Supreme Court Clears Way for Trump Transgender Passport Policy

A lower court judge had temporarily blocked the administration’s policy requiring that passports reflect sex as found on an original birth certificate.

The Supreme Court cleared the way on Thursday for the Trump administration to stop issuing passports that include gender identity markings selected by applicants.

The emergency order, which will remain in place as the case makes its way through the lower courts, marked the latest victory for President Trump before the Supreme Court.

The case, Trump v. Orr, stems from a Trump administration policy to change gender requirements for passport holders. The policy has been blocked since June, when a federal court temporarily stopped the administration from enforcing it while the court case continued.

No vote count was given, as is typical in such cases, but the majority offered four paragraphs of reasoning for granting the administration’s request.

“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 who sided with the Trump administration wrote in an unsigned order.

Justice Ketanji Brown Jackson wrote a dissent, and she was joined by the court’s two other liberals, Justices Elena Kagan and Sonia Sotomayor.

Justice Jackson wrote that it had become “routine” for the Trump administration to seek emergency relief from the justices after lower courts block its policies, adding: “As is also becoming routine, this court misunderstands the assignment.”

She said that the government had found “an obliging audience” for its efforts to change the passport rules among the Supreme Court justices.

Justice Jackson explained that she would have rejected the government’s request because “the documented real-world harms to these plaintiffs obviously outweigh the government’s unexplained (and inexplicable) interest in immediate implementation of the passport policy.”

Jon Davidson, senior counsel for the American Civil Liberties Union’s LGBTQ & HIV Project, which challenged the Trump administration policy, said in a statement that the court ruling was “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.”

The case arose in the early days of Mr. Trump’s second term as a legal challenge to an executive order signed by the president on his first day back in office. That order prompted the State Department to rescind longstanding policies allowing transgender people to update gender markers on their travel documents.

The mandate from the president was one of several intended to limit government recognition of transgender status, including orders barring transgender soldiers from the military, requiring the Bureau of Prisons to house female transgender prisoners in men’s prisons, and ending transgender medical treatments for federal inmates.

The State Department’s passport policies have grown more permissive since the agency issued its first directive on the subject in 1971. At the time, passports did not include a sex marker. In the late 1970s, the department began to include them on passports, a move that the government then attributed to the rise of unisex fashion and hair styles.

The State Department began allowing transgender people to obtain passports with updated sex markers in the 1990s, so long as they provided evidence of having undergone gender transition surgery. That requirement was rescinded in 2010, under then-Secretary of State Hillary Clinton, and the department began asking only that transgender passport applicants provide a doctor’s letter affirming that they had received “appropriate clinical treatment for gender transition.”

In 2021, the State Department issued the first passport with a gender-neutral marker — an “x.” The following year, the Biden administration announced a policy allowing passport applicants to select any gender marker.

The A.C.L.U. challenged the Trump administration’s reversal of the passport policy, bringing a lawsuit in federal court in Massachusetts on behalf of seven people who claimed they had not been able to obtain passports that matched their gender identity because of the new policy, or that they would be harmed by the policy when renewing their passports.

In the lawsuit, the A.C.L.U. argued that the policy violated the Constitution’s right to travel and right to privacy, as well as the equal protection clause that requires that people be treated the same under the law. The group also claimed that the policy violated the passport holders’ First Amendment rights, compelling transgender, nonbinary and intersex passport holders to go along with the government’s “ideologically-infused message that their sex is what the executive order defines it to be.”

In June, a federal judge in Massachusetts ordered the State Department to allow people whose gender identity is different from their sex assigned at birth to self-identify on their passports while the legal case proceeded.

On Sept. 4, a panel of appeals court judges unanimously upheld the lower court’s decision.

Weeks later, the Trump administration filed an emergency request with the Supreme Court, asking it to step in and clear the way for the new State Department policy to take effect.

In the emergency application, D. John Sauer, the solicitor general, argued that “private citizens cannot force the government to use inaccurate sex designations on identification documents that fail to reflect the person’s biological sex — especially not on identification documents that are government property and an exercise of the president’s constitutional and statutory power to communicate with foreign governments.”

Lawyers from the A.C.L.U., which represents the plaintiffs, responded that “classifying people based on sex assigned at birth and exclusively issuing sex markers on passports based on that sex classification” would deprive people of “a usable identification document and the ability to travel safely.”

In a brief to the court, the A.C.L.U. lawyers asserted that their clients sought “the same thing millions of Americans take for granted: passports that allow them to travel without fear of misidentification, harassment or violence.”

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