Our latest post explored the Department of Defense’s (DoD) efforts to ban transgender individuals from serving in the military consistent with President Donald Trump’s Executive Order on transgender service. In that post, we largely focused on the litigation challenging the Executive Order, specifically examining the injunctions issued by Judge Ana Reyes in Talbott and Judge Benjamin Settle in Shilling, along with the DoD’s responses. In this post we look at how the litigation around the transgender ban—along with the DoD’s responses and the judicial decisions—may have impacts more broadly. First, we address the impact we expect these efforts to have on the ability and willingness of all service members to receive mental health care. Second, we explore the impact this litigation has on potential future plaintiffs challenging the administration’s use, deployment, and control of the military.
I. Potential Impact on Service Member Mental Health Treatment
First, as discussed in our initial post, the administration’s early implementation of the transgender ban largely relied upon transgender service members self-identifying and electing for a voluntary separation. The implementation guidance provided that should service members with a current (or history of) gender dysphoria diagnosis not self-identify and elect for voluntary separation, they would be involuntarily separated, unless certain retention criteria were met. Left unclear, though, was how exactly the military departments would identify members with a diagnosis, or history of, gender dysphoria if they did not self-identify. The March 21 Implementation Memo provided additional clarity. It explained that the military departments would conduct a review of the medical records, inclusive of mental health records, of military members with an eye towards whether they have a documented history of gender dysphoria. Further, it directed members to be asked whether they have a history of gender dysphoria as part of their annual physical health assessment, and should members answer “yes,” their command would be notified and involuntary discharge would follow. While not included in the March 21 memorandum, we recognize that the Department of Defense likely has the capability to conduct mass surveillance of service member social media content. It is reasonable to believe that such capability can also be easily deployed to identify service members experiencing gender dysphoria.
Such implementation is likely to have a chilling effect on all service members currently receiving mental health treatment or considering such in the future. We begin by looking at this chilling effect on transgender service members. As noted by Judge Reyes, all individuals who experience gender dysphoria are transgender. Transgender service members are not a monolith—some serve openly as transgender individuals, some medically transition, some continue to present in their assigned birth gender but openly and actively discuss their gender dysphoria, and some elect to remain entirely closeted. But the reality remains that many transgender individuals experience significant mental health despair. A recent study by the Williams Institute at UCLA School of Law found that 81% of transgender adults in the U.S. have thought about suicide, 42% of transgender adults have attempted it, and 56% have engaged in non-suicidal self-injury over their lifetimes. The same study found that 82% of transgender individuals have accessed formal mental health care, compared to 47% of cisgender adults.
Of important note, the fact that transgender individuals are more susceptible to mental health issues does not alone render them unfit or ill-equipped for military service. Transgender individuals must already pass mental health screenings to become service members. One can benefit from mental health support without being unfit to serve. As noted in the decisions of both Judge Reyes and Judge Settle, medical literature strongly supports that mental health care is highly effective in treating gender dysphoria. During the Biden administration, all transgender service members—no matter how they disclosed or presented their gender dysphoria—were able to receive mental health care from the Department of Defense. In some ways, the highly successful service of transgender individuals during the Biden administration supports the importance and effectiveness of access to mental health support.
Nonetheless, transgender service members availed themselves of such mental health treatment with a certain amount of trust that disclosing their gender dysphoria to a medical or mental health provider would not later be used against them. The March 21 Implementation Memo does just that—it allows for self-disclosures made while receiving medical and mental health care to be used as a basis for involuntary separation. For those military members who elected to remain closeted or not disclose or not act upon their gender dysphoria – but still receive mental health counseling to assist and treat their gender dysphoria—the implementation memo forcibly outs them and mandates their involuntary separation.
This betrayal of trust will only deter transgender service members from continuing to receive mental health treatment from the DoD. Tragically, it will deprive them from receiving mental health treatment when they likely need it the most as several questions remain looming over their heads: Will the injunction be lifted? Will the administration defy the administration? Will the administration start compiling a list so that they can immediately begin discharges should the injunction be lifted? Will they suffer harassment and discrimination? Will they be outed and face hostility from their family, command, and colleagues? Not to mention, they will be asking these questions all while the administration continues to argue that transgender members are not honorable or worthy of continued military service.
