COLUMN: The trans military ban is unconstitutional — the DC Circuit spoke, 2-1

June 1, 2026: a 2-1 verdict with powerful language

On June 1, 2026, the DC Circuit Court of Appeals ruled 2-1 that the policy of Secretary of Defense Pete Hegseth banning transgender people from military service is likely unconstitutional. The language used by the majority is remarkable: the policy "appears motivated by a bare desire to harm a politically unpopular group." This phrase — borrowed from Supreme Court discrimination jurisprudence — is a direct and unambiguous accusation. The court maintains the preliminary injunction protecting the 28 active plaintiffs.

What Hegseth's policy actually prohibited

Pete Hegseth's policy — as Defense Secretary appointed by President Trump at the start of his second term — banned transgender military service in a sweeping manner, reprising and extending a similar approach from the first term with broader regulatory foundations. It covered both the continued service of active transgender military members and the recruitment of new recruits. The court maintained the injunction for the 28 active plaintiffs — transgender service members currently serving — while allowing restrictions for new recruits, a distinction both parties contested in their respective ways.

I want to pause on this phrase from the majority: "motivated by a bare desire to harm a politically unpopular group." In American judicial language, this is an extraordinarily direct formulation. Judges don't say this lightly. It is a term of law — drawn from jurisprudence on states' freedom to target specific groups. When a court says that, it is saying: we see what you are really doing. And it won't stand.

A controversial Secretary of Defense

Pete Hegseth, appointed Secretary of Defense by Trump in January 2025, is a former Fox News host and Army veteran (he served in Iraq and Afghanistan). His nomination was controversial, notably due to allegations about past conduct and his very conservative public positions on several social issues. On the question of transgender service members, he had been explicit: he considered their presence incompatible with unit cohesion and military performance standards. His ban was announced in the first weeks of his tenure.

The "unit cohesion" argument refuted

The Trump administration had argued that the transgender ban was justified by considerations of unit cohesion, operational readiness, and medical costs. The appeals court examined these arguments and found them insufficient to justify a categorical exclusion. It noted that available military studies — including those commissioned by the military itself under previous administrations — did not support the idea that the presence of transgender soldiers harmed unit cohesion or effectiveness. Without solid empirical evidence, the cohesion argument cannot justify a constitutionally suspect exclusion.

The unit cohesion argument has a long history in the American military. It was used to justify racial segregation until 1948. It was used against women in combat roles. It was used against gay service members until the repeal of "Don't Ask, Don't Tell" in 2011. Each time, the military integrated the excluded groups — and cohesion held. I am developing a solid prior on this argument.

A 1996 precedent on anti-LGBT discrimination

The formulation used by the DC Circuit majority — "bare desire to harm a politically unpopular group" — is drawn directly from the Romer v. Evans ruling of 1996, in which the Supreme Court invalidated a Colorado constitutional amendment preventing laws protecting against discrimination based on sexual orientation. The Court had applied the rational basis review standard — the lowest level of constitutional scrutiny — and nevertheless struck down the measure because it had no legitimate rationale other than animosity toward a group.

Applying Romer to trans service members

By applying Romer v. Evans reasoning to Hegseth's policy, the DC Circuit is essentially saying: even applying the most lenient constitutional scrutiny standard, the policy does not hold. If a discriminatory policy cannot pass the easiest test — the rational basis test — it is because it is fundamentally motivated by animosity. This reasoning is particularly strong because it does not require ruling on whether transgender identity deserves a higher level of constitutional protection — a question the Supreme Court has not yet definitively resolved.

What I appreciate in the majority's reasoning is that it doesn't venture onto uncharted jurisprudential terrain. It doesn't need to decide whether transgender people are a "suspect class" deserving strict scrutiny. It simply says: even using the most permissive standard, this policy fails because it has no legitimate justification. That is a solid ruling, anchored in existing law, difficult to challenge on appeal.

Military careers in limbo

Behind the case number and constitutional abstractions, there are 28 soldiers — transgender men and women who serve or have served in the American armed forces. Some are veterans of combat in Afghanistan or the Middle East. Some have received military decorations. All signed a commitment to their country that should not be repudiated by policies based on their gender identity. The preliminary injunction maintained by the DC Circuit allows them to continue serving while the legality of the ban is examined.

The distinction between active members and new recruits

The court drew a distinction worth highlighting: it protects the 28 active plaintiffs — already serving military members — but allows restrictions for new recruits. This distinction is pragmatic but constitutionally imperfect from an equity standpoint: if the policy is likely unconstitutional for active service members, it should also be for prospective recruits. LGBT rights organizations noted this limitation, even while welcoming the partial victory.

Trans soldiers who honorably served their country, who fought, who risked their lives — and who must appear before a court to maintain the right to continue serving. I understand that law proceeds by steps, distinctions, preliminary injunctions. But I cannot help finding something deeply unjust about the fact that proven military courage is not sufficient protection against a discriminatory policy.

What the dissenting judge said

The dissenting judge in this 2-1 ruling argued that federal courts should give broad deference to executive decisions on military policy. Courts, in his view, are not well positioned to evaluate the considerations of cohesion, operational readiness, and discipline that are at the heart of military personnel decisions. He also argued that the Supreme Court has historically accorded particular deference to the executive on armed forces organization questions.

