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

> 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 discriminatio

- Author: Maxime Marquette
- Publisher: MadMax (https://mad-max.co)
- Section: Column
- Published: 2026-06-29
- Canonical URL: https://mad-max.co/en/article/chronique-l-interdiction-des-militaires-trans-est-inconstitutionnelle-le-dc-circ

## Introduction: a ruling that says exclusion is motivated by the desire to harm

### 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.*

## Who is Pete Hegseth and what is his position on trans people in the military?

### 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.*

## The underlying jurisprudence: the Romer v. Evans standard

### 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.*

## The 28 plaintiffs: soldiers, not symbols

### 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.*

## The dissent: the military deference argument

### 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.*

## The history of trans service members: from inclusion to exclusion and back

### 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.*

## The international picture: other democracies allow trans service members

### 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.*

## Conclusion: a column on a constitutional line held

### 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 human and institutional costs of military policy instability

### 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**

## Columnist's transparency note

### Editorial stance

I am not a journalist but a **columnist and analyst**. My expertise lies in observing and analysing the geopolitical, economic and strategic dynamics that shape our world. My work is to take political strategies apart, to understand global economic movements, to put the decisions of international actors in context and to offer analytical perspectives on the changes that are redefining our societies.

I do not claim the cold objectivity of traditional journalism, which stops at reporting facts. **I claim analytical clarity**, rigorous interpretation and a deep understanding of the complex issues that concern us all. My role is to give meaning to the facts, to place them in their historical and strategic context, and to offer a critical reading of events.

### Method and sources

This text keeps the basic distinction between **verified facts and interpretive analysis**. The rule never changes: a factual claim is published only when a verifiable source supports it, and the sources this article actually used are listed under **Sources**, never here.

**Primary source families** used by the publication, when the story has them: official statements from governments and international institutions, public statements by political leaders, reports from intergovernmental organisations, dispatches from recognised international news agencies.

**Secondary source families**: specialised publications, internationally recognised news media, analyses from established research institutions, reports from industry organisations.

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### Nature of the analysis

The analyses, interpretations and perspectives in the analytical sections of this article are a **critical, contextual synthesis** based on the information available, the trends observed and the expert comments cited in the sources consulted.

My role is to interpret these facts, to set them in the context of today's geopolitical and economic dynamics, and to give them a coherent meaning within the larger story of the changes shaping our time. These analyses reflect expertise built through continuous observation of international affairs and an understanding of the strategic mechanisms that drive global actors.

This article describes a documented state of affairs on its publication date, not a prediction: later developments may shift its outlook. No update is promised in advance; when an article is corrected or completed, the change is dated in the text.

## Sources

### Primary sources

- [Stars and Stripes — Court ruling on Pentagon transgender troops — June 1, 2026](https://www.stripes.com/theaters/us/2026-06-01/court-ruling-pentagon-transgender-troops-21844189.html)

- [New York Times — Transgender troops appeals court ruling — June 1, 2026](https://www.nytimes.com/2026/06/01/us/transgender-troops-appeals-court-ruling.html)

- [CFORC — Federal appeals court rules Trump ban on trans troops unconstitutional — 2026](https://cforc.com/2026/06/federal-appeals-court-ruled-trump-ban-on-trans-identified-troops-as-unconstitutional/)

### Secondary sources

- [Townhall — Federal court blocks Trump ban on transgender service members — June 1, 2026](https://townhall.com/tipsheet/josephchalfant/2026/06/01/federal-court-blocks-trump-administration-ban-on-transgender-service-members-n2677038)

- [Washington Times — Appeals court rejects Trump ban on transgender troops — June 1, 2026](https://www.washingtontimes.com/news/2026/jun/1/appeals-court-rejects-trump-administration-ban-transgender-troops/)

- [Colorado Politics — District courts face repeated slap-downs by appeals courts — June 22, 2026](https://www.coloradopolitics.com/2026/06/22/district-court-judges-weighing-trump-policies-face-repeated-slap-downs-by-appeals-courts)

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Source: Maxime Marquette, MadMax. When citing, name the author and link https://mad-max.co/en/article/chronique-l-interdiction-des-militaires-trans-est-inconstitutionnelle-le-dc-circ