The U.S. Supreme Court building. (Photo by Ariana Figueroa/States Newsroom)
WASHINGTON — The Trump administration asked the U.S. Supreme Court Thursday to block a lower court’s decision allowing transgender individuals to continue enlisting and serving in the armed forces.
Administration officials are seeking a stay of a broad district court ruling in late March that applied to all troops rather than only to those who challenged President Donald Trump’s executive order in court. The U.S. Appeals Court for the 9th Circuit upheld the lower court’s ruling Friday.
The government contends its policy does not discriminate against an entire class of people, but rather finds a diagnosis or history of gender dysphoria to be disqualifying. Gender dysphoria is recognized by medical professionals as distress caused by an incongruence between a person’s gender identity and their sex at birth.
In its application to the Supreme Court Thursday afternoon, the Department of Justice argued it’s likely to succeed in the case because the newly adopted policy does not differ widely from those in place under former secretaries of defense.
“The policy was based in part on the findings of a panel of experts convened during the first Trump Administration, which found that service by individuals with gender dysphoria was contrary to ‘military effectiveness and lethality,’” wrote John Sauer, Trump’s solicitor general.
Sauer also argued the district court’s universal order violated the power of the president.
Trump issued an executive order on Jan. 27, asserting the “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.” Further, the order said that being transgender is “not consistent with the humility and selflessness required of a service member.”
Secretary of Defense Pete Hegseth issued the new policy a month later, reversing former President Joe Biden’s order allowing service members to transition and serve openly under their preferred gender identity.
Trump’s order immediately drew court challenges, including a separate case now in the U.S. Appeals Court for the District of Columbia.
A Department of Justice attorney arguing before the D.C. Circuit Tuesday alerted the judges that the administration would “imminently” appeal the 9th Circuit decision to the Supreme Court.
Lambda Legal and the Human Rights Foundation, who are representing plaintiffs in the 9th Circuit case, released a statement in response Tuesday asserting, “Transgender service members have been openly serving our country with honor and distinction for almost a decade and have met and are meeting every neutral service-based standard.”
“The U.S. Supreme Court should reject the invitation to stay the district court’s injunction so that they can impose their discriminatory ban while the litigation proceeds,” the statement said.
The administration’s emergency application to the high court Thursday is just the latest in the administration’s whack-a-mole battle against lower federal court rulings that have blocked White House actions, particularly on immigration.
The U.S Army Reserve says the suspension of a commander at Wisconsin's Fort McCoy isn't tied to an investigation of pictures of President Donald Trump and U.S. Secretary of Defense Pete Hegseth being tampered with.
Reading Time: 7minutesCol. Leslie Zyzda Martin has asked Gov. Tony Evers to investigate her 2021 firing after four investigations did not substantiate allegations against her. Evers declined, but hasn’t produced records indicating a legally required review was conducted. (Kenny Yoo for Wisconsin Watch)Click here to read highlights from the story
Col. Leslie Zyzda Martin, then commander of Volk Field, was fired in 2021 by now-interim Adjutant General David May despite a series of investigations into her conduct that did not substantiate allegations against her.
Zyzda Martin has petitioned Gov. Tony Evers to review her case under a Wisconsin military code provision. Evers declined the review, but did not provide documentation that any proceedings related to a review were conducted.
Military justice experts said Evers is required to review the case under state law, but a state legislative lawyer noted the law doesn’t provide recourse if the governor declines to do so.
Yet more than a year after making such a complaint, Zyzda Martin says she is still waiting for some kind of justice. The commander whom she has accused of unceremoniously firing her, Brig. Gen. David May, is still interim head of the Wisconsin National Guard and may be retiring soon. And his boss, Gov. Tony Evers, informed Zyzda Martin in August he’s declining further review, but didn’t provide records of any proceedings related to the particular review she requested.
Military legal experts who reviewed the provision in Article 138 of Wisconsin’s military justice code agreed it compels the Guard and the governor, as commander-in-chief, to review such complaints, especially because the complaint involves an adjutant general. Whoever reviews the complaint must also provide documentation of the proceedings of that review.
