Supreme Court Allows Trump Administration to Enforce Transgender and Non-Binary Passport Restrictions

The Supreme Court on Thursday granted President Donald Trump's administration permission to implement a policy that prevents transgender and nonbinary individuals from selecting passport sex markers corresponding to their gender identity.

This ruling by the conservative-majority court represents another victory for Trump on the high court's emergency docket, allowing his administration to enforce the policy while legal challenges continue. It suspends a lower-court directive that had required the government to continue permitting individuals to choose male, female, or X on their passports to align with their gender identity for new or renewed documents. The court's three liberal justices issued a dissenting opinion.

In its brief, unsigned order, the court stated that the policy does not appear to discriminate against transgender people, noting: "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 three liberal justices expressed disagreement, arguing in their dissent that passports listing only birth gender expose transgender individuals to "increased violence, harassment, and discrimination."

Justice Ketanji Brown Jackson wrote: "This Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification," adding that the policy directly stemmed from Trump's executive order characterizing transgender identity as "false" and "corrosive."

The State Department modified its passport regulations following Trump's executive order in January, which declared that the United States would "recognize two sexes, male and female," based on birth certificates and "biological classification."

Transgender actor Hunter Schafer revealed in February that her new passport had been issued with a male gender marker, despite having been marked female on her driver's license and passport for years.

The plaintiffs contend that passports limited to birth certificate sex designations can trigger harassment or even violence against transgender individuals.

"By classifying people based on sex assigned at birth and exclusively issuing sex markers on passports based on that sex classification, the State Department deprives plaintiffs of a usable identification document and the ability to travel safely," attorneys stated in court documents.

Sex markers began appearing on passports in the mid-1970s, with the federal government allowing changes with medical documentation beginning in the early 1990s, according to court documents filed by the plaintiffs. A 2021 policy change under President Joe Biden removed documentation requirements and permitted nonbinary individuals to select an X gender marker following years of litigation.

A judge blocked the Trump administration policy in June after a lawsuit from nonbinary and transgender people, some of whom expressed fear about submitting applications. An appeals court maintained the judge's order.

Solicitor General D. John Sauer subsequently appealed to the Supreme Court, citing its recent decision upholding a ban on transition-related healthcare for transgender minors. He also argued that Congress granted the president authority over passports, which overlaps with presidential power regarding foreign affairs.

"It is hard to imagine a system less conducive to accurate identification than one in which anyone can refuse to identify his or her sex and withhold relevant identifying information for any reason, or can rely on a mutable sense of self-identification," Sauer wrote in court documents.