Authored by Elaine Donnelly via RealClearPolitics,

Former Majority Leader Senator Chuck Schumer recently admitted that he is responsible for confirming 235 “progressive” judges who are “ruling against Trump time after time.”  Activist judges are Schumer’s Plan B.

Article I, Section 8, of the U.S. Constitution empowers Congress to make policy for the military. But as things stand now, unelected, unaccountable federal judges are overruling President Trump’s Executive Orders and arrogating to themselves power to run the armed forces.

Unless the 119th Congress intervenes, President Joe Biden’s radical policies regarding transgender people in the military will continue indefinitely.

Self-Appointed “Supreme Judicial Commanders” Take Charge

President Donald Trump’s January 27 Executive Order #14183, titled “Prioritizing Military Excellence and Readiness,” is one of several calling for an undistracted focus on military warrior ethos, not “political agendas or other ideologies harmful to unit cohesion.” 

Executive #14168 (January 20) defined biological reality – differentiating “sex” from subjective “gender identity” and proclaiming the existence of two immutable sexes, male and female. This EO also prohibited male access to women’s sleeping, changing, or bathing facilities and discontinued use of inaccurate invented pronouns and bureaucratic markers that reflect subjective gender identity instead of biological sex.

The reality-based principles stated above, applied to DoD policies regarding persons having a history of gender dysphoria or identifying as transgender, logically justified orders to revoke President Joe Biden’s Executive Orders and Directives accommodating persons with gender dysphoria or identifying as transgender in the military.

Trump’s EOs and directives restored gender dysphoria to the DoD list of physical and psychological conditions that affect eligibility to serve, and ended Biden-era mandates and subsidies for irreversible treatments and surgeries for “transitioning” purposes that attempt to change sex.

Trump’s Executive Orders also mandated respectful treatment for persons separating with generous benefits due to gender dysphoria, and protected vulnerable children from chemical and surgical mutilation based on “junk science” recommended by discredited “experts” like the World Professional Association for Transgender Health (WPATH).

Lawsuits Filed to Halt Trump Gender Dysphoria/Transgender Policies

A lawsuit titled Nicolas Talbott v. U.S., plus two more, (Shilling v. Trump in Seattle and Ireland v. Hegseth in New Jersey), are challenging the directives and premises behind President Trump’s Executive Order regarding persons diagnosed with gender dysphoria or identifying as transgender.

In the Washington, DC Talbott case, District Judge Ana C. Reyes issued a nationwide preliminary injunction that blocked implementation of Trump’s order.  Judge Reyes, a longtime Democratic/left-wing activist described as the first gay Latina U.S. District Judge, displayed extreme bias in her handling of this case.  Her behavior toward the Justice Department attorney defending the Trump policy was so egregiously hostile, the office of the Attorney General filed a formal complaint. 

Not surprisingly, Judge Reyes’ March 18 opinion in the Talbott case lashed out at Trump’s recognition of only two sexes and concerns about male/female sexual privacy. Her strident rhetoric could be the start of a Plan B campaign of judicial lawfare against President Trump and his efforts to restore sound priorities in our military.

A similar national injunction in the Shilling case, a temporary restraining order in the Ireland case, plus additional adverse rulings expected from other activist judges, could make Biden’s extreme transgender policies permanent while various lawsuits wind their way to an unpredictable Supreme Court.     

Absent Congress Action, Biden Policies Likely to Become Permanent

The 78-page Talbott opinion exploited weaknesses in the government’s case, but Judge Reyes’ intemperate language and obvious bias showed why federal judges should not be making policy for our military.

Among other things, Judge Reyes disregarded Defense Department data on the costs and consequences of Obama-era treatments for gender dysphoria. In 2018, a DoD panel of experts reported to then-Defense Secretary James Mattis that 994 active-duty service members diagnosed with gender dysphoria accounted for 30,000 mental health visits – a 300% increase per capita. 

The Mattis panel’s report also cited long-term studies highlighting the operational and human costs of gender dysphoria, including disproportionately high risks of suicide. 

Why has this data not been updated? Perhaps because Biden’s policy prohibited discussion of problems with the transgender policy without approval from high-level officials.  Now Biden-era officials are praising their own policies before Congress and the courts.

We don’t know whether the Justice Department, representing the DoD, mentioned several empirical studies that have questioned lucrative treatments for gender dysphoria.  A 2025 University of Texas study, for example, reported elevated risks of depression and suicide following “gender-affirming surgery.” 

The Reyes ruling does not mention WPATH, a prominent organization advocating for irreversible puberty blockers and mutilating surgeries for minor children, which has been charged with medical ethics violations.  Nor does the record show consideration of the 2024 Cass Review in England, which questioned the benefits of “sex change” treatments for children.

Even if the Justice Department had presented many recent critical studies in court, the judge probably would have still described Trump’s policy (twice) as “soaked in animus and dripping with pretext.”

Judge Reyes’ over-the-top opinion showed zero concern about operational complications, medical ethics, and overwhelming public opinion against men entering women’s private facilities and athletic teams.  Activist court injunctions that usurp power from Congress and the Executive Branch are about reality-denying transgender ideology, not military effectiveness.

Congress Should Enact Common Sense in Defense Bill (NDAA) for 2026

Years could pass before the issue reaches the Supreme Court, which may or may not hand down a decision favoring the Trump policy. This puts the ball squarely in Congress’ court.

Without principled congressional action, accomplished in a way that can withstand judicial scrutiny, members could be held accountable for not delivering on promises made during the 2024 elections.

It would help to inscribe four essential principles in the National Defense Authorization Act (NDAA) for 2026: Merit as the exclusive basis for personnel actions, a prohibition on non-merit factors such as race in personnel actions, clear definitions of key terms such as “merit,’ “male,” and “female,” and narrow exceptions for operational reasons.

Congress also should dismantle ideological power bases in the Pentagon.  Non-discriminatory practices and common-sense, reality-based measures would support President Trump’s efforts to end woke policies in the military, while reaffirming purposes of the military that some federal judges refuse to respect.

Elaine Donnelly is President of the Center for Military Readiness (CMR), an independent public policy organization founded in 1993, which reports on and analyzes military/social issues. More information is available at www.cmrlink.org.