On January 27, 2025, President Donald Trump issued an executive order directing the Secretary of Defense to modify existing guidance to indicate that military service is incompatible with “the medical, surgical, and mental health constraints on individuals with gender dysphoria” or “shifting pronoun usage or use of pronouns that inaccurately reflect an individual’s sex.” Observing that the order effectively seeks to ban trans people from the armed forces, service members have already filed two lawsuits, Talbott v. Trump and Shilling v. Trump. There were previous lawsuits against a similar ban during the first Trump administration.
[time-brightcove not-tgx=”true”]
Legal challenges to military policies excluding trans people from military service are not solely a 21st century phenomenon. Trans service members and veterans have sought remedies through the courts since the late 1970s. In these early cases, courts typically ruled on procedural issues or deferred to the military’s authority to set its own standards. Plaintiffs were largely unsuccessful, but the lawsuits themselves revealed significant contestation over the definition of sex.
In Von Hoffburg v. Alexander, the military homosexuality ban then in place barred a service member from having a romantic relationship with a trans veteran. In 1977, Marie von Hoffburg, a member of the Women’s Army Corps (WAC), was discharged for marrying a former WAC member who had begun transitioning to an identity as a man after leaving the Army. The judge who married the couple was not aware that one of the parties in the marriage was trans. Later, someone on the military installation recognized the husband. Questioning the validity of the marriage, the Army began an investigation into whether von Hoffburg had committed fraud by applying for a housing allowance for married servicemembers. Shortly thereafter, the allowance was cut off, von Hoffburg was arrested, and the Army held a discharge board hearing to consider whether she should be separated from the service.
Read More: Transgender Service Members Left in Uncertainty After Trump’s Military Ban
Marie von Hoffburg’s sex was not in question. But the Army took the position that despite her husband’s stated identity as a man, he was truly a woman. Because Marie was also a woman, she was therefore in a homosexual marriage and could be discharged for having “homosexual tendencies.” Since the husband was a veteran, the Army had his medical records, which they introduced in court to try to prove that he was a woman. The discharge board ultimately concluded that sex was both psychological and biological, and although they agreed that Marie’s husband was psychologically male, they decided that he was biologically female. They also interpreted Army separation regulations as defining sex biologically, rather than psychologically. Under this logic, Marie von Hoffburg was in a homosexual marriage and was unfit for service. She was honorably discharged from the Army.
Von Hoffburg fought the board’s decision in court, but the district and appellate courts held that she had not exhausted all her administrative remedies. Thus the courts did not actually rule on the question of whether Von Hoffburg’s marriage revealed “homosexual tendencies” or how sex ought to determined. But the discharge board’s decision had revealed a central tension: despite the Army’s deep investment in sex binaries, even the board itself thought sex could be more than one thing, simultaneously biological and psychological.
Von Hoffburg’s case was not so much about challenging the military regulations themselves than about arguing that she had not violated them. Soon, other service members would challenge the disqualification standards themselves.
For instance, the case of Doe v. Alexander concerned an Air Force veteran who had gender confirmation surgery after leaving the service and subsequently attempted in 1976 to become an Army Reserve officer. The Army Reserve rejected her application, considering her medically disqualified under Army Regulation 40-501, which listed “change of sex” as a genital abnormality.
Similar to the claims in Trump’s executive order, the Army asserted that the medical needs of transgender people were onerous or impossible for the Army to meet. The Army argued that it would have to provide psychological and endocrinological treatment, that transgender people would potentially lose duty time, and that they might not be able to be deployed worldwide. Implying that inclusion of trans personnel would be prohibitively expensive or logistically complicated, these claims echoed earlier arguments about the medical needs and costs of women in the military.
The court dismissed the case for a number of reasons but devoted the bulk of its decision to explaining that the Army’s medical fitness regulation was not reviewable by the court. Following a judicial doctrine established by the 1971 case Mindes v. Seaman, courts typically defer to the judgment of military authorities in determining how the armed forces should function. The court ruled that the plaintiff, and indeed no one, had a constitutional right to serve in the military, and that she did not belong to a suspect class that would warrant a higher standard of judicial review. Therefore, the Army’s decision not to commission Doe would stand.
Doe v. Alexander involved a trans person who wanted to join the military, but what about when a servicemember started to transition while still in the service? In Leyland v. Orr, the plaintiff, Jane Leyland, was an Air Force Reservist who was honorably discharged in 1982 for physical unfitness and psychological unsuitability after having gender confirmation surgery.
Leyland sued to reverse the discharge. Air Force Regulation 160-43, like the Army regulation discussed in Doe, required medical evaluation for people who had “major abnormalities and defects of the genitalia such as change of sex.” The Air Force maintained that having undergone such a surgery would potentially limit the service member’s performance, including the possibility of worldwide deployment. An Air Force urologist compared the potential hazard to “placing an individual with known coronary artery disease in a remote location without readily available coronary care.” However, Leyland contended that unlike coronary artery disease, having had gender confirmation surgery was not a condition with inherently life-threatening risks. Instead, she felt that her abilities should be individually assessed.
Read More: The Implications of Trump’s Executive Order on Sex
But both the district court and the appellate court ruled against Leyland. The Ninth Circuit opinion relied on the urologist’s claim that gender confirmation surgery was necessarily limiting. The Air Force only had to prove that Leyland had had surgery, not that she personally was restricted from performing her duties as a result. Any person who had had gender confirmation surgery, therefore, was automatically considered to have a “medical defect” which would disqualify them from service regardless of their other abilities, skills, or medical needs. The court did not take up the question of psychological unsuitability because it had ruled on the question of physical fitness.
By the late 1980s, courts had generally determined that medical disqualifications of trans service members were not reviewable. The argument that people who had had gender confirmation surgery, were undergoing hormone therapy, or were involved in psychological treatment might not be provided adequate medical care in all the places they could be deployed became the basis of persistent claims that enlisting trans personnel would be cost-prohibitive.
In 2016, after activists lobbied the Obama administration to change policies barring trans military service and a RAND corporation report concluded that the financial costs of allowing trans service members to serve openly would be low, the Department of Defense announced that the ban would be eliminated. These efforts were later reversed by former President Trump, and then reinstated by former President Biden.
The most recent executive order revives the earlier logic about military readiness and costs. Additionally, it goes even further by impugning a transgender service member’s “commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life” and characterizes “a man’s assertion that he is a woman” as a “falsehood.” More than demanding deference to military efficiency or administrative procedure, the current order attempts to assert authority over truth itself. Yet, the history of contention over the definition of sex suggests that perhaps this truth is not so self-evident, nor accurate, after all.
Natalie Shibley is a Henry A. Kissinger Visiting Scholars Associate Research Scholar at the Yale Jackson School of Global Affairs and co-editor of Ordering the Human: The Global Spread of Racial Science (Columbia University Press, 2024).
Made by History takes readers beyond the headlines with articles written and edited by professional historians. Learn more about Made by History at TIME here. Opinions expressed do not necessarily reflect the views of TIME editors.
