adminreporter
The U.S. Supreme Court on Thursday granted approval for former President Donald Trump’s administration to enforce a controversial policy preventing transgender and nonbinary individuals from selecting passport sex markers that align with their gender identity.
The conservative-majority court’s decision marks another victory for Trump on the high court’s emergency docket, allowing his administration to implement the measure while ongoing legal challenges continue. The ruling pauses a lower court’s injunction that had required the government to let applicants choose male, female, or “X” on passports to reflect their gender identity. The court’s three liberal justices dissented.
In a brief, unsigned order, the justices stated that the policy does not appear to violate constitutional protections for transgender people. “Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth,” the order read. “In both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment.”
However, the court’s liberal bloc strongly disagreed. In a pointed dissent, the justices argued that forcing passports to display only a person’s sex assigned at birth exposes transgender individuals to heightened risks of “violence, harassment, and discrimination.”
“This Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification,” wrote Justice Ketanji Brown Jackson, who criticized the ruling as a direct extension of Trump’s executive order that described transgender identity as “false” and “corrosive.”
The State Department revised its passport policy following Trump’s January executive order declaring that the United States would “recognize two sexes, male and female,” based strictly on birth certificates and “biological classification.”
In February, transgender actor Hunter Schafer revealed that her newly issued passport listed a male gender marker, despite her identification documents—including her driver’s license—having long recognized her as female.
Plaintiffs challenging the policy argue that restricting passports to sex assigned at birth endangers transgender people by increasing their exposure to harassment or violence.
“By classifying people based on sex assigned at birth and exclusively issuing sex markers on passports based on that sex classification, the State Department deprives plaintiffs of a usable identification document and the ability to travel safely,” attorneys wrote in their filing.
According to court documents, sex markers were first added to U.S. passports in the mid-1970s, with the federal government allowing gender changes on passports beginning in the early 1990s—provided applicants supplied medical documentation. Under President Joe Biden’s administration, a 2021 reform eliminated the documentation requirement and permitted nonbinary individuals to select an “X” gender marker.
A federal judge blocked Trump’s policy in June after lawsuits from transgender and nonbinary plaintiffs who expressed fear of applying for passports under the new rule. The decision was upheld by an appeals court before the administration appealed to the Supreme Court.
Solicitor General D. John Sauer defended the administration’s position, citing the Court’s previous ruling upholding a ban on transition-related healthcare for transgender minors. He also contended that Congress granted the president broad authority over passports and foreign affairs.
“It is hard to imagine a system less conducive to accurate identification than one in which anyone can refuse to identify his or her sex and withhold relevant identifying information for any reason, or can rely on a mutable sense of self-identification,” Sauer argued in court documents.
The case now proceeds in lower courts, even as the administration’s restrictive policy takes effect nationwide.
