The Supreme Court on Thursday allowed President Donald Trump’s administration to enforce a policy blocking transgender and nonbinary people from choosing passport sex markers that align with their gender identity.
The decision by the high court’s conservative majority is Trump’s latest win on justices' emergency docket, and it means his administration can enforce the policy while a lawsuit over it plays out. It halts a lower-court order requiring the government to keep letting people choose male, female or X on their passport to line up with their gender identity on new or renewed passports.
The State Department changed its passport rules after Trump, a Republican, handed down an executive order in January declaring the United States would “recognize two sexes, male and female,” based on birth certificates and “biological classification.”
Transgender actor Hunter Schafer, for example, said in February that her new passport had been issued with a male gender marker, even though she’s marked female on her driver’s license and passport for years.
The plaintiffs argue that passports limited to the sex listed on a birth certificate can spark harassment or even violence for transgender people.
“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 wrote in court documents.
Sex markers began appearing on passports in the mid-1970s and the federal government started allowing them to be changed with medical documentation in the early 1990s, the plaintiffs said in court documents. A 2021 change under 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 health care for transgender minors. He also argued Congress gave the president control over passports, which overlap with his authority over 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.
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