The chilling effect of the March 21 Implementation Memo on mental health treatment is likely to extend beyond transgender service members. There has long been a stigma against service members receiving mental health treatment. Army studies have concluded that the Army’s “culture of toughness, combined with social stigma, self-shame, and perceptions of negative career impacts,” deterred soldiers from seeking mental health care. Further studies have concluded that “mental health stigma and concern about one’s future in the military are impediments to service members obtaining mental health services.” From one of our own experiences, we can attest that concerns about maintaining a top-secret security clearance permeate the officer corps. The fear that even receiving mental health treatment could terminate a security clearance actively precludes service members from receiving mental health care.
And of course, service members deserve mental health care, and the profession necessitates it. Military members are asked to kill, to deploy, to work extreme hours, and to be separated from loved ones for long periods of time. Recognizing that the suicide rate with the DoD reflected an increasing long-term trend from 2011-2023, the military departments made a good faith effort to increase mental health opportunities for service members. Service members were given the option to receive care anonymously and were assured that receiving care would not hurt their careers.
Nonetheless, the March 21 Implementation Memo tells all service members that down the road, the comments they make and the thoughts they reveal in their mental health appointments may later be used against them. When coupled with an emphasis on a “warrior ethos” that prioritizes lethality and mission readiness over everything else, service members are likely to again fear mental health treatment and to refuse to get the help they need to address the stress attendant to military service.
II. Potential Impact on Future Plaintiffs
For transgender service members, the impact of the recent litigation is clear—the administration cannot proceed with its plan to involuntary separate transgender members absent defying the court orders. While the administration has sought immediate appellate relief, both the U.S. Court of Appeals for the Ninth Circuit and the U.S. Court of Appeals for the D.C. Circuit have refused to allow the administration to immediately begin implementing its ban. In this part, though, we explore the impact this litigation may have on future plaintiffs who wish to challenge the administration’s control and use of the military. We recognize, of course, that district courts are not appellate courts and that we do not know whether plaintiffs will ultimately prevail and if they do prevail, on what grounds. At the same time, we expect that future litigants will be looking at Talbott and Shilling for signs about how courts will address similar cases. We focus first on plaintiffs alleging equal protection violations and we then turn to plaintiffs alleging an abuse of military power.
A. Future Plaintiffs
The litigation concerning the transgender ban ultimately rests upon equal protection grounds; specifically, that the administration’s ban treated transgender members differently from cisgender members. In defense of this argument, the administration eventually offered military readiness justifications. It is reasonable to believe that the administration anticipated or at least hoped the judiciary would show deference to these military readiness justifications, as courts for decades have been hesitant to opine on military matters, especially when those military matters speak to military personnel. While the courts in Talbott and Shilling recognized the deference generally given to military matters, they also firmly held that there must be some reasoned, professional analysis conducted by the administration to support its actions in order to justify deference. Quite simply, the administration must offer rationales for its actions that are supported by the record.
For future plaintiffs alleging an equal protection violation, these decisions may appear to provide a playbook for how to oppose administration actions. For instance, plaintiffs hoping to challenge recently announced changes to physical testing for combat positions as discriminatory against women or the changes to grooming standards as discriminatory against African Americans may initially believe Talbott and Shilling will compel the judiciary to take seriously the need for reasoned deliberation and a substantial record to support these policies. But these policies are meaningfully different than the transgender ban in a few important respects. While the Supreme Court has recognized that a facially neutral government action may give rise to an equal protection violation, it may do so only when there is an underlying discriminatory intent to it and the action has a disparate impact. The only evidence we have seen to suggest a discriminatory intent for the physical testing standards are comments made by Secretary Hegseth prior to confirmation, which courts have recognized carry less persuasive weight, if they carry any at all, than comments made post-confirmation. Further, there may be in fact be significant evidence to support gender neutral standards for combat positions and at least some evidence for grooming standards. And there do not appear to be any comments made by Secretary Hegseth to suggest a discriminatory intent against African Americans with regards to grooming standards generally or rules about shaving in particular.
Another area where the playbook from Talbott and Shilling may appear to be especially helpful is for transgender members seeking or receiving gender affirming care through the Department of Veterans Affairs (VA). Since 2011, the VA has provided gender affirming care to veterans. This care included hormone therapy, mental health care, preoperative evaluations, letters necessary for surgeries outside the VA, wigs, prosthetics, hair removal, and voice coaching. Recently, though, the VA announced it was phasing out gender affirming care. The VA put an immediate stop to any new patients receiving any gender affirming care, while allowing veterans who were already receiving such care to continue doing so, for the time being. In executing this policy change, the VA Secretary justified it by stating, “I mean no disrespect to anyone, but VA should not be focused on helping veterans attempt to change their sex…. [I]f veterans want to attempt to change their sex, they can do so on their own dime.” This assertion seems to suggest the VA Secretary’s belief that gender affirming care is a personal choice and not a medical necessity. It also seems to suggest that providing gender affirming care is creating an unduly harmful financial burden on the VA.
