Legal Challenge to Trump's Transgender Military Ban: Shilling v. Trump

On Monday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit convened in Portland, Oregon, to hear arguments in the case of *Shilling v. Trump*. This case challenges President Donald Trump’s reinstated ban on military service by transgender individuals, which the plaintiffs argue is unconstitutional. The policy, enacted by the Department of Defense in February, prohibits individuals diagnosed with gender dysphoria from enlisting or continuing their military service.

The Advocate

Deputy Associate Attorney General Abhishek Kambli, representing the government, characterized the policy as a "neutral medical standard" rather than a blanket exclusion. He stated that the court must determine if the plaintiffs have shown that the military is constitutionally barred from implementing this policy. However, Judge Morgan Christen questioned this characterization, highlighting that the policy applies broadly to anyone who has undergone or plans to undergo gender-affirming care.

The Advocate

Sasha Buchert, senior counsel at Lambda Legal and representing the plaintiffs, argued that the policy specifically targets transgender individuals rather than addressing a medical condition. She emphasized that the plaintiffs, including lead plaintiff Emily Shilling, a decorated U.S. Navy officer, have served honorably and should not face discharge based on their gender identity.

The Advocate

The court's deliberations focused on the standard of scrutiny that should apply to the policy. Under rational-basis review, the government must show that the policy is reasonably related to a legitimate purpose, while intermediate scrutiny requires the government to demonstrate that the policy serves an important objective and is substantially related to achieving it. The Ninth Circuit has previously applied the latter standard in cases involving discrimination against transgender individuals.

The Advocate

Judge Consuelo Callahan noted the uncertainty surrounding the U.S. Supreme Court's stance on transgender protections, as it has not explicitly recognized transgender individuals as a protected class. Kambli maintained that the policy would withstand either standard due to its basis in professional judgment regarding military readiness and unit cohesion.

The Advocate

Twenty states, including Oregon, Washington, California, and New York, filed an amicus brief supporting the plaintiffs, arguing that the ban undermines national security by excluding qualified individuals. Lambda Legal and the Human Rights Campaign Foundation have called for the Ninth Circuit to uphold a preliminary injunction blocking the policy, asserting that it is driven by animus rather than military necessity.

The Advocate

The Ninth Circuit is expected to issue a ruling on *Shilling v. Trump* in the coming months. If the court upholds the preliminary injunction from U.S. District Judge Benjamin Settle, the ban will remain blocked nationwide. Conversely, if the court rules in favor of the government, the ban will remain in effect as the case progresses toward a potentially divided Supreme Court.

The Advocate

• “is cruel, unpatriotic, and compromises the unity and quality of our armed forces. This is animus, plain and simple — and we expect the Ninth Circuit will agree that these blatantly discriminatory policies have no place in our military.” — Kelley Robinson, President of the Human Rights Campaign Foundation

The Advocate

• “Every transgender person in the military is affected and harmed by this policy.” — Sasha Buchert, Senior Counsel at Lambda Legal

The Advocate

• “We don’t really know what the Supreme Court’s going to do,” — Judge Consuelo Callahan, U.S. Court of Appeals for the Ninth Circuit

The Advocate

This case encapsulates a significant legal and cultural struggle over the rights of transgender individuals in the military, reflecting broader societal debates on inclusion and equality.

The Advocate