Judge Reyes’ Abominable Transgender Opinion

Judge Ana Reyes, a federal district court judge in Washington, D.C., issued a preliminary injunction last week barring the Trump administration from expelling certain transgender service members from the military.

The Trump administration appealed Friday, arguing the president’s executive order barring transgender individuals “turns on gender dysphoria—a medical condition—and does not discriminate against trans-identifying persons as a class.” 

The Biden-appointed judge’s 79-page written opinion is not persuasive for the reasons discussed below, thus increasing the chances of her ruling being overturned on appeal.

The Daily Signal depends on the support of readers like you. Donate now

What It Takes to Serve

The U.S. military exists to defend the nation. As an all-volunteer force, the military relies on qualified men and women volunteering to serve in the Army, Navy, Marine Corps, Air Force, or Space Force. Enlisted men and women are typically high school graduates, young, meet or exceed certain physical and mental aptitude tests, and pass security background checks. Officers are college graduates and must pass the same or similar tests as enlisted personnel.

Not everyone is cut out to serve in the military. Far from it. Some don’t want to serve. Others want to serve but are not eligible because they are overweight, have asthma, musculoskeletal issues, vision or hearing impairments, dental issues, allergies, skin conditions, psychiatric disorders, eating disorders, learning disabilities, or one or more of hundreds of other disqualifying physical or mental conditions. Others are eligible to serve but don’t pass the minimum physical or mental tests. 

The military is not a jobs program for all comers. Because of its unique and critical mission, the United States military cannot afford to hire people who cannot serve for physical, medical, emotional, or psychological reasons. That lawful discrimination is rationally related to a legitimate, indeed compelling, government interest. Our military must only hire men and women who are ready, willing and able, twenty-four hours a day, seven days a week, 365 days a year, to deploy anywhere in the world at a moment’s notice and who have the physical, mental, emotional, and psychological stability and toughness to fight and win. 

Department of Defense Instruction 6130.03, Vol. 1 dictates the medical standards for military service in the U.S. armed forces. Like it or not, the instructions list 30 broad categories containing hundreds of specific physical and psychiatric conditions that disqualify a man or woman from joining the armed forces.  

Section Six of the instruction lists disqualifying characteristics and subsection 28 is titled “Learning, Psychiatric, and Behavioral Disorders.” A person who has any one of the following conditions is not eligible to join the U.S. armed forces:

• Attention Deficit Hyperactivity Disorder, if with: (1) A recommended or prescribed Individualized Education Program, 504 Plan, or work accommodations after the 14th birthday; (2) A history of comorbid mental disorders; (3) Prescribed medication in the previous 24 months; or (4) Documentation of adverse academic, occupational, or work performance. 
• History of learning disorders after the 14th birthday, including, but not limited to, dyslexia, if any of the following apply: (1) With a recommended or prescribed Individualized Education Program, 504 Plan, or work accommodations after the 14th birthday; (2) With a history of comorbid mental disorders; or (3) With documentation of adverse academic, occupational, or work performance. 
• Autism spectrum disorders. 
• History of disorders with psychotic features such as schizophrenic disorders, delusional disorders, or other unspecified psychoses or mood disorders with psychotic features.
• History of bipolar and related disorders (formerly identified as mood disorders not otherwise specified) including, but not limited to, cyclothymic disorders and affective psychoses. 
• Depressive disorder if: (1) Outpatient care including counseling required for longer than 12 cumulative months; (2) Symptoms or treatment within the previous 36 months; (3) The applicant required any inpatient treatment in a hospital or residential facility; (4) Any recurrence; or (5) Any suicidality. 
• History of a single adjustment disorder if treated or symptomatic within the previous 6 months, or any history of chronic (lasting longer than 6 months) or recurrent episodes of adjustment disorders. 
• History of conduct disorders, oppositional defiance disorders, and other behavior disorders. 
• History of personality disorder or maladaptive personality traits including reasonable suspicion for the presence of an undiagnosed personality disorder, based on: (1) Documentation of the recurrent inability to adapt in a school, employment, or training setting that resulted in significant distress or functional impairment within the previous 24 months and that is not better accounted for by another condition; or (2) Psychological testing revealing that the degree of immaturity, instability, personality inadequacy, impulsiveness, or dependency may reasonably be expected to interfere with their adjustment to the Military Services. 
• Encopresis after 13th birthday. 
• History of any eating disorder. 
• Any current communication disorder that significantly interferes with producing speech or repeating commands. 
• History of suicidality, including: (1) Suicide attempt(s); (2) Suicidal gesture(s); (3) Suicidal ideation with a plan; or (4) Any suicidal ideation within the previous 12 months.
• History of self-harm that is endorsed, documented, or otherwise clinically suspected based on scarring. 
• History of obsessive-compulsive or related disorder(s). 
• History of trauma or stressor related disorders, including, but not limited to, post-traumatic stress disorder. 
• History of anxiety disorders if: (1) Outpatient care including counseling was required for longer than 12 cumulative months. (2) Symptomatic or treatment within the previous 36 months. (3) The applicant required any inpatient treatment in a hospital or residential facility. (4) Any recurrence. 
• History of dissociative disorders. 
• History of somatic symptoms and related disorders. 
• History of paraphilic disorders. 
• Any history of substance-related and addictive disorders (except using caffeine or tobacco). 
• History of prescription with psychotropic medication within the previous 36 months, unless a shorter period is authorized by another standard. 
• History of other mental disorders that may reasonably be expected to interfere with or prevent satisfactory performance of military duty. 
• Prior psychiatric hospitalization for any cause.