At first glance, the VA’s actions appear ripe for challenges. Eligible veterans denied gender affirming care have three potential grounds for challenge: 1) equal protection grounds; 2) a failure on the VA’s part to engage in notice and comment and informal or formal rulemaking in effectuating the change; and 3) that the VA’s action was arbitrary and capricious.
Beginning with equal protection grounds, plaintiffs may allege that cisgender veterans are still receiving gender affirming care, as are transgender veterans who were receiving care prior to the policy change. As such, they may make the argument that their denial of gender affirming care is discrimination on the basis of sex. Remember, as explained in our last post both Judge Reyes and Judge Settle concluded that discrimination against only transgender individuals, even if it is not all transgender individuals, is still discrimination on the basis of sex. Talbott and Shilling seem to suggest that courts will apply intermediate scrutiny to this claim, requiring a demonstrated record to support the denial of gender affirming care for newly eligible transgender veterans, without giving blind deference to claims of military necessity. There may appear to be optimism here for newly eligible transgender veterans denied care. It appears as if the VA produced no record for the courts to review in considering whether such a policy is necessary or supported. Some have suggested the VA has no idea how much they have spent on gender affirming care for transgender veterans. We recommend tempering that optimism, though. The Supreme Court is currently considering United States v. Skrmetti, which in part considers what level of scrutiny transgender discrimination will receive. Several experts predict the Supreme Court will afford transgender individuals rational basis review as opposed to intermediate scrutiny. And if so, courts may be less likely to require the VA to produce a meaningful record of evidence to support its new policy.
Plaintiffs may also challenge the VA policy change as procedurally invalid. The VA did not engage in notice and comment prior to making the change. Similarly, the VA did not participate in informal or formal rulemaking. Yet, we believe again that plaintiffs should not have much optimism here. To allow for veterans to receive gender affirming care in 2011, President Barack Obama similarly neglected to engage in notice and comments and informal or informal rulemaking. His administration provided gender affirming care to veterans through a policy directive, thereby making it easier for the Trump administration to change course also through a policy directive. We highlight that such changes—both providing gender affirming and then not providing and not providing gender affirming—are substantial changes that warrant the guarantees of public engagement and participating attendance to notice and comment procedures.
A final potential ground for challenge available to plaintiffs is to claim that the VA’s decision was arbitrary and capricious under the Administrative Procedure Act. The Supreme Court has provided that “an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or it is implausible that it could be ascribed to a difference in view or the product of agency expertise.” It appears as if the VA’s decision to cease gender affirming care for newly eligible veterans runs counter to the evidence before the agency. As discussed earlier, there is strong evidence to suggest that transgender individuals have a higher risk of mental health issues and suicide. Further, the policy change continues to provide gender affirming care for veterans already receiving it. The fact these veterans still will receive treatment suggest that there is evidence to support it, which in turn suggests the ban for newly eligible members runs counter to that evidence.
B. Future Plaintiffs Challenging the Use of the Military
Although Talbott and Shilling are most applicable to cases arising on equal protection grounds, they may also point a way ahead for plaintiffs seeking judicial review of the administration’s actual use and deployment of military power. Robert Tsai has previously warned of “manufactured emergencies” where the executive branch may manufacture situations that unlock broad and largely unchecked powers and authorities that allow it to violate constitutional norms absent rigorous judicial review. Perhaps Talbott and Shilling provide a gameplan to plaintiffs facing such a “manufactured emergency.”
Such a potential scenario could be the president’s invocation of the Insurrection Act to justify the use of the federal military domestically. The Insurrection Act is a series of statutes that allows the president to make findings of fact that either “unlawful obstructions, combinations, or assemblages, or rebelling against the authority of the United States, make it impracticable to enforce the laws of the United States” or that “insurrection, domestic violence, unlawful combination, or conspiracy…hinders the execution” of federal or “impedes the course of justice under those laws.” Once the president makes the determination that such an insurrection is taking place, he is then largely free to deploy the military domestically to quell the insurrections.
