As previously reported, in March 2025 the federal district court for the District of Columbia issued a preliminary injunction barring the military from implementing Executive Orders and military memoranda that exclude transgender persons from serving in the military. Now in Talbott v. United States, (DC Cir., June 1, 2026), the D.C. Circuit Court of Appeals upheld the preliminary injunction insofar as it applies to named plaintiffs who are already serving in the military but vacated the preliminary injunction insofar as it applies to the named plaintiffs seeking to enlist. This result came in a fragmented vote of the 3-judge panel which generated three separate opinions spanning a total of 107 pages.
Judge Wilkins concluded that all the plaintiffs are likely to succeed on the merits of their equal protection challenge and that those already serving in the military are entitled to a preliminary injunction. However, he held that the case should be remanded to the district court for it to consider whether the balance of equities that justify a preliminary injunction are different for those who are merely seeking to enlist.
Discussing the merits, Judge Wilkins concluded that the current policy on transgender service contains classifications that are not sufficiently related to a legitimate government interest; the policy is grounded on archaic and overbroad generalizations about sex, rather than on a diagnosis of gender dysphoria or medical treatment for the condition; gender dysphoria is treated differently than any other medical condition; and the policy contains classifications that are based on invidious discrimination. He concluded in part:
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.”... [T]hose animus-filled reasons were expressly given to justify aspects of the Hegseth Policy.... 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.
Senior Circuit Judge Rogers filed an opinion concurring in part and dissenting in part. He would affirm the district court's preliminary injunction in full, saying in part:
Given the uncontested record evidence and the nature of this court’s review for abuse of discretion, the district court did not abuse its discretion in enjoining the Hegseth Policy on accession. This is so even if based on the evidence and argument before it, the district court could have concluded that the retention policy imposes “a much greater hardship” on those currently in the military than those who seek to join it, as Judge Wilkins concludes,... and only enjoined the Hegseth Policy on retention due to national security concerns. But the existence of a permissible alternative is not the same as showing that the district court abused its discretion by choosing another permissible alternative....
Judge Walker filed a dissenting opinion. He would reverse in full the district court's grant of a preliminary injunction. He said in part:
Sometimes a case will present an open question informed only by confusing and contradictory precedents. This is not one of those cases. Rather, ... an unbroken line of unambiguous authorities directs us to uphold a military policy (1) when it does not conflict with a statutory command, (2) when it reflects a “professional military judgment[],” and (3) when it addresses a perceived, military-wide need regarding the “composition, training, equipping, [or] control” of the armed forces.
The policy challenged today meets those criteria.
ABC News reports on the decision.
