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Left: U.S. District Judge Ana C. Reyes during her confirmation hearings in June 2022 (U.S. Senate/YouTube). Right: President Donald Trump departs after speaking at Mar-a-Lago in Palm Beach, Fla., Tuesday, Feb. 18, 2025 (Pool via AP).
A federal judge who earned the Trump administration’s ire asked the Pentagon several pointed questions in response to the transgender service member ban in an unusual court order on Thursday.
Earlier this month, U.S. District Judge Ana C. Reyes, a Joe Biden appointee, repeatedly ridiculed the legal position taken by the U.S. Department of Justice in the underlying litigation. During that lengthy hearing, the judge even went so far as to illustrate her opinion of the anti-transgender policy by mockingly barring graduates of the University of Virginia law school from her courtroom — a pointed rejoinder to the DOJ lawyer arguing the government’s position.
The two-day hearing concerned a preliminary injunction request. Lead plaintiff Nicolas Talbott and seven others allege the ban violates the Due Process clause of the Fifth Amendment by discriminating against people “based on their sex and based on their transgender status.”
The government, for their part, has argued that reading the policy guidelines in Executive Order 14183 as an outright ban is not correct — because the Pentagon could use discretion to craft a policy that might not apply universally to all transgender people in the armed forces.
On Wednesday, the Pentagon implemented President Donald Trump‘s policy preferences, which were added to the docket as a 13-page filing. A short, 2-page memo bearing the subject line “Additional Guidance on Prioritizing Military Excellence and Readiness” rescinds various Biden-era pro-transgender policies. An accompanying 11-page attachment uses the term “gender dysphoria” to set out the Trump administration’s vision.
“It is the policy of the United States Government to establish high standards for Service member readiness, lethality, cohesion, honesty, humility, uniformity, and integrity,” the document reads. “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.”
Now, the court appears intent to extract several pieces of telling information about the inner workings of the Department of Defense.
The broad policy expressed by the Trump administration is that service members “and applicants for military service who have a current diagnosis or history of, or exhibit symptoms consistent with, gender dysphoria is incompatible with military service” because their service “is not in the best interests of the Military Services and is not clearly consistent with the interests of national security.”
There are three exceptions to the rule.
First, transgender military recruits may be granted a waiver on a “case-by-case basis, provided there is a compelling Government interest in accessing the applicant that directly supports warfighting capabilities,” according to the policy sheet.
Second, current transgender service members can also apply for the same kind of waiver — if they demonstrate “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 “that he or she has never attempted to transition to any sex other than their sex.”
Third, college student members of the Senior Reserve Officers’ Training Corps (ROTC) can continue to attend military training courses “that are open to all students at the college or university concerned.”
Reyes, for her part, acknowledged the submission of the policy documents — but did not cabin her questions in direct relation to the new rules. The first five questions have to do with money.
From the minute order, at length, Reyes requested information including:
1. The total amount of Department of Defense (DoD) spending per year from 2015 to 2024, and the total overall for that time period.
2. The total amount of DoD spending per year from 2015 to 2024 on psychotherapy for all service members, and the total overall for that time period.
3. The total amount of DoD spending per year from 2015 to 2024 on surgical care for all service members, and the total overall for that time period.
4. The total amount of DoD spending per year from 2015 to 2024 on elective surgical care for all service members, and the total overall for that time period.
5. If publicly available links exist, links to the line-item budget for DoD spending for each year between 2015 and 2024.
The judge did, however, ask two questions directly related to the policy and the impact it will have on the plaintiffs in the case.
Again, the minute order:
6. Identification of any “mental health constraint,” other than gender dysphoria, that DoD has previously found to be inconsistent with “honesty, humility, and integrity.”
7. For each Plaintiff, whether implementation of the Action Memo would require him or her to be separated from the Armed Forces.
Finally, the court also requested a headcount of the “most recent estimate” the government has regarding “the number of transgender individuals currently serving in the Armed Forces.”
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The judge also gave the DOJ a bit of leeway.
“If Defendants do not have ready access to ‘spending’ amounts, they can provide the budgeted amounts,” the court’s atypically lengthy minute order concludes. “If Defendants have any questions about this order, they should contact Chambers with Plaintiffs’ counsel today, February 27, 2025, to have them addressed.”
Reyes is anticipating substantial legal argumentation before she dispenses with the plaintiffs’ motion for a preliminary injunction.
The transgender service members have a new motion filing deadline of March 5; the government will have until March 12 to file its motion in opposition. The parties are currently slated to slug it out again during another hearing on March 13.
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