One of us, along with several others, have warned of the potential abuse of the Insurrection Act. President Trump has regularly flirted with invoking the Insurrection Act so that he could deploy the military domestically. What if he carries through with the threats? And what if the underlying basis to do so—the finding of fact that an insurrection is taking place—is pretextual? What then stops the President from using the military to quell dissent, punish his opposition, and incentivize compliance? In this scenario, the president would be acting with congressional authorization and thus would be at the zenith of his power. While courts will generally defer to the Executive Branch when acting under congressional authorization, Talbott and Shilling potentially give some hope to immediate judicial review. In this scenario, an impacted plaintiff may seek injunctive relief predicated upon judicial review of the president’s initial determination that an insurrection is occurring. From there, the court may review whether there are sufficient facts to support the president’s rationale for invoking the Insurrection Act, without having to consider the actual use of the military. Should a court find there are not sufficient facts to support the president’s invocation of the Insurrection Act, the court may then issue an injunction preventing the use of the military domestically.
Of note, the Trump administration appears to be aware of the possibility of judicial review and injunctive relief of any invocation of the Insurrection Act. In January, President Trump issued an Executive Order declaring a national emergency at the southern border. As part of the Executive Order, he directed that “Within 90 days of the date of this proclamation, the Secretary of Defense and the Secretary of Homeland Security shall submit a joint report to the President about the conditions at the southern border…and ay recommendations regarding additional actions…including whether to invoke the Insurrection Act of 1807.” Should the president invoke the Insurrection Act following receipt of this report, the question will then shift to how courts will review the evidence in the report and the amount of deference provided to the administration.
An additional scenario may be the invocation of martial law, which places civilians under the control and legal authority of the military. The Supreme Court has considered the invocation of martial law several times. In Ex parte Milligan, the Supreme Court considered the Lincoln administration’s invocation of martial law in Indiana. Lincoln had appointed General Alvin Hovey as the military commander of Indiana. General Hovey placed Milligan, an outspoken critic of Lincoln, under arrest and tried him before a military tribunal. The Supreme Court struck down Lincoln’s invocation of martial law and General Hovey’s actions, finding that a civilian operating outside the battlefield, in an area where the civilian courts remained open, had a right to be tried in civilian court. The majority decision emphasized the martial law was confined to areas of “military operation, where war prevails,” and that “martial rule can never exist when the courts are open.” In reaching this decision, the Court emphasized that “Martial law cannot rise from a threatened invasion…. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.
The Court considered the specter of martial law during World War II. Following Pearl Harbor, Congress authorized the territorial governor of Hawaii to declare martial law. After martial law was declared, the military governor tried two civilians—a stockbroker and a civilian shiplifter—before military commissions for crimes that had no connection to national security matters. In Duncan v. Kahanamoku, the Supreme Court rejected the application of martial law in Hawaii. The Court noted that Congress had not expressly granted this authority to the governor of Hawaii and that “[p]eople of many ages and countries have feared and unflinchingly opposed the kind of subordination of executive, legislative, and judicial authorities to complete military rule.” Absent this congressional authorization, the Court relied on factual determinations—that the civilian courts and civil offices remained open—in concluding that it would not just defer to the Executive Branch’s invocation of martial law. The Court further noted that the framers “were opposed to governments that placed in the hands of one man the power to make, interpret, and enforce the laws. Their philosophy has been the people’s throughout our history.” A concurring opinion highlighted that this “supremacy of the civil over the military is one of our great heritages. It has made possible the attainment of a high degree of liberty regulated by law, rather than by caprice.”
These cases suggest the invocation of martial law is only permissible in only the most extreme circumstances. But the Court has also allowed presidential administrations to subject American citizens to trial by military tribunal. In both the situations, the Court again found that Congress had delegated such authority to the President, to include making a finding of fact that the American citizen was an enemy combatant and that trial by military commission was necessary. Similarly alarming is the Court’s recent decision to allow President Trump to seize and deport individuals under his invocation of the Alien Enemies Act. What then is stopping the Trump administration from doing the same for political opponents? Again, the hope remains that Talbott and Shilling can at least encourage a court to review the President’s finding of fact, looking for some support that an American citizen poses such a threat that trial by military tribunal is appropriate.
The views expressed in this post are those of the authors and not of the Department of Defense or any military department.
