US Supreme Court Backs Trump on Passport Sex Designations (1)

A divided US Supreme Court dealt a fresh blow to transgender rights, temporarily reviving a Trump administration policy that generally requires new passports to reflect the sex on the holder’s birth certificate.

Granting a request from President Donald Trump over three dissents, the justices put on hold a federal district court ruling that had blocked part of a Jan. 20 executive order as likely illegal. The Supreme Court decision will apply while litigation continues in the case.

In an unsigned order, the court’s majority wrote that the government is likely to win on the merits of the legal fight.

“Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth — in both cases, the government is merely attesting to a historical fact without subjecting anyone to differential treatment,” the justices said.

The administration also faced “irreparable injury” from a lower court order “with foreign affairs implications concerning a government document,” the majority wrote.

Justice Ketanji Brown Jackson, joined by Justices Sonia Sotomayor and Elena Kagan, dissented, writing that their colleagues had “once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.”

“Absent an injunction, the plaintiffs and the classes of transgender Americans they represent are forced to make a difficult choice that no other Americans face: use gender-incongruent passports and risk harassment and bodily invasions, on the one hand, or avoid all activities (travel, opening a bank account, renting a car, starting a new job) that may require a passport, on the other,” Jackson wrote.

The Supreme Court’s conservative majority has repeatedly intervened this year to let Trump implement policies, even when lower courts have concluded he is probably violating the law. The court in May let Trump start discharging transgender members of the military, including people who had served openly for years.

Trump’s executive order instructed the State Department to issue passports that “accurately reflect the holder’s sex” based on the person’s “immutable biological classification as either male or female.”

The executive order upended State Department rules that had let transgender people indicate their sex on their passport based on their gender identity. The Trump policy also ended future use of the “X” mark for people who don’t identify as male or female.

US District Judge Julia Kobick in Boston ruled in April that the Trump policy probably discriminates on the basis of sex in violation of the Constitution, appeared to be driven by animus toward transgender people and likely was adopted by the State Department in an “arbitrary and capricious” manner. She granted class action status in June, giving the ruling nationwide effect.

The Trump administration has since begun issuing passports in compliance with the decisions, though officials said in a July court filing that the administration was tracking applications to ensure the State Department could replace the passports should Kobick’s rulings be overturned.

The Boston-based 1st US Circuit Court left Kobick’s ruling in force in September, saying the three-judge panel agreed with her that the policy was likely “arbitrary and capricious” in violation of the law that governs the procedures of federal administrative agencies.

The new policy is being challenged by seven transgender or gender non-binary people, represented by the American Civil Liberties Union.

US passports have included sex markers since 1976. The State Department in 1992 started letting applicants choose their marker to reflect their gender identity, though until 2010 only for people who had undergone gender-reassignment surgery. The department began allowing use of the X marker in 2021.

The passport gender policy is among several changes stemming from the executive order. Under new rules issued by US Customs and Border Protection, airlines are now required to ignore the X marker on passports and to record passengers as either male or female when they check in.

The Supreme Court is currently considering two cases with major implications for transgender people. The court heard arguments Oct. 7 on state laws that ban licensed counselors from using talk therapy try to change a child’s sexual orientation or gender identity.

The second case, likely to be argued in January, will determine whether states can ban transgender girls and women from competing for their schools on female athletic teams.

The case is Trump v. Orr, 25a319.

(Updates with details from the order and context.)

To contact the reporters on this story:
Greg Stohr in Washington at gstohr@bloomberg.net;
Zoe Tillman in Washington at ztillman2@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Sara Forden

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