Justice Department Asks Supreme Court to Review Transgender Military Ban

On Friday, August 28, 2026, U.S. Solicitor General D. John Sauer asked the Supreme Court to review a federal appeals court ruling that barred the government from enforcing the Pentagon’s transgender service ban against the service members who challenged it. The justices have not agreed to hear the case.

The filing is a petition for a writ of certiorari — a request that the Supreme Court take the case, not a decision on it. It arrives in a dispute that has moved between district courts, two federal appeals courts and the Supreme Court’s emergency docket since early 2025, and it sits within a longer arc of litigation over military service that runs through modern transgender history and education. The policy itself remains in effect while the case proceeds.

What did the Justice Department actually file?

The government filed a petition asking the Supreme Court to review a June 2026 decision of the U.S. Court of Appeals for the District of Columbia Circuit.

According to SCOTUS blog’s account of the filing, Sauer called the D.C. Circuit’s decision “gravely erroneous.” If it were allowed to stand, he told the justices, the ruling “would represent an ‘unprecedented intervention into military affairs,'” contrary to Supreme Court precedents requiring “deference to the political branches’ military judgments.”

Sauer framed the question presented as “an issue of exceptional and recurring importance” — specifically, “the authority of the federal government to determine who may serve in the Nation’s armed forces.” He wrote that “the military has determined” the policy “is necessary to maintain its ‘rigorous standards’ and ‘deliver a ready, deployable force.'”

The case is Talbott v. United States. The challengers’ response to the petition is due in roughly one month, after which the justices will consider whether to grant review.

What is the policy at the center of the case?

The policy is a Defense Department directive that generally disqualifies people who have gender dysphoria, or who have undergone medical interventions to treat it, from military service.

It originates in an executive order President Donald Trump signed shortly after his second inauguration in January 2025, titled “Prioritizing Military Excellence and Readiness,” which directed Secretary of Defense Pete Hegseth to implement a ban on “individuals with gender dysphoria.” The Department of Defense issued the implementing guidance on February 26, 2025.

In that guidance, the department wrote that “the medical, surgical, and mental health constraints on individuals who have a current diagnosis or history of, or exhibit symptoms consistent with, gender dysphoria are incompatible with the high mental and physical standards necessary for military service.”

Terminology note: gender dysphoria is a clinical diagnosis, not a synonym for being transgender, and the distinction is doing real work in this litigation — the government’s central legal argument depends on it. Readers new to the vocabulary can start with the terminology guide in the Reference Library.

How did the case reach the D.C. Circuit?

A group of transgender people who were serving, or who wanted to serve, sued in federal court in Washington, D.C., and won an early order blocking the policy.

The challengers argued that the policy violates their constitutional right to fair treatment by the government, contending it rests on “animosity toward transgender people” because they are transgender and serves no real government purpose.

On March 18, 2025, U.S. District Judge Ana Reyes issued an order temporarily prohibiting the administration from implementing the ban. She wrote that the policy is “soaked in animus” and serves no legitimate government interest: “Its language is unabashedly demeaning, its policy stigmatizes transgender persons as inherently unfit, and its conclusions bear no relation to fact.”

The administration appealed. The D.C. Circuit issued an administrative stay — a procedural pause holding Reyes’s order in abeyance while that court considered the dispute. Separately, in May 2025, the Supreme Court temporarily froze an order from a different challenge filed in Washington state, Shilling v. Trump, which had blocked the policy nationwide. That case is still pending in the U.S. Court of Appeals for the Ninth Circuit. This site covered the effect of that emergency order in Supreme Court Lets Transgender Military Ban Take Effect.

What did the D.C. Circuit decide on June 1, 2026?

A divided three-judge panel upheld part of Judge Reyes’s order, holding that the government could not enforce the ban against challengers already serving in the military.

Writing for the panel, Judge Robert Wilkins found “direct evidence” that the policy was motivated by animosity toward transgender people, describing its “foundational premises” as “animus-filled.” He pointed to the premise that, as he characterized it, “persons with a ‘false gender identity’ are unfit for the military, and persons with a history of gender dysphoria are also unfit because they lack ‘honesty, humility, … and integrity.'”