A lawyer who advises the Legislature agreed the law allows Zyzda Martin to appeal to the governor, but doesn’t appear to provide recourse if the governor declines to act.
Guard spokesperson Bridget Esser emphasized the state Department of Workforce Development Equal Rights Division determined in 2023 that the Guard did not discriminate against Zyzda Martin. That finding responded to a sex discrimination complaint Zyzda Martin filed in June 2022. She withdrew her appeal in January 2024, but continued to pursue the Article 138 complaint.
The Guard said while four investigations didn’t substantiate three complaints against Zyzda Martin, information gleaned from those investigations caused May to lose confidence in her ability to command. The Guard did not provide a detailed explanation for her firing when Wisconsin Watch asked, saying it was protecting Zyzda Martin’s privacy even after she signed a waiver for the Guard to release her personnel records to the news outlet.
Evers spokesperson Britt Cudaback said the Guard “has provided legitimate, non-discriminatory reasons” for demoting and firing Zyzda Martin.
“In order for a wrong to be remedied a wrong must be identified,” Cudaback said. “Based on a review of Zyzda Martin’s complaint, supporting documents, and investigatory files of the three inspector general complaints made against her, there is no indication of any wrongful action against her.”
After her firing in November 2021, Zyzda Martin worked for the South Carolina Guard, but the disciplinary letters May put in her military record from her time in Wisconsin prevented her from being promoted. Because of that, she retired in October, ending her 34-year military career.
“I still don’t know what I did wrong,” Zyzda Martin said. “I have no idea.”
Legal avenue for recourse
Last year, a Wisconsin Watch investigation highlighted Zyzda Martin’s case. It was notable because the Wisconsin National Guard has been plagued for years by allegations of sexual harassment and a culture that hasn’t supported women in uniform. Previous reporting on those allegations led to Evers firing former Adjutant General Donald Dunbar, but commanders who served under him, including May, have remained.
Zyzda Martin suspects her termination relates to how she handled a sexting case at Volk Field and other changes she made there, including updates to the airfield’s safety program after a technician died while changing light bulbs on a runway. An independent investigation into the death later found that Volk Field, at the time under May’s command, was not properly staffed and had “significant voids in safety program management, training, and compliance.”
Because of the broad discretion military commanders have, retribution can be swift for those who report wrongdoing. Service members have few avenues for recourse, but Wisconsin provides one legal remedy: the Article 138 complaint.
The law entitles “any member of the state military forces” who believes they’ve been wronged by a commanding officer and is refused redress to “complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made.”
According to the statute, which mirrors the one in the federal Uniform Code of Military Justice, the superior officer “shall examine the complaint and take proper measures for redressing the wrong complained of; and shall, as soon as possible, send to the adjutant general a true statement of that complaint, with the proceedings.”
Zyzda Martin filed an Article 138 complaint over her firing with Evers’ office in November 2023. She argues Evers is the proper person to review the complaint because, as commander-in-chief of the Guard, he oversees May. Zyzda Martin also already sought redress with May and Maj. Gen. Paul Knapp, making Evers next in the chain of command.
In January 2024 Evers’ chief legal counsel Mel Barnes said Evers was deferring a decision on whether to look into Zyzda Martin’s case to “allow for the completion of an inquiry by the Governor’s Office,” according to a letter Barnes sent to Zyzda Martin.
Eight months later, Evers’ office sent a letter saying it reviewed the record of her removal and was “declining to take further action on the complaint.”
But the office has produced no record of any correspondence or proceedings related to either an Article 138 review or the inquiry the governor’s office said it was undertaking.
The Guard confirmed there were no records of any proceedings related to any reviews or inquiries in a November email to Zyzda Martin. The Guard and Evers did not respond to Wisconsin Watch’s requests for records of any proceedings.
“If there was that inquiry, I should have documents showing that,” Zyzda Martin said. “The governor has the responsibility, law or not, to do the right thing and look into it.”
A right to a meaningful investigation
Though military legal experts said Wisconsin’s military justice code requires the Guard and the governor to review Article 138 complaints, there are no specifics in the statute of what the proceedings must look like.
