As Donald Trump assumes office for a second time, activists who battled his first administration over his sudden and chaotic ban on trans people serving in the military are poised to do it again.
We are “preparing for the worst, and then we’ll fight for the best,” Cmdr. Emily “Hawking” Shilling, an out transgender, active-duty Navy pilot and president of SPARTA, a nonprofit organization promoting “an inclusive military environment,” told LGBTQ Nation.
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“What the worst looks like,” said Shilling, who made clear her views don’t represent the Navy’s, “is a Day One executive order that tries to kick everybody out of the military who is transgender.”
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While he didn’t do it yesterday, Trump may prove Shilling’s fears right soon.
He banned transgender people from serving in the military during his first administration, sparking multiple lawsuits. While the Supreme Court ultimately allowed the ban to go into effect while the cases were heard, no court actually ruled on the substance of the ban before President Joe Biden got into office and nixed it, rendering the lawsuits moot.
Legal developments since then have made trans rights advocates more confident in their chances of winning the legal battle.
“There’s good, strong, solid law from those cases that will be important in any new cases that are brought, and there’s been some important precedent established after those cases that will be important, as well,” GLAD Senior Director of Transgender and Queer Rights and trans attorney Jennifer Levi told LGBTQ Nation.
Several organizations gathered on South Congress for a rally to oppose Trump’s agenda on Inauguration Day, Monday, January 20, 2025, in Austin. | Ricardo B. Brazziell/American-Statesman / USA TODAY NETWORK
Trump has been obsessed with kicking trans people out of the military for years
“With the stroke of my pen on Day One, we’re going to stop the transgender lunacy,” Trump told an audience of MAGA faithful in Phoenix in December, including a pledge to “get transgender out of the military.”
It’s a return to Trump’s first ban issued six months into his first term, a unilateral decision that shocked even his own generals and secretary of defense.
What followed was a tortured reverse-engineering effort by Pentagon officials to justify it, after President Barack Obama lifted the longtime prohibition on trans service members just a year earlier.
“To join the military, everyone has to meet the exact same standards,” Shannon Minter, a trans attorney for the National Center for Lesbian Rights (NCLR), told LGBTQ Nation. “It’s all that transgender people were ever asking for, just simply to be permitted to attempt to meet the same standards as everyone else is meeting. And if they do, then they’re in, and if they don’t, then they’re out.”
NCLR and GLAD filed the first of four lawsuits to challenge the ban in August 2017. Two months later, the U.S. District Court for the District of Columbia issued an injunction that put a temporary halt to the discriminatory policy.
As the cases made their way through the courts, Secretary Mattis issued a plan to split Trump’s trans ban baby in two, hoping to survive a constitutional challenge. Trans service members who’d been issued a gender dysphoria diagnosis before a ban took effect could continue to serve, but active trans members who hadn’t would be out.
That version of Trump’s trans ban took effect in April 2019, after the administration “leapfrogged” lower courts to ask the Supreme Court to grant injunctive relief to enforce it. The conservative majority voted 5-4 in favor of the administration.
But the ruling was only a procedural victory in deference to the executive branch. By the time Biden overturned Trump’s ban in 2021, the high court had yet to hear any of the cases and rule on whether the ban was constitutional.
That gives hope to trans advocates, who say the evidence arguing against a ban has only grown more persuasive since their original cases were filed eight years ago.
Trans legal advocates are ready for the fight
While Trump’s allies have made much of the idea that he’s better prepared in a second term to enact his agenda, the same can said of the lawyers who shepherded those first cases through the courts, who now come armed with their most effective data and arguments in a Trump trans ban Round Two.
“We’ll challenge it pretty much right out of the gate,” said Minter, who’s been in contact with over a hundred potential plaintiffs in anticipation of a renewed ban.
Jul 27, 2023; Washington, DC; Shannon Minter testifies at a House Judiciary Subcommittee on Constitution and Limited Government hearing on gender affirming care | Jasper Colt-USA TODAY
The legal landscape for transgender people has changed significantly since 2017. According to GLAD’s Levi, the new precedent includes the 2020 Bostock decision, in which the Supreme Court said that discrimination on the basis of transgender status is a form of sex discrimination.
“That will have important ramifications for the equal protection challenges that I would anticipate being brought against a ban on military service,” she said.
Trans people have also been serving openly in the military for several years now, making the case for a ban more difficult on a policy level.
“I think among those lessons was how important it was to have the voices of military leadership convey the harms to national security from baseless shifts in personnel policies,” Levi said. “It was really the voices of the senior leaders of the military that I think was very compelling in conveying to courts how harmful it is excluding people who meet the qualifications of service.”
Minter, Levi’s former co-counsel from Doe v. Trump, agreed.
“I think the reason that we got so much support from military officials at such a very high level was not because they were particularly pro-transgender,” Minter said. “It wasn’t that. It was that they were so distressed by that manner of making military policy.”
“The key lesson — just to understand how the military ordinarily works — is that to a really extraordinary degree, it’s based on merit, on objective standards and qualifications,” he continued. “That’s all that matters.”
Further bolstering a future suit, Minter said, is real-world data about trans military service.
“In contrast to when we were challenging the ban in 2017, we now have four years of experience of transgender people serving,” he said. “There were trans people who were in the military, but they were in a kind of limbo. They had never been officially permitted to serve. Now, there’s four years worth of officially permitted service and data that goes along with that.”
Transgender people are already a part of the military
Among those trans individuals currently serving in the military is Jake, a former plaintiff from one of the lawsuits challenging Trump’s first trans military ban. (He asked to use a pseudonym and not identify his branch of service for fear of reprisal by the Trump administration.)
Jake told LGBTQ Nation that his experience in the military has been overwhelmingly positive since he joined six months ago.
“In basic training and officer school, I was very open about my status as a transgender individual, about my transition itself, and everybody I encountered there was immensely supportive,” he said.
Asked if he had a memorable coming out story in the military, Jake recalled a group inspection from “a relatively high-ranking individual.”
“He asked me why I joined the service, and I said, ‘I’m here because I want to prove that transgender individuals like myself not only are capable of serving, but we are capable of excelling in military service.’ And once our inspection was over, my colleagues came to me and they said, “We had no idea. Is that true? Did you really mean that? Are you really transgender?’ And I said, ‘Yeah,’ and I had a good conversation. This was something that happened in front of, I’d say, about 65 other young men.”
Transgender service members, like the military as a whole, are “a snapshot of America,” said SPARTA’s Shilling, who narrowly avoided separation from the Navy before Biden reversed Trump’s ban. “We have people of all different persuasions, all different beliefs, all different opinions and all different backgrounds in life. They just happen to have one additional thing, which is they end up being transgender.”
Shilling said she has her fellow trans colleagues’ backs as a second ban looms.
“I’ve got a bunch of people who are scared,” she said. “I’ve got a bunch of people who, the military is their family, and they don’t know if their family is about to kick them to the curb. I’m going to take care of them.”
“I’m a freaking fighter pilot,” she added. “Of course, I’m going to be fangs out.”
A military mired in “wokeness,” said Jake, is “definitely something, in my experience, that is being perpetuated by outsiders and not the actual military experience today.” A culture war is the last thing on his fellow service members’ minds, he said.
“At the end of the day, we all just kind of come together, work as a team, embrace the camaraderie, embrace the suck, and as long as you’re contributing to the team, nobody cares what your background is, where you’re coming from, what your political stance is.”
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