The Supreme Court ruled Thursday that the Trump administration can order US passports indicate the holders’ sex at birth and remove designations for transgender and nonbinary individuals.
In an unsigned order, the court stayed a pair of lower court rulings that prevented the administration from enforcing President Trump’s Day One executive order that “the policy of the United States [is] to recognize two sexes, male and female.”
“Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth,” read the order, “in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment.”
The court’s three liberal justices, Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor, indicated that they would have kept the lower court orders in place, with Jackson accusing her colleagues of “senseless sidestepping of the obvious equitable outcome.”
“The Government seeks to enforce a questionably legal new policy immediately, but it offers no evidence that it will suffer any harm if it is temporarily enjoined from doing so, while the plaintiffs will be subject to imminent, concrete injury if the policy goes into effect,” Jackson argued.
“The Court nonetheless fails to spill any ink considering the plaintiffs, opting instead to intervene in the Government’s favor without equitable justification, and in a manner that permits harm to be inflicted on the most vulnerable party,” she added.
Prior to Trump’s order, the State Department permitted passport applicants to select “M,” “F” or “X” as sex markers, and the selection was not required to correspond with the applicant’s biological sex.
Between 1992 and 2021, passport applicants were required to submit proof of gender-reassignment surgery or treatment for gender transition in order to select a sex marker different from at their birth.
The Biden administration scrapped that policy in 2021 and allowed applicants to self-select their sex markers, a move undone by the State Department shortly after Trump inked his executive order recognizing only two unchangeable sexes.
A federal district court blocked the Trump administration from imposing the new passport rules in June, and a panel of three Biden-appointed jurists on the 1st US Circuit Court of Appeals upheld the temporary injunction in September.
The plaintiffs suing the government over the policy argued in the lower courts that they faced “a greater risk of experiencing harassment and violence” while traveling abroad under the Trump administration’s new rule.
White House spokeswoman Anna Kelly noted that the ruling marks the Trump administration’s “24th victory at the Supreme Court.”
“This decision is a victory for common sense and President Trump, who was resoundingly elected to eliminate woke gender ideology from our federal government,” Kelly said in a statement. “There are only two genders, there is no such thing as gender ‘X’, and the Supreme Court is right to affirm that official identification should reflect biological truth.”