“I don’t think that the resulting reporting has to be a seven-volume magnum opus,” said Eugene Fidell, who teaches military justice at Yale Law School and co-founded the National Institute of Military Justice. “But I think there has to be an effort to apply the mind and find the facts and explain what, if anything, the governor is going to do.”
Often Article 138 complaints go nowhere, but they are a necessary step if a service member plans to take a case to court, Fidell said.
“The complaining party has a right to an up-or-down vote on a complaint and there has to be a meaningful investigation and there has to be a report generated,” Fidell said.
Col. Leslie Zyzda Martin was fired from her job as commander of Volk Field in 2021. The dismissal meant she couldn’t be promoted to a higher rank. As a result she retired from the South Carolina Guard in October. (Kenny Yoo for Wisconsin Watch)
But Wisconsin’s law does not provide guidance on how such a review should be conducted, a key departure from how such complaints are handled on the federal level, said retired U.S. Marine Corps Lt. Col. Chip Hodge, a military attorney, who now represents service members globally in legal cases.
“Usually the services provide procedural guidance and on implementing the law,” he said.
“I haven’t seen that in Wisconsin … which leads to that ambiguity. It seems like they could be taking advantage of the ambiguity.”
Lt. Col. Ryan Sweazey, a retired F-16 pilot and former inspector general in the U.S. Air Force who has worked with Zyzda Martin on her complaint, suspects that is the case.
“The governor’s office said, ‘We’re not taking further action, you lose,’ essentially, which is a violation of the Wisconsin state statute,” said Sweazey, who founded the Walk The Talk Foundation, an advocacy group helping service members navigate the military judicial system. “The law is nice but if there is no accountability for violating the law or circumventing it, what is the point?”
But David Moore, an attorney with Wisconsin’s Legislative Council, a nonpartisan agency of the Wisconsin Legislature, said the law is not clear on what it compels the governor to do.
“It’s not clear to me that Article 138 envisions a process for filing a complaint with the governor, but even if it does, that tees up that tricky question of ‘you can take it to the governor, but does he really have to do anything?’” Moore said. “And if he doesn’t do anything, is there any recourse to that?”
Although Evers is commander-in-chief of the Guard, Moore said that does not make him an officer in the context of the Article 138 statute. Also no court has clarified exactly what the law means.
Allegations not substantiated
The investigations against Zyzda Martin were the result of complaints made through the Air Force’s Office of Inspector General. In one case, even after the initial complainant voluntarily withdrew the complaint, May pushed for an investigation to continue, but the allegation still wasn’t substantiated.
In the end, May issued two letters of admonishment to Zyzda Martin on Nov. 8, 2021, the day she was fired. May and Knapp used information from the investigations as the basis for discipline.
This “effectively railroad(ed) her honorable career,” Zyzda Martin’s attorney Toni O’Neill wrote in her Article 138 complaint.
One letter said that although one investigation into Zyzda Martin’s work was unsubstantiated, 13 of 26 Guard members interviewed “noted some level of concerning conduct or negative connotations” about her approach. But Zyzda Martin says she was never told about any complaints and had little direct interaction with employees at Volk Field because everyone worked separately during the COVID-19 pandemic.
The letter also said there was evidence in one investigation of an unhealthy command climate, but Zyzda Martin noted the Guard never opened a separate inquiry into those allegations as required by military law.
May and Knapp fired her before their third investigation into her conduct was complete. That violates military guidance on such investigations, which directs commanders to defer discipline until an investigation is done.
Zyzda Martin said May told her years ago he planned to retire in March 2025. Another source granted anonymity to share internal Guard information confirmed that’s still the case and that May didn’t apply to become the permanent adjutant general.
Zyzda Martin now works for a defense consulting firm and said she is considering her next move to clear her name.
“If this is how the leaders of our defense treat their subordinates, can you imagine what is happening to the structure of our defense department?” Zyzda Martin said. “If governors are going to be in charge of the military they need to be held accountable and follow their procedures.”
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