On Thursday, the Supreme Court permitted the Trump Administration to implement a policy mandating that all passports display the holder’s sex assigned at birth, thereby preventing individuals from selecting a marker that corresponds more closely with their gender identity.
This decision marks another win for President Donald Trump, known for restricting the rights of transgender, nonbinary, and intersex individuals in the U.S. In a move, the court, which leans conservative, approved the Administration’s urgent appeal to temporarily halt a district judge’s June injunction concerning the passport sex marker policy, while legal proceedings continue in lower courts.
The injunction had mandated that the State Department allow passport applicants to choose their sex marker—options included “M” for male, “F” for female, or “X” for neither. The Administration filed an emergency request with the Supreme Court after an appeals court refused to overturn this injunction.
The Supreme Court’s ruling, which did not specify individual votes but recorded dissents from the three liberal justices—Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor—stated: “Showing passport holders’ sex at birth does not violate equal protection principles any more than showing their country of birth; in both scenarios, the Government is simply confirming a historical fact without subjecting anyone to unfair treatment.”
Justice Jackson, author of the dissenting opinion, argued that the Court’s choice to stay the injunction during the appeal “misinterprets its role” and “has enabled immediate harm without sufficient (or, indeed, any) justification.”
Jackson stated: “The Government is attempting to enforce a new policy of questionable legality immediately, yet it provides no proof of suffering harm if temporarily prevented from doing so, whereas the plaintiffs will face immediate, tangible injury if the policy is implemented.”
The American Civil Liberties Union (ACLU), which initiated a class action lawsuit against the Administration’s policy in February, described the ruling as “a devastating blow to the freedom of all individuals to express themselves, and further intensifies the Trump administration’s efforts against transgender people and their constitutional protections.” Jon Davidson, senior counsel for the ACLU’s LGBTQ & HIV Project, further commented, “Compelling transgender individuals to possess passports that involuntarily disclose their identity increases their vulnerability to harassment and violence, and exacerbates the significant obstacles they already encounter in achieving liberty, security, and acceptance.”
Conversely, Attorney General Pam Bondi lauded the decision, reaffirming the Administration’s commitment to resisting gender identity and expression freedoms. Bondi declared, “Today’s stay permits the government to mandate citizens to state their biological sex on their passports. Simply put: there are two sexes, and our legal team will persist in defending this fundamental truth.”
A dramatic reversal of practice
Earlier this year, on his first day back in office, Trump issued the executive order at the center of this case, stating that the U.S. would officially acknowledge only two sexes: male and female. This order instructed agencies to ensure that all government-issued identification, including passports, “accurately represent the holder’s sex.”
This Administration’s stance on passport sex markers represents a significant departure from decades of State Department policy. While sex markers have been included in passports since the 1970s, since 1992, applicants had the option to select a sex marker different from their assigned sex at birth, provided medical documentation. In 2021, President Joe Biden’s State Department eliminated these documentary requirements and introduced a third option, “X,” for nonbinary, intersex, and gender non-conforming applicants.
Reports indicate that approximately 1.6 million transgender individuals aged 13 and above and 1.2 million nonbinary adults reside in the U.S. The Department of Health and Human Services estimates the intersex population in the U.S. to be .
The ACLU reported that shortly after Trump’s Executive Order, the State Department commenced declining to issue new, renewed, or amended passports featuring a sex marker inconsistent with what the department determined to be the applicant’s sex assigned at birth.
Transgender individuals filed a lawsuit, asserting that the policy infringes upon their Fifth Amendment rights and the Administrative Procedure Act. Ashton Orr, the lead plaintiff, is a transgender man from West Virginia who, per court records, was previously accused by transportation authorities of using fraudulent identification.
In April, Federal Judge Julia Kobick in Massachusetts issued a preliminary injunction preventing the Administration from applying the policy to Orr and six other individual plaintiffs. By June, Kobick expanded the injunction’s scope to include all transgender, nonbinary, and intersex applicants. In September, the U.S. Court of Appeals in the First Circuit in Boston declined to block Kobick’s injunction.
Although the passport markers case is ongoing, despite the Supreme Court permitting its enforcement for now, it represents merely one instance among several in which the second-term Trump Administration has restricted LGBT rights, especially those of transgender individuals.
In January, Trump signed an order prohibiting for individuals under 19. He also enacted an order . Furthermore, in May, the Supreme Court permitted the .
However, the repercussions of Trump’s initiatives could extend beyond the transgender community, according to Chase Strangio, co-director for the ACLU’s LGBTQ & HIV Rights Project. Strangio stated, “These Executive Orders and laws create an avenue for sex-based policing that cannot be implemented without subjecting everyone to a level of scrutiny and an invasive process that will adversely affect us all.”
