What was supposed to be a punctual appellate hearing Thursday in Washington, D.C., instead turned into a fierce pursuit of the Trump administration’s transgender military service ban for nearly three hours, as judges across ideological lines pressed government lawyers with pointed questions, voiced skepticism about the policy’s mechanics and repeatedly focused on whether the ban was intended to predetermine the discharge of transgender soldiers who have already served honorably.
In the oral argument of Talbot vs. Americaa panel of the U.S. Court of Appeals for the District of Columbia Circuit deeply committed to, but often appeared unconvinced by, the government’s argument that the ban is a neutral health policy entitled to full military respect. Rather, the justices repeatedly questioned whether the policy waiver and separation process had any meaning at all, or whether it was merely a procedure to mask a foreseen outcome. The hearing did not address the ultimate legality of the ban itself. Instead, the justices were considering whether to uphold a district court’s preliminary injunction, a preliminary order blocking enforcement of the policy pending full litigation.
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The purpose of the hearing was important to Nicholas Talbot, the lead plaintiff in the case. Talbot traveled from Ohio to Washington, D.C., to sit in court and listen to judges argue whether people like him should be allowed to keep their jobs.
“I feel like cautiously optimistic is becoming my catchphrase,” Talbot said. defender after that. “I recently joked to a friend that I kind of need an action figure at this point, and that’s what I said when I pulled the string.”
The three justices included Judith Ann Wilson Rogers, who was appointed by President Bill Clinton. Robert L. Wilkins, appointed by President Barack Obama. Justin R. Walker, appointed by President Donald Trump. The judge’s questions repeatedly focused on the same concerns.
“Everyone could be fired today or tomorrow.”
From the beginning, Rogers based his arguments on direct results rather than abstractions. She interjected after a government lawyer stressed that no one had yet been released under the policy.
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“Let me be clear: Although the government says no one has been released, my reading of the policy is that there is absolutely nothing that would prevent the government from releasing all of the plaintiffs tomorrow,” Rogers said.
This observation framed much of the hearing. Rogers emphasized that all of the named plaintiffs are currently serving time in prison and would likely be disqualified under the policy. When the government pointed to administrative separation boards and exemption procedures, she questioned whether those mechanisms could make any difference.
“So it’s a pointless process,” Rogers said. “We’re just moving paper around. There’s no chance that one of the plaintiffs will be able to continue the case.”
Abuse of discretion is not a blank check
Mr. Rogers also took issue with the government’s argument that Washington, D.C. District Court Judge Ana Reyes abused the court’s discretion by blocking the ban last year. When government counsel leaned heavily on the U.S. Supreme Court’s unexplained hold allowing the policy to proceed, she pointed to the lack of evidence.
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“Yeah, okay. Well, I don’t know exactly why,” she said.
Mr. Rogers suggested that without clear guidance from Congress or a reasoned Supreme Court opinion, appellate judges cannot simply ignore the district court’s findings of fact and balance of damages in the name of respect.
Career damage, dignity, and the meaning of “honorable discharge”
Rogers was openly skeptical of the government’s argument that military personnel receive honorable discharges and that their discharges do not cause irreparable harm.
“When you lose your job and you’re told you’re a terrible person, and you’re told there’s no way you can honorably serve your country, that’s something else entirely,” she said.
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These concerns reflected Talbot’s account of life under the policy. “I’m already seeing people, myself included, have their careers put on hold in this remote area,” he said. Defender.
Wilkins: Where’s the justification?
Mr Wilkins highlighted the government’s failure to explain why it abandoned a previous policy that had allowed transgender troops to remain on the basis of dependency interests.
“I found the only explanation…in just one paragraph,” he said, asking whether there were other valid explanations in the record.
“You have people who have been working there for years, earning Bronze Stars and other recognitions and doing a great job, and yet you adopt a policy of revoking trust exceptions… without even considering the data on how it worked,” Wilkins added.
Walker explores inevitability and choice
Mr Walker, the committee’s only Conservative appointee, repeatedly pressed the government on whether gender dysphoria would be specifically targeted.
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“Aside from the waiver process, both situations postpone the conclusion,” he said.
The government struggled to identify other conditions that could trigger automatic separation without an individual medical evaluation.
Plaintiffs explain ongoing damage
Another plaintiff, Gordon Herrero, spoke in an interview about specific harms he has already experienced. defender After the public hearing.
“I was selected to advance to the majors,” Herrero said. “But shortly after that…my scroll is withheld and my sequence number is released, I will no longer be promoted along with my colleagues.”
The third plaintiff, Jamie Hash, an active-duty Air Force master sergeant with more than 14 years of service, said the hearing highlighted substantial evidence already available that transgender service members strengthen the force.
“We have nearly a decade of evidence of improved readiness and force cohesion,” she said. “It’s hard to have policies specifically targeted at us as a group of people that don’t feel personal.”
Lawyer: “This is not normal.”
Shannon Minter, chief attorney at the National LGBTQ+ Rights Center, said the justices’ questions highlighted how far the policy departs from both military practice and constitutional norms and why courts should resist the temptation to treat it as routine.
“This is a very shocking policy,” Minter said. defender After the public hearing. “One of the biggest challenges for all of us is to resist the urge to normalize just because we’ve been living with this situation for a while. This is a complete departure from precedent. This is not normal. This is not the military way.”
Mr Minter said he was encouraged by the committee’s apparent unwillingness to gloss over the mechanics of policy or accept the government’s features at face value. Instead, he said, the justices repeatedly pursued how the ban actually worked and became visibly frustrated when government lawyers’ explanations were off or inaccurate.
“I felt like they really listened to me,” he said. “They were digging into the details, and to be honest, it felt like they were frustrated that the government was saying things that were confusing, unclear and, in some cases, just inaccurate.”
That dissatisfaction was no coincidence, he says. It came down to what Minter described as the policy’s central danger: that it seeks to reframe categorical exclusion as normal medical judgment, even though the military has never treated other military groups in the same way.
Jennifer Levi, co-counsel at GLAD Law, said the government’s difficulty in answering basic questions about comparators only further emphasizes that point.
“After the next few days of discussions, months of press conferences, and hours of discussion today, they haven’t identified a single medical condition that this applies to,” Levi said, referring to the automatic placement of transgender service members into administrative segregation without an individual medical review.
Levi said confusion during the debate, including the government’s efforts to conflate different review systems before withdrawing claims, exposed what she called the core design of the policy.
“At the end of the day, they can’t really challenge what is clear on the face of the policy and how it is implemented,” she said. “It’s aimed at removing transgender service members from the military. They may try to make it sound complicated or technical, but it’s actually very simple.”
Levi also rejected the government’s argument that the harm to the plaintiffs was minimal or speculative, noting that the judge’s questions track closely with what service members are already experiencing.
“These are people who have dedicated decades of their lives to their country,” she said. “Even though the government agrees they did nothing wrong, they are being removed from their jobs, placed on administrative leave, denied promotions, and forced into separation proceedings based on malpractice claims. This is devastating, and it’s happening now.”
The panel gave no indication of when it would rule.
“I’m always nervous about the unknown,” Talbot says. “It’s very difficult to predict how this will play out.”
Source: Advocate.com – www.advocate.com
