The U.S. Supreme Court on Thursday allowed the Trump administration to implement a policy requiring passport applicants to list the sex shown on their birth certificate, reversing a lower-court injunction that had paused the policy and allowed applicants to choose M, F, or X.
Under the order, which does not decide the merits of the case, the administration’s rule can go into effect while litigation proceeds in the lower courts. The vote was 6–3 along ideological lines.
The unsigned order said, “Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth,” adding that in both instances “the Government is merely attesting to a historical fact without subjecting anyone to differential treatment.”
Justice Ketanji Brown Jackson wrote the dissent, joined by the court’s two other liberals, calling the order a “pointless but painful perversion of our equitable discretion.” She warned the decision “paves the way for the immediate infliction of injury without adequate (or, really, any) justification.”
Background and litigation
Male and female sex markers have appeared on U.S. passports since 1976. For more than three decades the government allowed some travelers to request a passport reflecting their gender identity rather than the sex listed on their birth certificate, and the option to use an “X” marker was introduced in 2021 under the Biden administration.
The policy change at issue would require use of the sex on the birth certificate and remove the option to select a gender identity marker. A nationwide group of plaintiffs, led by Ashton Orr, a transgender man who says he was falsely accused of using a fake passport after traveling with a passport listing a female sex marker, challenged the policy. They argued it would harm transgender and nonbinary people, undermine the government’s ability to identify citizens safely, and was motivated by unconstitutional discrimination in violation of the Fourteenth Amendment’s equal protection guarantee.
Orr’s attorneys wrote that “the challenged policy undermines the very purpose of passports as identity documents that officials check against the bearer’s appearance,” and said the rule “is aimed at the rejection of the identity of an entire group — transgender Americans — who have always existed.” The plaintiffs’ filings also note that the government acknowledged that the “outing of transgender, intersex, and nonbinary individuals” was “core to the Policy.”
The government’s emergency filing
The administration took the case to the Supreme Court after the U.S. Court of Appeals for the First Circuit refused to stay the lower court’s injunction. In its emergency filing the government argued that the injunction “injures the United States by compelling it to speak to foreign governments in contravention of both the President’s foreign policy and scientific reality.” The government urged the high court to allow the rule to take effect while the legal challenge continues.
What comes next
The Supreme Court’s order is an interim step, not a final ruling on the constitutionality of the policy. The underlying lawsuits will continue in lower courts, where judges will address the plaintiffs’ claims that the policy violates equal protection and causes other harms to transgender and nonbinary people.
