Supreme Court allows Trump to limit passport sex markers for trans and nonbinary Americans
By John Fritze, Devan Cole, CNN
(CNN) — The Supreme Court on Thursday allowed the Trump administration to require the sex designation on US passports to align with a traveler’s biological sex, a blow to transgender and nonbinary Americans who have argued the policy is unconstitutional.
The order represented another win for President Donald Trump on the court’s emergency docket and another setback for LGBTQ rights at a time when the justices are considering multiple cases involving state laws aimed at trans Americans.
“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 court said in an unsigned order.
Justice Ketanji Brown Jackson, named to the court by former President Joe Biden, penned another scathing dissent, joined by the court’s other two liberals.
“Such senseless sidestepping of the obvious equitable outcome has become an unfortunate pattern,” Jackson wrote.
“So, too, has my own refusal to look the other way when basic principles are selectively discarded,” she said. “This court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.”
The American Civil Liberties Union, which had challenged the policy, described the court’s decision as a “heartbreaking setback for the freedom of all people to be themselves.”
“Forcing transgender people to carry passports that out them against their will increases the risk that they will face harassment and violence and adds to the considerable barriers they already face in securing freedom, safety, and acceptance,” said Jon Davidson, senior counsel for the ACLU’s LGBTQ & HIV Project.
US passports first carried sex markers in 1976, but the State Department in 1992 allowed citizens to choose a marker opposite from their sex assigned at birth if they submitted certain medical documentation. Then, in 2021, President Joe Biden’s administration allowed people to select “X” sex markers on their passports, an option that is particularly important for some intersex and nonbinary Americans.
Trump, who ran in part on rolling back gains made by transgender Americans, quickly reversed both policies after taking office earlier this year. The new policy required passports to reflect an applicant’s sex assigned at birth and it also removed the option to select an “X” sex marker.
Lawsuits quickly ensued, and earlier this year, a federal judge in Massachusetts blocked the government from enforcing the policy on a nationwide basis by filing a class-action lawsuit. In her ruling, US District Judge Julia Kobick, a Biden nominee, ruled that the policy on its face classified “applicants on the basis of sex” and therefore warranted higher judicial scrutiny.
A federal appeals court in Boston denied the administration’s request to block that lower court’s order. Though it wasn’t central to its decision, the court said that the government had failed “to engage meaningfully” with the lower court’s claims that the policy might run afoul of the Constitution’s Equal Protection Clause.
The Trump administration quickly filed an emergency appeal at the Supreme Court, arguing that the lower court order “has no basis in law or logic.”
Citing the Supreme Court’s decision earlier year upholding a state law that banned puberty blockers and hormone therapy for trans minors, the Justice Department argued that a policy does not discriminate on the basis of sex if it applies equally to each sex.
“A policy does not discriminate based on sex if it applies equally to each sex without treating any member of one sex worse than a similarly situated member of the other,” the administration told the Supreme Court. “And here, the challenged policy applies equally, regardless of sex – defining sex for everyone in terms of biology rather than self-identification.”
The administration also argued that courts cannot review presidential policies that may run afoul of the Administrative Procedure Act, a law that sets out the steps federal agencies must take to adopt or change federal regulations.
The plaintiffs who initially sued over the policy said it risked “misidentification, harassment, or violence” for Americans travelling abroad.
“Attorneys at @TheJusticeDept just secured our 24th victory at the Supreme Court’s emergency docket,” US Attorney General Pam Bondi said in a tweet. “Today’s stay allows the government to require citizens to list their biological sex on their passport. In other words: there are two sexes, and our attorneys will continue fighting for that simple truth.”
In a statement to CNN, White House spokesperson Anna Kelly praised the ruling as “a victory for common sense and President Trump, who was resoundingly elected to eliminate woke gender ideology from our federal government.”
It is the second time the conservative Supreme Court has let stand a Trump administration policy aimed at trans people. In May, a divided court allowed the administration to begin immediately enforcing a ban on transgender service members in the military. Neither decision is the final word on the legal cases at issue, only a short-term determination about what will happen while those cases continue to play out.
The Supreme Court took more than a month to consider Trump’s emergency appeal in the passport matter – the longest in any emergency case from the second Trump administration that was not set for arguments. By comparison, it took less than two weeks for the court to allow the president to enforce his ban on transgender Americans serving in the military.
This story has been updated with additional details.
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CNN’s Alejandra Jaramillo contributed to this report.
