Trump's Transgender Military Ban and Its Constitutionality

The controversy over whether transgender service members can serve in the military goes back to President Donald Trump’s first term in office. According to American Oversight, Trump announced a transgender military ban saying on Twitter “after consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow…” [1] Then, one month later, President Donald Trump made the policy official in an official guidance to the Secretary of Defense and the Secretary of Homeland Security.[2] However, as Lawfare notes, while this was a major policy change from the Obama administration’s June 2016 policy that allowed transgender individuals to serve in the military, there are 2 key distinctions that indicate a softer policy than the one President Trump originally announced. The following is noted, “First, the ban portion of the memo addresses only “accession,” or initial enlistment, of openly transgender persons. … Second, President Trump explicitly left open the possibility the new policy might be temporary: The ban will remain in place “until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above.” [3] In spite of potential exemptions to Trump’s ban on transgender individuals serving in the military, challengers such as the ACLU, LGBTQ Legal Advocates and Defenders (GLAD) and the National Center for Lesbian Rights (NCLR) quickly sued the federal government, challenging Trump’s directive. 

Following about a year of battles in court, the Supreme Court, according to an update from the ACLU, decided to lift injunctions against Trump’s transgender military ban. [4] For the rest of Trump’s first administration, litigation on this issue continued throughout the court system. However, in November 2020, Trump was defeated for reelection by Democratic presidential nominee Joe Biden. Following Biden's taking office in January 2021, he promptly rescinded Trump’s directive banning transgender individuals from serving in the military. 

A few years later, in the 2024 presidential election, Donald Trump defeated Vice President Kamala Harris after President Joe Biden dropped out of the 2024 presidential race in the aftermath of the June 27, 202,4, presidential debate. 

With Donald Trump returning to the White House in January of 2025, there was wide anticipation that he would reinstate the policy prohibiting transgender Americans from serving in the United States military. Within a week of taking office for his second non-consecutive term, he did just that. On January 27, 2025, Trump issued an executive order entitled “Prioritizing Military Excellence and Readiness.” [5] This order reinstated the policy in place during Trump’s first term in office but went much further. In fact, according to NBC News, “the new policy prohibits trans people from enlisting and requires the military to identify all trans service members who have 'a current diagnosis or history of, or exhibit symptoms consistent with, gender dysphoria.”[6]

Due to the enormous implications that this policy would have on transgender service members, the Human Rights Campaign sued to block the new policy.[7] Promptly, the case was assigned to a D.C. district judge named Ana Reyes. Following hearings on the request for an injunction on February 18-19 and March 13th, where the administration made clear that the policy was a total ban on transgender individuals in the military, Judge Reyes agreed to halt enforcement of the Trump administration policy nationwide. She noted “that thousands of transgender service members have sacrificed, risking their lives to ensure for others the very equal protection rights the Military Ban seeks to deny them.” [8] Beyond the concern about equal protection, Judge Reyes also noted the following: “In the self-evident truth that ‘all people are created equal,’ all means all. Nothing more. And certainly nothing less … The judge also drew attention to the ban’s language, calling it “unabashedly demeaning” and that the resulting policy “stigmatizes transgender persons as inherently unfit, and its conclusions bear no relation to fact. Reyes also wrote that there’s no evidence that Trump or Hegseth consulted with military leaders before issuing its order or its policy.” [9] Given these factors, the Trump administration requested that the court order blocking the ban on transgender individuals in the U.S. military be lifted following the release of guidance listing how the policy will be enforced. 

However, Judge Reyes denied the motion to rescind her order blocking the policy on March 26, 2025. [10]Furthermore, the latest court ruling came from another lawsuit from two transgender service members from New Jersey who were petitioning the court to keep them together and not have them separated due to Trump’s trans military ban. Subsequently, following a hearing in the federal district court in New Jersey, a federal judge named Christine O’Hearn granted a temporary restraining order to the two service members.[11] Additionally, the judge’s ruling said that “they had shown they were likely to win their argument that Trump’s policy violates their civil rights, particularly the Equal Protection Clause of the Fifth Amendment. Ireland and Bear would also suffer irreparable harm if they were expelled from the military” after years of unblemished and decorated service … for no reason other than one’s gender identity.” [12] Beyond that, Judge Christine O’Hearn agreed with many of the points that Judge Reyes raised in her ruling denying the Trump administration’s request to allow the ban to go into effect. 

