Caught between hostile judges on both coasts, the Pentagon military transgender policy remains inactive after the Court of Appeals for the Ninth Circuit declined on Friday to halt a district judge’s nationwide preliminary injunction. In a brief order (Shilling v. Trump), a three-judge panel (a Biden appointee, an Obama appointee, and a Clinton appointee on senior status) justified their ruling with a single sentence: “Appellants have not demonstrated that they will suffer irreparable harm absent a stay.”

In the February 26, 2025 memorandum, “Additional Guidance on Prioritizing Military Excellence and Readiness,” the Department of Defense (DOD) concluded that the military’s “high standards for service member readiness, lethality, cohesion, honesty, humility, uniformity, and integrity” were “inconsistent with the medical, surgical, and mental health constraints on individuals with gender dysphoria.” It gave 30 days for the military branches to begin separation.

Before that time expired, on March 18 federal Judge Ana Reyes, a Biden appointee to the D.C. District Court, blocked implementation of the policy in a long-winded, controversial screed (Talbott v. Trump) with barely a pretense of neutrality. Reyes’s order took effect on March 21, but on appeal, the U.S. Court of Appeals for the D.C. Circuit overruled her, ordering (Talbott v. U.S.A.) on March 27 that her “preliminary injunction be administratively stayed pending further order of the court.”

Litigation in this case continues, and both the D.C. District Court and the D.C. Circuit Court will likely issue further rulings. However, at least for several news cycles, this case was soon overtaken by events.

That very same day (March 27), district Judge Benjamin Settle, a Bush appointee in the Western District of Washington State, issued another nationwide preliminary injunction against the Pentagon’s transgender military policy. Settle traced his decision through the Supreme Court’s reasoning in Bostock that redefined sex discrimination (2020), as well as the Ninth Circuit’s recognition of transgender status as a suspect class, warranting a higher level of review. But, in the end, he wrote that his “preliminary injunction rests exclusively on the government’s failure to meet their burden under any level of review.”

For good measure, the judge also decided the policy violated the First Amendment by imposing “a restriction on gender expression,” the 14th Amendment Due Process Clause, and “equitable estoppel.”

The Trump administration appealed this second adverse ruling to the Ninth Circuit. But on Wednesday, a three-judge panel wrote that the government had not proven its case. Needless to say, Western courts have not been impressed by the persuasive skills of the government’s lawyers.

Yet it may be that these hostile rulings were foreordained because of the predominantly liberal jurisdiction in which the challenge was raised. To hear the courts describe it, the Trump administration provided no valid reasons for its transgender military policy but sheer animus. But the Trump administration did provide reasons, including studies to back them up. The problem was that the district judge did not like their evidence and nitpicked it apart — a strange way to show the DOD its due deference on matters of national defense.

In an ideal world, of course, the outcome of a judicial ruling should not depend on the political prejudices of the judge, but only on what the law says. But then, in an ideal world, judicial review and systems of appeal would perish from lack of use.

An interesting detail in the first case brought against the transgender military policy, Talbott v. U.S.A., illustrates the significance of placing a case before the right judge. According to court filings, the “arguing attorney” on the case for the group of servicemembers challenging the policy is Shannon Minter, a trans-identifying biological female who works as legal director for the National Center for Lesbian Rights.

In 2023, a panel of federal judges found that Minter and 10 other left-wing lawyers had engaged in improper “judge shopping,” when, in challenging an Alabama law protecting minors from gender transition procedures, they “purposefully attempted to circumvent the random case assignment procedures of the United States District Courts,” “to direct their cases to a judge they considered favorable.”

Such behavior is effectively a challenge to the court’s authority, and it places these lawyers in considerable personal jeopardy. Yet they were willing to run the risk because they believed that drawing the right judge was so important to the outcome of their case.

The wide variance among federal judges is one reason why Congress is considering legislation to limit the power of district court judges by limiting their ability to impose nationwide injunctions.

Yet the Alabama case also illustrates how a case’s initial judge assignment does not always determine the final outcome. There, left-wing activists won a preliminary injunction from the very Trump-appointed judge they feared. But his decision ultimately did not matter because the appellate court reversed the verdict.

The Trump administration is sure to appeal the defeat of its transgender military policy to the Supreme Court, which might consider it immediately or — perhaps more likely — after a trial, if the preliminary injunction is made permanent. What will ultimately determine the issue is not what a district judge in Tacoma, Wash. wrote, nor what the Ninth Circuit decided, but what the Supreme Court rules. And the Supreme Court has often proven willing to overturn the Ninth Circuit; in 2021, it reversed 15 out of 16 cases originating in that circuit.

Indeed, the Trump administration likely expected a lengthy court battle, like the one that stymied the military transgender policy during Trump’s first term. This is one reason why the DOD implemented the policy earlier in Trump’s term, giving the administration nearly four years to defend its policy in court, then enact it before another administration takes over.

The commonsense policy is based in the reality that the two human sexes are distinct and immutable and in the calculation that it does not help our military’s prowess for it to pretend otherwise. Since the policy is such a good one, let us hope that four years (minus litigation) is enough time for the policy to actually have its intended effect.