The Supreme Court’s Republican-appointed majority has agreed to let the Trump administration implement its new passport policy, which has been opposed by a group of transgender and nonbinary 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 majority wrote Thursday.
The latest ruling in favor of the Trump administration came over dissent from the court’s three Democratic appointees. “The documented real-world harms to these plaintiffs obviously outweigh the Government’s unexplained (and inexplicable) interest in immediate implementation of the Passport Policy,” Justice Ketanji Brown Jackson wrote in dissent, joined Justices Sonia Sotomayor and Elena Kagan. She said the majority “has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.”
Under previous government policy, transgender passport applicants could choose male or female to correspond to their gender identity or sex assigned at birth, and intersex, nonbinary and gender nonconforming applicants could choose “X” instead of male or female. The new policy restricts passport applicants to their sex assigned at birth and to male or female, following President Donald Trump’s executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”
U.S. District Judge Julia Kobick issued an injunction against the new policy in June. The Biden appointee in Massachusetts wrote that the plaintiffs showed “uncontroverted evidence of the harms that transgender and non-binary people face if they are required to use passports bearing sex designations aligning with their sex assigned at birth rather than their gender identity.” The judge wrote that “transgender people with gender-discordant identity documents have an elevated risk of encountering problems with airport security and experiencing harassment or violence when traveling, particularly to countries that criminalize transgender expression.”
An appellate panel rejected the administration’s request to lift Kobick’s order. The panel of Biden appointees reasoned that the plaintiffs “will suffer a variety of immediate and irreparable harms” if the policy is enforced. U.S. Solicitor General John Sauer took an urgent appeal to the Supreme Court, seeking to lift the injunction while the litigation proceeds. He wrote that there’s “no basis in law or logic” for the lower court order that “injures the United States by compelling it to speak to foreign governments in contravention of both the President’s foreign policy and scientific reality.” Opposing the administration, the plaintiffs told the high court that they were only seeking “the same thing millions of Americans take for granted: passports that allow them to travel without fear of misidentification, harassment, or violence.” They said the administration’s preferred policy deprives them “of a usable identification document and the ability to travel safely.” Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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