Trump administration urges Supreme Court to prevent transgender people from choosing sex markers on passports

The Trump administration came to the Supreme Court on Friday morning, asking the justices to temporarily pause a ruling by a federal judge in Massachusetts that would require the State Department to provide transgender and nonbinary people with passports reflecting the sex designation of their choosing. The order by U.S. District Judge Julia Kobick, U.S. Solicitor General D. John Sauer told the justices, “injures the United States by compelling it to speak to foreign governments in contravention of both the President’s foreign policy and scientific reality.”

Under a policy implemented during the Biden administration, passport applicants could select their own markers for their sex, which allowed transgender people to obtain passports that reflected their gender identity. The Biden administration also added a third gender marker – “X” – for nonbinary applicants.

In an executive order issued on Jan. 20, Trump indicated that, going forward, U.S. policy would “recognize two sexes, male and female.” “‘Sex,’” the order continued, “shall refer to an individual’s immutable biological classification as either male or female” and “does not include the concept of ‘gender identity.’” The order also directed the State Department to “require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex.”

A group of plaintiffs led by Ashton Orr, who is transgender, went to federal court in Massachusetts to challenge the policy. Kobick initially issued an order that barred State Department officials from enforcing the policy against the individual plaintiffs. Kobick concluded that the plaintiffs were likely to succeed on their claims that, among other things, the policy violates their constitutional right to equal treatment and that the policy violates the federal law governing administrative agencies. In June, Kobrick then prohibited the State Department from enforcing the policy against a broader group of transgender and nonbinary passport applicants.

After the U.S. Court of Appeals for the 1st Circuit declined to put Kobick’s order on hold while the government appeals, the Trump administration came to the Supreme Court, asking the justices to block Kobick’s June order. Calling the passport policy “eminently lawful,” Sauer pointed to the Supreme Court’s recent decision in United States v. Skrmetti, in which the justices – by a vote of 6-3 – upheld Tennessee’s ban on certain forms of medical treatments for transgender minors. Skrmetti made clear, Sauer wrote, that “a policy does not discriminate based on sex if it applies equally to each sex without treating any member of one sex worse than a similarly situated member of the other. And here,” he said, “the challenged policy applies equally, regardless of sex—defining sex for everyone in terms of biology rather than self-identification.”

Sauer also rejected Kobick’s finding that the passport policy “was motivated by animus towards trans-identifying individuals.” “It was entirely rational,” Sauer said, “for the President to reject ‘gender identity’ as a ‘basis for identification’ in favor of a ‘biological’ definition of sex—one grounded in facts that are ‘immutable.’”

Finally, Sauer suggested, the challengers will not be permanently harmed if Kobick’s order is paused while the litigation continues – another factor that the court considers in deciding whether to grant temporary relief – because Kobick’s definition of the groups covered by her order does not require “either concrete plans to travel internationally or a diagnosis of gender dysphoria.”