Ultimately, given the Trump administration’s lack of success in persuading the judiciary to allow this policy to go into effect, this issue is once again bound for the Supreme Court. While it remains to be seen how they ultimately rule when they hear the case in full and whether the Trump administration will abide by the ruling, the justices have indicated through a previous procedural opinion back in 2019 that they are inclined to allow the policy to go into effect.

Sources:

1. American Oversight, The Trump Administration’s Transgender Military Ban, (January 25,2021) https://americanoversight.org/investigation/trump-administrations-transgender-military-ban/
2. The White House, Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security, pgs. 1-3, (August,25,2017) , (on file in the Federal Register) 
3. Russell Spivak, From Tweet to Text: Trump Moves Forward on Military Transgender Ban, Lawfare, (August 28,2017, 6:16 PM), https://www.lawfaremedia.org/article/tweet-text-trump-moves-forward-military-transgender-ban
4. Joshua Block, Chase Strangio, and James Esseks, Breaking Down Trump’s Trans Military Ban, {pgs. 1-3}  (March 2018, Updated January 22,2019) https://www.aclu.org/news/lgbtq-rights/breaking-down-trumps-trans-military-ban
5. Executive Order No. 14183, Prioritizing Military Excellence and Readiness, {pgs. 1-4} The White House (January 27,2025) https://www.whitehouse.gov/presidential-actions/2025/01/prioritizing-military-excellence-and-readiness/
6. Jo Yurcaba and Chloe Atkins, Judge Blocks Trump’s Transgender Military Ban, (March 19,2025) https://www.nbcnews.com/nbc-out/out-politics-and-policy/another-federal-judge-blocks-trump-policy-banning-transgender-troops-m-rcna198553
7. Aryn Fields, Human Rights Campaign Foundation & Lambda Legal File Lawsuit to Block Trump Administration’s Transgender Military Service Ban, (February 6,2025) https://www.hrc.org/press-releases/human-rights-campaign-foundation-lambda-legal-file-lawsuit-to-block-trump-administrations-transgender-military-service-ban
8. GLAD Law, Talbott v. Trump, {pgs. 1-3} (January 28,2025)https://www.glad.org/cases/talbott-v-trump/
9.  Joshua Barajas, While Trump’s Trans Military Ban is Challenged in Court, Long-Serving Troops Prepare for What’s Next, (March 21,2025)https://www.pbs.org/newshour/politics/while-trumps-trans-military-ban-is-challenged-in-court-long-serving-troops-prepare-for-whats-next
10. Greg Wehner, Jake Gibson, Federal Judge Denies Trump Admin’s Effort to Ban Transgender People from Military, (March 26,2025, Updated March 27,2025) https://www.foxnews.com/politics/federal-judge-denies-trump-admins-effort-ban-transgender-people-from-military
11. Jim Walsh, Trump’s Transgender Military Ban Blasted by Camden Judge’s Ruling: ‘Profound Disruption.’, (March 24,2025) https://www.courierpostonline.com/story/news/local/south-jersey/2025/03/24/logan-ireland-nicholas-bear-bade-trump-transgender-military-ban-christine-ohearn-camden-judge-nj/82638712007/
12.  Jim Walsh, Trump’s Transgender Military Ban Blasted by Camden Judge’s Ruling: ‘Profound Disruption.’, (March 24,2025) https://www.courierpostonline.com/story/news/local/south-jersey/2025/03/24/logan-ireland-nicholas-bear-bade-trump-transgender-military-ban-christine-ohearn-camden-judge-nj/82638712007/