The U.S. Supreme Court on Thursday allowed President Trump to proceed with his plan to require that passport applicants list their sex as what was designated on their birth certificate. The court's decision overturns a lower court order pausing Trump's policy and allowing applicants to choose for themselves whether they would like to identify with an M for male, F for female, or an X for neither.
Male and female sex markers began to be listed on passports in 1976. The government has allowed citizens for over 30 years to request a passport that reflects their gender identity instead of the sex listed on a birth certificate. The choice to use an "X", however, only began in 2021 under President Biden.
Led by Ashton Orr, a transgender man who was falsely accused of using a fake passport by airport security when traveling with a passport that had a female sex marker, a nationwide group of plaintiffs argued that Trump's policy would hurt transgender and non-binary individuals, would harm the government's ability to identify citizens, and was motivated by unconstitutional transphobia in violation of the Fourteenth Amendment guarantee to equal protection of the law.
"The challenged policy undermines the very purpose of passports as identity documents that officials check against the bearer's appearance," Orr's attorneys said in their briefs. "It is aimed at the rejection of the identity of an entire group — transgender Americans — who have always existed." The government, Orr's counsel points out, acknowledged that the "outing of transgender, intersex, and nonbinary individuals" was "core to the Policy."
The government submitted its emergency filing to the Supreme Court after the U.S. Court of Appeals for the First Circuit refused to block the lower court order that paused Trump's policy. 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."
With its decision on Thursday, the Supreme Court signaled that it likely agrees with the administration. The court's decision is not a final ruling, however; it just permits Trump's biological sex passport policy to go into effect while litigation continues in the lower courts.
The vote was 6-3 along ideological lines.
"Displaying passport holders' sex at birth no more offends equal protection principles than displaying their country of birth," the court said in the unsigned order, "in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment."
Justice Ketanji Brown Jackson wrote the dissent, which was joined by the court's two other liberals. She called the order a "pointless but painful perversion of our equitable discretion."
"This Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification," she wrote.
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