The US Supreme Court today allowed President Donald Trump’s administration to enforce a policy blocking transgender and nonbinary people from choosing passport sex markers that align with their gender identity.
The decision is Trump’s latest win on the court’s emergency docket, and allows the administration to enforce the policy while a lawsuit over it plays out.
It halts a lower-court order requiring the government to keep letting people choose male, female or X on their passport to line up with their gender identity on new or renewed passports.
The court’s three liberal justices dissented.
The high court has sided with the government in nearly two dozen short-term orders on a range of policies since the start of Trump’s second term, including another case barring transgender people from serving in the military.
In a brief, unsigned order, the conservative-majority court said the policy isn’t discriminatory.
“Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth,” it said.
“In both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment.”
The court’s three liberal justices disagreed, saying in a dissent that those passports make transgender people vulnerable to “increased violence, harassment, and discrimination”.
“This Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification,” Justice Ketanji Brown Jackson wrote, saying the policy stemmed directly from Trump’s executive order that described transgender identity as “false” and “corrosive”.
Transgender and nonbinary people who sued over the policy have reported being sexually assaulted, strip-searched and accused of presenting fake documents at airport security checks, she wrote.
The majority said being unable to enforce the policy harms the government because passports are in the realm of foreign affairs, an area where courts have shown deference to the executive branch.
The dissenters, though, said it’s not clear exactly how individual identification documents affect the nation’s foreign policy.
The State Department changed its passport rules after Trump, a Republican, handed down an executive order in January declaring the United States would “recognise two sexes, male and female”, based on birth certificates and “biological classification”.
Transgender actor Hunter Schafer, for example, said in February that her new passport had been issued with a male gender marker, even though she’s marked female on her driver’s licence and passport for years.
The plaintiffs argue those passports aren’t accurate, and can be unsafe for those whose gender expression doesn’t match what’s on the documents.
“Forcing transgender people to carry passports that out them against their will increases the risk that they will face harassment and violence,” Jon Davidson, senior counsel for the ACLU’s LGBTQ and HIV Project, said.
“This is a heartbreaking setback for the freedom of all people to be themselves, and fuel on the fire the Trump administration is stoking against transgender people and their constitutional rights.”
Sex markers began appearing on passports in the mid-1970s and the federal government started allowing them to be changed with medical documentation in the early 1990s, the plaintiffs said in court documents.
A 2021 change under President Joe Biden, a Democrat, removed documentation requirements and allowed nonbinary people to choose an X gender marker after years of litigation.
A judge blocked the Trump administration policy in June after a lawsuit from nonbinary and transgender people, some of whom said they were afraid to submit applications.
An appeals court left the judge’s order in place.
Solicitor General Dean John Sauer then turned to the Supreme Court, pointing to its recent ruling upholding a ban on transition-related health care for transgender minors.
He also argued Congress gave the president control over passports, which overlap with his authority over 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 wrote in court documents.
Attorney General Pam Bondi applauded the order, saying there are two sexes and Justice Department attorneys would continue to fight for that “simple truth”.
