The three judges, comprising two Trump appointees and one former President Barack Obama appointee, are considering whether to pause a lower court’s decision to block the administration from implementing the ban.

Judge Cornelia Pillard, the Obama appointee, appeared the most skeptical of Manion’s arguments.

“So, your argument that this is not a ban on transgender service is that you can serve as a transgender person as long as you don’t serve as a transgender person,” Pillard said. “Is that right?”

Manion responded that the policy targets “a subset of the category” of transgender people: those who have gender dysphoria, “which is marked by that significant clinical distress and the impairment of functioning that applies in social, occupational, and other important areas.”

Pillard and Manion had a lengthy dialogue, during which the judge scrutinized what she said was a lack of data to support the policy and questioned whether the government should produce more evidence that people with gender dysphoria negatively affect the military. She also observed that under former Department of Defense Secretary Lloyd Austin, the Pentagon posed no restrictions on transgender service members and no data existed to show that the policy had an adverse effect on the military.

“I don’t believe there’s a constitutional requirement for the government” to produce that level of evidence, Manion replied.

“But there is a constitutional requirement of non-arbitrary decision-making,” Pillard responded.

Judge Neomi Rao asked if the lower court judge, Judge Ana Reyes, erred by finding that Trump’s and Hegseth’s policies showed animus toward all transgender people.

Manion did not deny that the policy involved animus, but he said the government felt it had enough supporting evidence from the first Trump administration, in the form of “months of study,” expert review, and interviews to make up for it.

Manion said that if the appellate court did not pause Reyes’s order, Trump and Hegseth would suffer irreparable harm by remaining unable to enforce a crucial military policy.

“This is a core area of presidential power,” Manion said. “This is something where the military has determined that this policy will increase the readiness and effectiveness of the military, and in fact, that not being able to enact it would be harmful to the military.”

The lawsuit was brought by more than two dozen service members, including decorated active-duty military members who identify as transgender and who say they are unjustly being discriminated against. Shannon Minter, the attorney arguing on behalf of the plaintiffs, said the transgender troops will face immediate separation from the military after years of excelling at their jobs if the courts side with Trump. Minter said the discrimination was “striking” and had no concrete basis.

JUDGE BLOCKS TRUMP’S ORDER BARRING TRANSGENDER TROOPS FROM SERVING IN MILITARY

“We just don’t see ordinarily, in this day and age, the government openly, just with complete transparency, expressing animosity towards a group of people and openly relying on that as a justification for a policy,” Minter said. “And this is that rare case where we do have that.”

The lawsuit is one of at least three challenging the transgender service members’ policy. The Ninth Circuit Court of Appeals recently denied the Trump administration’s request to lift a separate injunction on the policy. Manion informed the District of Columbia panel of judges that the DOJ would soon seek relief from the Supreme Court in that case.