffs, seven active-duty military members and the Seattle-based Gender Justice League, claim this is an unconstitutional and hostile act.
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Representing the government, Deputy Attorney General Abhishek Kambli, a member of the conservative Federalist Society, told the court that the policy is not a “blanket exclusion” but a “neutral medical standard.” “The question this court must answer is whether plaintiffs have shown that the military’s policy of presumptive disenfranchisement of people with gender dysphoria is constitutionally prohibited,” he said.
Judge Morgan Christen appointed by former president barack obamachallenged the government’s characterization. “It’s much broader than a diagnosis,” she said, noting that the policy applies to anyone who has received or is about to receive gender-affirming care. Kambli responded that “some individuals who identify as transgender but do not suffer from the clinical distress or impairment associated with gender dysphoria” can still serve. Those who qualify for military exemption must have never done anything to recognize their gender identity.
Judge Andrew Hurwitz, also an Obama appointee, questioned whether the Pentagon could really distance itself from President Trump’s public directives and accompanying rhetoric. “Do you believe that the policy that the Secretary of Defense has promulgated is narrower in scope than the policy that the President directed him to promulgate?” Hurwitz asked Secretary of Defense Pete Hegseth, referring to Trump’s executive order directing Secretary of Defense Pete Hegseth to “restore integrity” to the military by excluding transgender service members.
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in him January orders“Adopting a gender identity that is inconsistent with an individual’s gender is inconsistent with a soldier’s commitment to an honorable, honest, and disciplined lifestyle, even in his private life. A man’s claim to be a woman and his demand that others respect this falsehood is inconsistent with the humility and selflessness required of a military member,” Trump wrote.
Hurwitz told Justice Department prosecutors that Trump and Hegseth have “repeatedly made public comments expressing disdain” toward transgender people in uniform, comments that could suggest impermissible motives. “Wouldn’t the history of that statement be important in assessing whether this was an act of professional judgment or an act of bias?” Hurwitz asked.
“The executive order is irrelevant,” Kambli said flatly. “We’re just focused on policy.”
Conflict over constitutional review
Sasha Butchart, Senior Advisor lambda legalrepresenting the plaintiffs, whose combined military experience spans decades and across all branches of military service. She told the court that the policy “targets transgender people, not medical conditions.” She said each of her clients “have served with distinction and are facing termination not because of their performance, but because the president has labeled transgender people inherently unfit.”
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Butchart is represented by Emily Schilling, a decorated U.S. naval officer and lead plaintiff in the case. Schilling, who has served for more than a decade, was one of the first active-duty military members to come out as transgender after the Obama administration lifted the original ban in 2016. She has been sent overseas numerous times and has received awards for her leadership and accomplishments. Schilling said in a statement to the court that the new ban “stripped me of my dignity and ability to serve my country as my authentic self,” and argued that her background “proves that being transgender is not a barrier to military readiness.”
When Hurwitz asked whether the plaintiffs’ challenge was too broad, Butchert replied, “Every transgender person in the military is affected and harmed by this policy.” He said existing neutral standards ensure responsiveness “without excluding people from all walks of life.”
Statement from the Advocate
In a statement released after oral arguments, Lambda Legal and the Human Rights Campaign Foundation asked the Ninth Circuit to uphold a lower court’s injunction blocking what they called the “so-called ‘Hegseth Policy,'” which would ban all transgender people from military service and mandate the discharge of thousands of service members.
“Today, we asked the Ninth Circuit to uphold the district court’s correctly granted preliminary injunction against transgender service members who strengthen our nation’s military,” Buchart said. stated in a statement. “This discriminatory ban remains in effect, and eligible patriots are under daily threat of being kicked out of the military simply because of who they are. There is overwhelming evidence that this policy is driven by hostility rather than military necessity; there is no credible evidence that transgender service members impair military readiness, unit cohesion, or effectiveness.”
Kelly Robinson, Chairman human rights campaign The foundation added that the policies are “cruel, unpatriotic, and undermine the integrity and quality of our military. This is hostility, plain and simple, and we look forward to the Ninth Circuit agreeing that these blatantly discriminatory policies have no place in our military.”
What the court must decide
Much of the hearing focused on what standards of review, known as levels of scrutiny, should be applied.
Under a rational basis review, the government must only show that its policy: reasonably related It is for a legitimate purpose, a test that generally recognizes broad respect for military decision-making. In contrast, intermediate scrutiny requires governments to demonstrate that their policies will benefit society. important There is a purpose and the means chosen substantially related To achieve that. The Ninth Circuit has previously applied that higher standard to cases involving discrimination against transgender people, reasoning that such distinctions are inherently gender-based.
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Judge Consuelo Callahan, appointed by former President George W. Bush, noted: United States Supreme Court It does not explicitly recognize transgender people as a protected class, and uncertainty remains about what standards will govern them. “We really don’t know what the Supreme Court is going to do,” she said, referring to pending appeals from other circuit courts involving gender-affirming care and military service.
Kambli argued that both standards would survive because the policy is based on “professional judgment regarding readiness, unit cohesion and discipline.” Kristen didn’t seem convinced. “As of the previous policy, the record only contained predictive evidence,” she said, adding that she had many years of public service under the former president. joe biden “Data has been produced to show that people are serving openly… without incident.”
Butchart countered that the Pentagon “deviated from its normal issuance process” and relied on “outdated research from Mattis-era policies.” The Mattis Policy was created by then-Secretary of Defense James Mattis during the first Trump administration, and banned transgender people from serving in the military while allowing those already serving to continue in the military. The policy did not consider how transgender people affect the military.
Butchart said the Trump administration did not base the ban on actual research on serving transgender people. “There are hundreds, if not thousands, of transgender service members,” she said. “We have all kinds of data at our fingertips.”
wider impact
Twenty states, including Oregon, Washington, California, and New York, filed amicus briefs siding with the plaintiffs, arguing that the ban harms national security by excluding eligible individuals for reasons unrelated to their merits. Constitutional Responsibility Center submitted another brief He likens the policy to previous exclusions of women and gay Americans from the military.
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Kristen developed a hypothesis and tested the government’s reasoning. “Why couldn’t the military suddenly say now, ‘We were wrong, we don’t have women in the military?'” Kambli acknowledged that “there would be serious concerns” there, but insisted that gender dysphoria was a “medical condition” and not an identity category.
What happens next?
The Ninth Circuit will rule: Schilling vs. Trump In the coming months. If the court upholds a preliminary injunction issued by U.S. District Judge Benjamin Settle in Seattle, the ban will remain blocked nationwide. Otherwise, the law will remain in effect while the case heads to the Supreme Court, which is currently deeply divided over the meaning of equal protection.
Source: Advocate.com – www.advocate.com