The scope of that ruling matters. It protected the named challengers who were already in uniform. It did not invalidate the policy nationwide, and it did not resolve the constitutional question for everyone. Reporting on the disagreement between the government’s success at the Supreme Court and its mixed record in the lower courts is collected in Even as It Wins at the High Court, the Administration Loses Some Lower-Court Fights.

What legal standard is in dispute?

The petition’s core argument is that the lower court applied the wrong level of constitutional scrutiny.

Sauer contended that the D.C. Circuit wrongly applied heightened scrutiny, a demanding standard courts use for certain classifications. He argued that rational basis review — a far more deferential standard — should apply instead, because in his framing the policy does not discriminate against transgender people but rather “classifi[es] based on a medical condition (gender dysphoria).”

Under rational basis review, he wrote, the government need only show “‘plausible reasons'” for its action, and here it has “undisputedly legitimate interests in maintaining military readiness, cohesion, and good order and discipline, as well as in managing the military’s costs.”

The full text of the government’s argument appears in SCOTUSblog’s report on Amy Howe’s certiorari petition, which links the petition itself and the underlying D.C. Circuit opinion. The standard governing classifications touching gender identity has been central to several recent cases, and the Reference Library’s research section gathers background on how courts have approached the question.

What happens next, and what remains undecided?

Nothing is decided yet: the Supreme Court has not agreed to hear the case, and filing a petition is not a ruling.

The challengers’ response is due in approximately one month. After briefing, the justices will decide whether to grant certiorari. Granting review would set the case for argument and an eventual merits decision; denying it would leave the D.C. Circuit’s ruling in place as to those challengers without settling the question nationally. The parallel Shilling litigation remains pending in the Ninth Circuit, and a split between those two circuits would itself be a reason the Supreme Court might take up the issue.

For readers tracking the broader documentation and identity questions running alongside the service dispute, related coverage includes the passport gender-marker litigation, and the Reference Library’s frequently asked questions answer general background questions.

Frequently asked questions

Did the Supreme Court rule on the transgender military ban?

No. On August 28, 2026, the Justice Department filed a petition asking the Supreme Court to review a D.C. Circuit decision. A petition asks the Court to take the case. The justices have not granted review and have not ruled on whether the policy is constitutional.

Is the transgender military ban currently in effect?

Yes. The Defense Department policy has been operating since the Supreme Court’s May 2025 order temporarily froze a nationwide block issued in the separate Shilling case. The June 2026 D.C. Circuit ruling barred enforcement against the specific plaintiffs in the Talbott case who were already serving, not against everyone.

What is Talbott v. United States?

It is the case brought in federal court in Washington, D.C., by transgender people who were serving in the military or sought to serve. It produced Judge Ana Reyes’s March 2025 order blocking the policy and the June 1, 2026 D.C. Circuit decision that the Justice Department is now asking the Supreme Court to review.

What is the difference between heightened scrutiny and rational basis review?

They are two levels of constitutional review. Heightened scrutiny requires the government to justify a classification with a substantial reason. Rational basis review asks only whether there is a plausible legitimate reason, and governments almost always prevail under it. The government’s petition argues rational basis should apply here.

Why does the government say the policy is not about transgender people?

Solicitor General D. John Sauer argues the policy classifies based on a medical condition, gender dysphoria, rather than on transgender status. Judge Robert Wilkins of the D.C. Circuit rejected that framing, writing that there was “direct evidence” the policy was motivated by animosity toward transgender people.

What is the Shilling case, and how is it different?

Shilling v. Trump is a separate challenge filed in Washington state. A district court there blocked the policy nationwide; the Supreme Court temporarily froze that order in May 2025. The case is still pending in the Ninth Circuit, meaning two federal appeals courts are handling the same policy.

When will the Supreme Court decide whether to take the case?

The challengers’ response to the petition is due about a month after the August 28, 2026 filing. The justices typically consider a petition at a conference after briefing is complete. No date for that consideration has been announced.

This article reports on court filings and judicial decisions. It is not legal advice. Service members and applicants with questions about their own circumstances should consult a qualified attorney.