The Supreme Court on Thursday allowed the Trump administration to move ahead for now with a policy requiring that Americans’ passports reflect the holders’ sex at birth.
In an emergency order, the court said the requirement is akin to displaying a person’s country at birth. “The government is merely attesting to a historical fact without subjecting anyone to differential treatment,” it said in a short unsigned order.
The justices’ action pauses a lower-court order that blocked the policy, which prevents transgender and nonbinary people from selecting their preferred sex on their passports, while litigation against it is ongoing.
Justice Ketanji Brown Jackson wrote in dissent, joined by two other members of the court’s liberal wing, that the court had “once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.”
President Trump issued an executive order on Inauguration Day declaring the U.S. only recognizes two sexes, male and female, prompting the State Department to change its passport policy.
The federal government has issued passports with either the “M” or “F” sex marker since 1976. Since 2010, Americans have been able to change the gender markers on their passport with a doctor’s certificate. In 2021, the Biden administration issued a new policy that allowed people to choose “X” as a third option if they don’t identify as male or female.
A group of transgender, nonbinary and intersex people filed a class action challenging Trump’s new policy, arguing it unconstitutionally discriminates on the basis of sex and was motivated by an animus toward transgender and nonbinary Americans.
The new policy was quickly blocked by a district-court judge in Massachusetts. An appeals court declined to put the lower-court order on hold, and the Trump administration asked the justices to intervene.
U.S. Solicitor General John Sauer argued the policy doesn’t discriminate based on sex because “every passport, for every individual, must reflect immutable biological characteristics, not purported gender identity.” He cited the court’s recent decision to allow states to restrict hormone therapies and other care for transgender minors. In that case, the court held that a law doesn’t discriminate as long as it applies equally to members of both sexes, he said.
“It was entirely rational for the President to reject ‘gender identity’ as a ‘basis for identification’ in favor of a ‘biological’ definition of sex—one grounded in facts that are ‘immutable,’” Sauer said.
The challengers disagreed. “The government permitted self-selection and X sex markers for years before the Passport Policy, and there is no indication that ever impacted foreign affairs,” they said in a brief to the court. “The government also accepts passports with X markers from the many countries that permit them.”
Attorney General Pam Bondi said in a social-media post Thursday that the Trump administration would now be able to advance its efforts to draw clear gender lines. “There are two sexes, and our attorneys will continue fighting for that simple truth,” she said.
Jon Davidson, a lawyer for the ACLU, 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.”