The majority's response

The majority responded to the military deference argument by noting that this deference has clear constitutional limits: it does not extend to policies that violate fundamental rights. The Supreme Court invalidated racial segregation in the military in 1948 despite similar deference arguments. Judicial deference is a tool for managing factual uncertainty — not a blank check for any military decision, whatever its constitutional foundation.

Judicial deference to military decisions is real and legitimate in certain contexts. I understand that judges should not micro-manage combat tactics or rules of engagement. But a policy of categorical exclusion based on gender identity is not a tactical decision. It is a decision of values. And constitutional values — those courts can and must evaluate.

Integration under Obama and its reversal under Trump I

Under President Obama, the military had progressively ended the ban on transgender service, allowing open service from 2016. Secretary of Defense Ash Carter had overseen this transition after extensive studies demonstrating the compatibility of transgender service with military standards. In 2017, President Trump had announced the transgender ban via Twitter — a decision that was blocked by several courts before being partially implemented in modified form in 2019. Under Biden, integration was restored in 2021.

The cycle of policies and its human cost

This cycle of integration, exclusion, reintegration, and exclusion again illustrates the human cost of using military policies for partisan political purposes. Transgender soldiers have seen their careers interrupted, resumed, then threatened again — depending on administration changes. This instability has effects on career planning, mental health, and the commitment of these soldiers to an institution that treats them as political variables rather than permanent members of its ranks.

I think about the transgender soldiers who have lived this cycle since 2016. Included, excluded, reintegrated, excluded again. This is not public policy — it is institutionalized cruelty. People who risked their lives for their country should not have to wonder, at each administration change, whether their service will still be accepted. The Constitution guarantees equality. That guarantee should not depend on the electoral cycle.

An American exception within NATO

The Trump administration's transgender service ban isolates the United States among its NATO allies. Canada, the United Kingdom, Australia, Germany, the Netherlands, France, and many other allied countries allow transgender military service without major restriction. None of these countries has reported reductions in cohesion or operational effectiveness attributable to the inclusion of transgender soldiers. This international reality substantially weakens the Trump administration's argument that transgender military presence is incompatible with an effective military.

Military studies on transgender inclusion

Several studies conducted by independent military research institutions — including the RAND Corporation in 2016 and 2018 — concluded that the inclusion of transgender soldiers had a minimal impact on unit readiness and cohesion, and a very low annual medical cost relative to the total military health budget. These studies had been commissioned by the Pentagon itself under the Obama administration. The Trump administration produced no contrary studies — it simply decided to disregard the available data.

When the entire NATO alliance — except the United States — includes transgender soldiers in its forces without documented cohesion problems, it is difficult to argue that inclusion is militarily incompatible. This is not a progressive argument. It is empirical observation. Our allies have run the experiment and it works. Ignoring this experience in favor of ideology-driven policy is putting politics ahead of national security.

What this ruling says about the state of the law

The DC Circuit's ruling of June 1, 2026 says several important things about the state of American constitutional law. It says that discrimination based on gender identity must at least pass the rational basis test — and that animosity toward a group is not sufficient to satisfy that test. It says that military deference is not absolute in the face of discriminatory exclusion policies. It says that the 28 soldiers who chose to fight legally deserved the courts' protection.

What comes next

The 2-1 ruling is probably not final. The Hegseth-Trump administration has announced its intention to bring the case to the Supreme Court, or to request en banc review by the full DC Circuit. The current Supreme Court — with its 6-3 conservative majority — has not yet ruled on the constitutional rights of transgender people in a military context. Its response to this question, if it chooses to address it, will be one of the most important civil rights decisions of the decade.

I have read testimonies from non-trans veterans defending their transgender colleagues. Not out of activism — out of military loyalty. What these soldiers say is that the trans people with whom they served were, first and foremost, competent and reliable soldiers. The policy wanted to turn their comrades into symbols of a culture war. The soldiers saw people. That is why the cohesion argument doesn't hold in units that have actually served together.

The effect on recruitment and retention

The American military has faced recruitment challenges for several years. The Army, the Navy, and other branches missed their recruitment targets in 2022, 2023, and 2024. Excluding qualified candidates on the basis of gender identity contributes to this recruitment deficit. Young Americans who might pursue military careers know their rights depend on who is in power — an instability that pushes them toward private employers offering more stable protections. The military loses talent because of exclusion policies supported by no serious military data.

The institutional trust issue

There is a less visible but important institutional cost to using the military as a terrain for cultural battles: the erosion of trust in the military institution itself. When soldiers see their colleagues — people with whom they served, fought, and shared field experiences — treated as political problems rather than equal members of their unit, it affects real cohesion, independent of official policies. Real unit cohesion is built on mutual trust. It does not survive institutional discrimination.

I end this column with one certainty and one uncertainty. The certainty: the appeals court was right to say that exclusion motivated by animosity is unconstitutional. The uncertainty: I don't know what the Supreme Court will say if it takes this case. A 6-3 conservative majority on a question of trans rights in the military — I have no confident prediction to offer. What I hope is that nine judges will remember they are talking about real people, not political abstractions.

By Maxime Marquette, columnist

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