The Supreme Court on Thursday allowed US President Donald Trump’s administration to enforce a policy blocking transgender and nonbinary people from choosing passport sex markers that aligned with their gender identity.
The decision, issued on the court’s emergency docket, permits the policy to remain in effect while a lawsuit over it proceeds.
A lower-court order had required the government to continue letting applicants select male, female, or X on new or renewed passports to correspond with their gender identity. The Supreme Court’s three liberal justices dissented from the unsigned, conservative-majority order, AP news agency reported.
“Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth,” the unsigned order stated. “In both cases, the government is merely attesting to a historical fact without subjecting anyone to differential treatment.”
In dissent, Justice Ketanji Brown Jackson said the policy made transgender people vulnerable to “increased violence, harassment, and discrimination”. She added, “This court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification,” and noted the policy derived directly from Trump’s executive order that described transgender identity as “false” and “corrosive”.
The Supreme Court majority held that preventing enforcement of the policy would harm the govt because passports fall within foreign affairs, a domain of executive-branch control. The dissenting justices countered that it was unclear how individual identification documents affected national foreign policy.
The State Department altered its passport rules after Trump issued an executive order in January declaring the United States would “recognise two sexes, male and female” based on birth certificates and “biological classification”.
Sex markers on passports and changes to gender marker policies during Biden reign
Sex markers began appearing on passports in the mid-1970s and the federal govt started allowing them to be changed with medical documentation in the early 1990s, the plaintiffs said in court documents.
A 2021 change under then-President Joe Biden, a Democrat, removed documentation requirements and allowed nonbinary people to choose an X gender marker after years of litigation.
A judge blocked the Trump administration policy in June after a lawsuit from nonbinary and transgender people, some of whom said they were afraid to submit applications.
An appeals court left the judge’s order in place. Solicitor General D John Sauer then turned to the Supreme Court, pointing to its recent ruling upholding a ban on transition-related healthcare for transgender minors and calling the Biden-era policy inaccurate.
What it means for transgender?
The plaintiffs, who challenged the policy, argue these passports are inaccurate and can be unsafe for those whose gender expression does not match the documents.
“Forcing transgender people to carry passports that out them against their will increases the risk that they will face harassment and violence,” Jon Davidson, senior counsel for the ACLU’s LGBTQ and HIV Project, 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.”
Transgender actor Hunter Schafer said in February that her new passport had been issued with a male gender marker, despite her having been marked female on her driver’s licence and previous passports.
The decision, issued on the court’s emergency docket, permits the policy to remain in effect while a lawsuit over it proceeds.
A lower-court order had required the government to continue letting applicants select male, female, or X on new or renewed passports to correspond with their gender identity. The Supreme Court’s three liberal justices dissented from the unsigned, conservative-majority order, AP news agency reported.
“Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth,” the unsigned order stated. “In both cases, the government is merely attesting to a historical fact without subjecting anyone to differential treatment.”
In dissent, Justice Ketanji Brown Jackson said the policy made transgender people vulnerable to “increased violence, harassment, and discrimination”. She added, “This court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification,” and noted the policy derived directly from Trump’s executive order that described transgender identity as “false” and “corrosive”.
The Supreme Court majority held that preventing enforcement of the policy would harm the govt because passports fall within foreign affairs, a domain of executive-branch control. The dissenting justices countered that it was unclear how individual identification documents affected national foreign policy.
The State Department altered its passport rules after Trump issued an executive order in January declaring the United States would “recognise two sexes, male and female” based on birth certificates and “biological classification”.
Sex markers on passports and changes to gender marker policies during Biden reign
Sex markers began appearing on passports in the mid-1970s and the federal govt started allowing them to be changed with medical documentation in the early 1990s, the plaintiffs said in court documents.
A 2021 change under then-President Joe Biden, a Democrat, removed documentation requirements and allowed nonbinary people to choose an X gender marker after years of litigation.
A judge blocked the Trump administration policy in June after a lawsuit from nonbinary and transgender people, some of whom said they were afraid to submit applications.
An appeals court left the judge’s order in place. Solicitor General D John Sauer then turned to the Supreme Court, pointing to its recent ruling upholding a ban on transition-related healthcare for transgender minors and calling the Biden-era policy inaccurate.
What it means for transgender?
The plaintiffs, who challenged the policy, argue these passports are inaccurate and can be unsafe for those whose gender expression does not match the documents.
“Forcing transgender people to carry passports that out them against their will increases the risk that they will face harassment and violence,” Jon Davidson, senior counsel for the ACLU’s LGBTQ and HIV Project, 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.”
Transgender actor Hunter Schafer said in February that her new passport had been issued with a male gender marker, despite her having been marked female on her driver’s licence and previous passports.
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