FILE – President Donald Trump throws pens used to sign executive orders to the crowd during an indoor Presidential Inauguration parade event in Washington, Monday, Jan. 20, 2025 (AP Photo/Matt Rourke, File).
A group of named plaintiffs, in what appears to be the first lawsuit of its kind, is suing the Trump administration to put a quick stop to the anti-transgender military service ban.
On Jan. 27, President Donald Trump signed an executive order described as an effort to “ensure the readiness and effectiveness” of the U.S. armed forces – aimed at thinning the military’s ranks of individuals who identify as a gender different than their assigned sex at birth. Similar to an earlier anti-transgender executive order, the military focused policy excoriates “radical gender ideology.”
Trump also directly rescinded a previous executive order signed in January 2021 allowing transgender individuals to serve in the military.
On Jan. 28, lead plaintiff Nicolas Talbott and seven others filed their complaint with the U.S. District Court for the District of Columbia. After a brief procedural hiccup, the case was assigned to Joe Biden-appointed U.S. District Judge Ana C. Reyes.
On Monday, the plaintiffs filed a motion for a preliminary injunction – a form of relief that could very well stop the transgender ban from going into effect pending the outcome of the broader case. The judge scheduled a hearing to hash out that motion on Feb. 12.
On Tuesday, aiming for somewhat quicker action, the plaintiffs filed an emergency application for a temporary restraining order.
“Plaintiffs are six transgender service members and two transgender individuals actively pursuing enlistment,” the motion reads. “The ban will inflict irreparable injuries on Plaintiffs and other prospective and current transgender service members. They will be discharged or barred from service, lose their means of supporting themselves and their families, and stripped of the honor, status, and benefits associated with uniformed service to their country.”
The plaintiffs say the swift actions of the U.S. Department of Defense have necessitated their latest, emergency filing.
“[A] transgender service member is already being administratively separated,” the motion goes on. “Even after Plaintiffs filed their complaint and after the Court informed counsel for the parties that it expected expedited briefing on a preliminary injunction application, this service member was presented with an ultimatum: that she must be classified and treated as a man—i.e., not be transgender—or be separated.”
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In other words, the Trump administration is moving much faster than the court system in order to effectuate preferred policy goals.
The filing relays the story of Miriam Perelson, who is not a party to the current action, and how her unit is dealing with her identifying as a transgender woman. The plaintiffs cast the issue – and the concomitant legal battle – about something immutable.
From the motion, at length:
Requiring Miriam, a transgender woman, to serve as a man is the same as saying she cannot serve at all, since it requires her to stop being transgender, which she cannot do because she is transgender. When her commanding officer asked her to sign a statement affirming that she would agree not to be transgender, she did not sign because she is transgender. When she informed her officer that she could not sign the document, she was informed she would be administratively separated.
The preliminary injunction proceedings, the plaintiffs argue in no uncertain terms, are simply not happening fast enough.
“Urgent relief is required to prevent Plaintiffs and other service members from being deprived of their careers and suffering dehumanizing treatment based solely on their transgender status while the Court considers the Application for Preliminary Injunction,” the motion for the restraining order goes on.
To hear the plaintiffs tell it, the Trump administration’s policy is a violation of the Fifth Amendment’s equal protection clause.
“The President’s categorical exclusion of transgender people lacks any rational basis whatsoever,” the motion argues. “By singling out transgender people for differential treatment, the President’s Order creates a sex-based classification that is subject to, and fails, intermediate equal protection scrutiny.”
The executive order is constitutionally impermissible because it “targets transgender status itself,” according to the plaintiffs, and goes on to discriminate in multiple separate ways.
First, the plaintiffs claim an “explicit classification on the basis of transgender status is inherently a sex-based classification,” which is strongly disfavored by the U.S. Supreme Court. In the past, the nation’s high court has recognized, and the plaintiffs note: “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The plaintiffs, citing from the same ruling, go on to explain that people cannot be penalized for sex-based traits or actions.
“[T]he Order also discriminates based on sex by requiring that all service members conform to the sex stereotypes associated with their birth sex,” the motion continues. “By prohibiting military service by transgender individuals because they do not conform to sex stereotypes, the Order impermissibly discriminates based on sex.”
On Tuesday afternoon, the court held a preliminary hearing on the request for a temporary restraining order. The proceeding ended with no conclusion. The judge ordered the parties to produce a joint status report by late Wednesday afternoon. A second hearing on the emergency application is currently slated for Friday.
