The Supreme Court, in an order issued from its emergency docket, has granted the Trump administration the temporary authority to enforce a policy that restricts the sex designation on U.S. passports to the sex assigned at birth.
This ruling effectively halts a lower court’s injunction and allows the policy to remain in effect while the underlying litigation challenging it proceeds through the courts.
The decision allows the administration to require new or renewed passports to reflect only the applicant’s sex assigned at birth (Male or Female), a policy that stems from a January 2025 executive order.
This temporarily ends the 2021 policy, introduced under the Biden administration, that allowed applicants to self-select their gender marker—including a third, nonbinary option “X”—without the requirement of medical documentation.
The conservative-majority Court issued an unsigned order asserting that displaying a passport holder’s sex at birth “no more offends equal protection principles than displaying their country of birth.” The majority reasoned that the government is simply “attesting to a historical fact without subjecting anyone to differential treatment.” The majority also cited the government’s foreign affairs authority over passports as a factor in granting the temporary stay.
The Court’s three liberal justices dissented.
Justice Ketanji Brown Jackson, writing for the dissent, argued that the decision “paved the way for the immediate infliction of injury” and that the policy makes transgender individuals vulnerable to “increased violence, harassment, and discrimination” when traveling with documents that do not align with their gender identity.
The ruling is a significant setback for LGBTQ+ advocates and individuals who rely on accurate identification documents for safety and basic functions of travel and life.
Plaintiffs and civil rights organizations argue that forcing transgender and nonbinary people to carry passports that “out them” against their will increases their risk of being questioned, harassed, strip-searched, or even detained by security officials whose laws or protocols may be based on the gender marker on the document.
Passports with an “X” gender marker or a gender marker reflecting a person’s identity that were issued under the previous policy remain valid until their expiration date.
The policy change primarily affects new applicants or those seeking to renew or correct their passport’s gender marker.
The court’s decision is only a temporary ruling on the stay, not a final judgment on the constitutionality of the policy.
The class-action lawsuit filed by the ACLU and other advocates challenging the policy as unconstitutional discrimination and a violation of administrative law will continue to proceed in the lower courts.
