This story originally appeared on The Advocate.
The Trump administration asked the U.S. Supreme Court on Friday to clear the way for the Pentagon to fire decorated transgender troops who have so far beaten the government in court. The Department of Justice is asking the high court to intervene before a judge can hold a trial on whether the ban forcing them out is constitutional.
In a Friday petition, the administration called the D.C. Circuit’s ruling in the Talbott litigation “gravely erroneous.” It argues that Pentagon chief Pete Hegseth’s policy regulates gender dysphoria and related medical treatment, not transgender people, and therefore needs only a rational connection to military readiness to survive constitutional review.
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That description has failed to persuade two courts. In June, a divided D.C. Circuit panel preserved an injunction protecting the currently serving plaintiffs from discharge. Judges Robert Wilkins and Judith Rogers concluded that the plaintiffs were likely to win because the policy appeared rooted in hostility rather than military necessity. Wilkins wrote that it appeared driven by a “bare desire to harm” transgender people.
U.S. District Judge Ana Reyes earlier called the ban “soaked in animus and dripping with pretext” and “a solution in search of a problem.” Reyes has since certified a class of transgender service members and prospective troops. A two-week trial is scheduled to begin on January 4.
The Supreme Court has brushed against transgender military bans before, but it has never decided whether one is constitutional after a full trial. After Trump announced in 2017 that transgender people would no longer be allowed to serve “in any capacity,” then-Defense Secretary Jim Mattis replaced that declaration with a more detailed policy in 2018. The Mattis policy generally disqualified people with gender dysphoria who had transitioned or sought to transition, but it allowed some troops who began transitioning under the previous policy to remain. Transgender people without gender dysphoria could serve only under standards associated with their sex assigned at birth.
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Federal judges blocked the Mattis policy in several lawsuits, including Karnoski and Stockman. In 2019, the Supreme Court issued 5-4 emergency orders allowing it to take effect while those cases moved through appeals. The court did not explain its reasoning or rule that the policy was constitutional. President Joe Biden rescinded it in 2021 and restored open service.
Hegseth’s 2025 policy goes further. It eliminated the Mattis policy’s protections for some already-serving troops and created a waiver so narrow that lower courts have described it as effectively meaningless. In May 2025, six justices temporarily allowed the policy to remain in effect while Shilling, a separate challenge, continued in Washington state. That unsigned order likewise decided only what could happen during litigation — not whether the ban was lawful. The new Talbott petition asks the court to answer that constitutional question before the scheduled trial.
The Advocate has reported that the Pentagon is already using closed-door separation boards to remove transgender troops whose records show years of exemplary service. The National Center for LGBTQ Rights and GLAD Law represent the plaintiffs.
“The Trump administration wants the Supreme Court to rush in and bless the expulsion of proven, decorated soldiers before a single court has issued a final judgment,” NCLR legal director Shannon Minter said in a statement to The Advocate. “There is no circuit split, no emergency, and no merit—only a policy that multiple courts have now found was driven by prejudice rather than military need. The Trump administration is needlessly attempting to ram through policies that will cause irreparable harm to servicemembers and their families. The court should deny this request.”
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GLAD Law senior director of transgender and queer rights Jennifer Levi said the government had already acknowledged that the plaintiffs meet military requirements.
“We are confident the Supreme Court will affirm that the Trump administration cannot base policies on hostility toward a group of people,” Levi said. “As the Trump administration’s own attorneys admitted, these are qualified individuals who are meeting all military standards. There is no reason to waste millions of taxpayer dollars to kick out thousands of highly trained, skilled, and decorated troops based on nothing but hostility and this administration’s political whims.”
