Supreme Court Upholds Trump Administration’s Passport Gender Policy

The Supreme Court recently permitted the Trump administration to enact a policy limiting passport gender options to “male” and “female,” adhering to the sex assigned at birth.

This decision came as the conservative majority on the court granted an emergency request from the Trump administration, which aimed to roll back pro-transgender policies instituted by the Biden administration. These earlier policies allowed individuals to choose their gender or opt for a gender designation of X. The court’s action temporarily halted a lower court ruling that mandated the State Department issue passports aligned with a person’s self-identified gender rather than strictly biological factors.

In its order, the court stated, “Indicating a passport holder’s sex at birth does not violate the principle of equal protection any more than indicating the country of birth. In both cases, the government is merely establishing a historical fact without subjecting anyone to discriminatory treatment.”

Attorney General Pam Bondi expressed her satisfaction regarding this “24th Supreme Court emergency litigation victory” in a post on X. She mentioned, “Today’s stay allows the government to require citizens to indicate their biological sex on their passports. In other words, there are two genders, and our lawyers will continue to fight for that simple truth.”

The court’s three liberal justices dissented. Justice Ketanji Brown Jackson raised concerns, stating, “Courts today ignore these important limitations in their impartial discretion. The government is immediately implementing a legally questionable new policy, and while there is no evidence that the government will suffer any harm if its implementation is temporarily blocked, plaintiffs will suffer immediate and concrete harm if the policy goes into effect.” She criticized the court for prioritizing government interests at the expense of vulnerable parties.

Jackson added, “This senseless avoidance of clearly just outcomes has become an unfortunate pattern. Similarly, I refuse to turn a blind eye when fundamental principles are selectively discarded.”

In a related move that marked the beginning of Trump’s second term, he signed an executive order titled “Protecting Women from Gender Ideological Extremism and Restoring Biological Truth to the Federal Government.” This order stipulates that passports must “accurately reflect the gender of the holder” according to the government’s definition, stating that “Sex is not a synonym for, and does not include, the concept of ‘gender identity.’

The new policy was quickly challenged by various transgender individuals, who argue that it infringes on their rights under the Fifth Amendment and the federal Administrative Procedure Act.

One plaintiff, Ashton Orr, a woman identifying as male, applied for a passport indicating a male gender but was told by the State Department that she could only receive a female designation. A federal court in Massachusetts initially ruled against the Trump administration, but the U.S. Court of Appeals for the 1st Circuit did not pause this ruling while the case was still in litigation.

The Supreme Court indicated that the Trump administration is “likely to succeed on the merits,” noting that the suspension of the lower court’s ruling would prevent the executive branch from enforcing its policy in matters related to government documentation abroad. The court concluded that the government would face irreparable harm without a stay.