I listed these conditions to demonstrate that the military lawfully discriminates against myriad people with mental health conditions. We do so not because we are callous, unfeeling, or don’t wish the best for people (including family members and friends) with these conditions.  

We all know people with physical and/or mental health conditions that disqualify them from serving in the armed forces. These are our family members, our friends, and our community members.  

But just because they are our loved ones, friends, and community members doesn’t mean that the military should ignore standards and hire everyone. Hiring such individuals would negatively impact the readiness of their units and potentially impact the safety of the person hired and his or her comrades.  

The profession of arms is different from all other professions. The demands, operational tempo, physical and mental stressors, and lifestyle are distinct from all (except for a small handful of) civilian jobs. That requires the military to make sensible, reasoned choices about who can and who cannot be allowed to serve in the armed forces of the United States.  

As Tom Spoehr, a retired three-star general and former director of The Heritage Foundation’s Center for National Defense, wrote in 2019 while addressing the issue of whether transgender individuals should be excluded from service in the armed forces, “Military service is inherently stressful. It takes service members and puts them in unfamiliar, lonely, austere and often hostile areas. Stress, anxiety, and suicide are already existential military problems.”  

Spoehr added the following: “Individuals with gender dysphoria experience severe anxiety at between eight and nine times the rate of individuals without gender dysphoria. What’s more, there is no evidence that medical treatment, including gender-reassignment surgery, can remedy those challenges.”

Trump’s Executive Order

On Jan. 27, 2025, President Donald Trump issued Executive Order No. 14183, “Prioritizing Military Excellence and Readiness.” The order references the Defense Department instruction discussed above, and stated, “Longstanding Department of Defense policy…provides that it is the policy of the DoD to ensure that service members are ‘free of medical conditions or physical defects that may reasonably be expected to require excessive time lost from duty for necessary treatment or hospitalization.’” 

The EO directed the secretary of defense to update, within 60 days of the order’s issuance, DOD Instruction 6130.03 to prohibit individuals who suffer from gender dysphoria from serving in the armed forces of the United States.  

On Feb. 26, 2025, following the lawful order of the commander in chief, Secretary of Defense Pete Hegseth issued a written policy to implement the EO. 

Reyes pointed out in her opinion that neither the Trump EO nor the Hegseth policy uses the word “transgender.”  That’s because the Trump EO and the Hegseth policy directive ban people with gender dysphoria (described fully below) from serving. Nonetheless, Reyes concluded in footnotes one and two of her opinion that the actions of both men actually ban transgender persons, not just people suffering from gender dysphoria.

Boiled down to its essence, the Hegseth memo states:

It is the policy of the United States Government to establish high standards for Service member readiness, lethality, cohesion, honesty, humility, uniformity, and integrity. This policy is inconsistent with the medical, surgical, and mental health constraints on individuals with gender dysphoria or who have a current diagnosis or history of, or exhibit symptoms consistent with, gender dysphoria.

Notably, the policy allows for exceptions on the case-by-case basis, stating: 

Applicants disqualified pursuant to sections 4.1.a. and 4.1.b. of this attachment may be considered for a waiver on a case-by-case basis, provided there is a compelling Government interest in accessing the applicant that directly supports warfighting capabilities.

The policy canceled all scheduled, unscheduled, or planned surgical procedures to treat gender dysphoria, but directed that those suffering from gender dysphoria who are taking cross-sex hormone therapy may continue to take those medications, at taxpayer expense, until the member is discharged from the armed services.  

To receive a waiver from the general prohibition against serving when suffering from gender dysphoria, there must be a compelling government interest in retaining the service member that directly supports warfighting capabilities and the service member must prove the following:

1. The Service member demonstrates 36 consecutive months of stability in the Service member’s sex without clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

2. The Service member demonstrates that he or she has never attempted to transition to any sex other than their sex; and

3. The Service member is willing and able to adhere to all applicable standards,
including the standards associated with the Service member’s sex.

I am not aware of any other disqualifying mental health conditions in the DOD Instruction that gives current service members or those who want to join the service the chance, on a case-by-case basis, to otherwise qualify to serve as long as they meet certain criteria.

The Judge’s Tortured Ruling

Reyes tips her hand on Page One of her ruling by using the preferred language of the victim industrial complex currently in vogue when she refers to “marginalized persons.” Worse yet, she incorrectly states that “leaders have used concern for military readiness to deny marginalized persons the privilege of serving.”  

On Page Two, she asserts that minorities and gays have been denied the “privilege of serving.” 

That’s false.

Blacks have served with distinction in the U.S. armed forces since before the Civil War. And homosexuals have served with distinction in the U.S. armed forces since our founding.  

Women have served with distinction in the U.S. armed forces for most of our nations’ history.  

The fact that there were racially segregated units until 1948, or that all combat roles (including special forces) were not open to women until 2016, or that gays could not serve “openly” in the armed forces until 2011, has nothing to do with whether “marginalized persons” had the privilege of serving. They all served and have done so for almost 200 years.  

But this is how Reyes opens her opinion. Falsely asserting that blacks, women, and gays did not serve, and conflating skin color, sex, and sexual orientation with people who suffer from a cognizable mental disorder, gender dysphoria. This false premise infects the rest of her opinion.

Next, she faults Trump for issuing the EO “within seven days of taking office” and Hegseth for issuing his policy directive only thirty days later, tut-tutting that “there is no evidence that they consulted with uniformed military leaders before doing so.” Obviously, there is no requirement whatsoever that the commander in chief or the secretary of defense consult their subordinates before issuing a policy change, yet Reyes seems to think there is such a legal requirement.  

Note to Reyes: The president of the United States is the commander in chief of the Army and Navy of the United States. See Article II, Section 2 of the U.S. Constitution. Uniformed military leaders serve under the secretary of defense. The secretary of defense serves under the president. Uniformed military leaders and the secretary of defense serve at the pleasure of the president.

Ironically, in faulting Trump and Hegseth for supposedly rushing the issuance of the executive order and policy directive without any thought or study, Reyes dedicates over six pages of her opinion detailing the history of the issue, starting with President Barack Obama’s directive to his defense secretary to study the issue of whether transgender persons should be allowed to serve in the armed forces. She traces the studies relied upon in the Obama administration, Trump’s first term in office and his attempts to ban transgender people from serving, the ensuing lawsuits, the 2017 revised memo from the Defense Department, which narrowed the class of people covered by the prohibition, the Biden years, and more.

In faulting Trump and Hegseth for “rushing” their policies, she ignores the fact that this issue has been discussed, debated, litigated, studied, and more for over 11 years at the highest levels of the government. Even if that wasn’t the case, Reyes ignores the fact that Trump became the presumptive Republican nominee on March 12, 2024, was elected on Nov. 5, 2024, and wasn’t sworn into office until Jan. 20, 2025. Nominees for president, and the president-elect, don’t start thinking about policy issues on Jan. 20, after they are sworn into office, much less someone who already served in that office for four years. 

After several currently serving transgender personnel sued to enjoin the policy from going into effect, the Department of Defense stated that the Hegseth policy memo was informed by, among other things:

1. The secretary of defense memo from Feb. 22, 2018, issued by Secretary James Mattis.
2. A 2021 review conducted by the Accession Medical Standards Analysis and Research Activity.
3. A 2025 medical literature review.
4. A review of cost data.

Of course, the first Trump administration had studied and worked on this issue for almost four years.  

Despite all of that, Reyes observed that “no panel of experts—or any other kind—informed the Hegseth policy.” There is no legal requirement whatsoever for there to be a “panel of experts” convened to study a policy change, nor does Reyes cite any authority for her bald assertion.  

The next red herring in Reyes’ opinion is what she calls the “premise” of her long opinion: “All people are created equal, all means all. Nothing more. And certainly nothing less.”

By evoking the language of the Declaration of Independence, Reyes must think that her pseudo-patriotic verbiage will somehow insulate her poorly reasoned opinion from scrutiny.  

She is grossly mistaken.

When it comes to whether someone is physically, emotionally, or psychologically qualified to serve in the armed forces, everyone is not equal. True, everyone has equal value and dignity as a human being. But that’s not the point. 

Equal value and dignity as a human being does not translate to equality of suitability to serve in the armed forces, a fact that Judge Reyes blatantly ignores. People who are obese, colorblind, diabetics, psychotic, lost an arm or leg, have one lung, or have a bad heart are all creatures of God. They have equal worth. But they are not eligible to serve in the U.S. military. In that sense, they are not equal to those who are qualified to serve in the military. Those judgments are not based on animus or pretext, as Reyes claims, but on practical realities of the rigors of warfighting.

Deference in Name Only

Reyes paid lip service to her duty to give appropriate deference to the executive branch with respect to carrying out military policy. She acknowledged that courts often accept the “reasoned, professional analysis of Congress and the Executive on matters strictly within the realm of military expertise.” After that perfunctory judicial genuflection, she concludes that “defendants carry deference too far,” and that “the law does not demand that the Court rubber stamp illogical judgments based on conjecture.”  

And even though Reyes notes that the Supreme Court and D.C. Circuit have not addressed the issue of whether transgender persons are a quasi-suspect class for purposes of constitutional analysis, she concludes that they are. She notes that transgender persons face discrimination, that they contribute to society, and that they “constitute a discrete group with immutable characteristics.”  

Finally, in case anyone might mistake her opinion for a legal opinion instead of a political document, Reyes dedicated an entire section of her opinion to the fact (in her mind) that transgender persons “constitute a minority lacking political power.”  

Hopefully the appeals court will reverse this abominable opinion.