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The Supreme Court cleared the way for the State Department to require people to state their biological sex on new or renewed passports, a victory for the Trump administration as it aims to tighten policies involving transgender people.
The high court found in a 6-3 order temporarily greenlighting the policy that a lower court in Massachusetts had erred in blocking it.
“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 majority wrote in the unsigned order.
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The three liberal justices dissented. Justice Ketanji Brown Jackson, a Biden appointee, blasted her Republican-appointed colleagues in a lengthy dissent for what she said had become a “routine” of siding with the Trump administration on the emergency docket.
The majority “fails to spill any ink considering the plaintiffs, opting instead to intervene in the Government’s favor without equitable justification, and in a manner that permits harm to be inflicted on the most vulnerable party,” Jackson wrote, adding that transgender people have been permitted to state their preferred gender on passports for more than three decades.
The class action lawsuit, brought by a dozen self-described transgender, nonbinary or intersex people on behalf of themselves and others in their situation, will continue to proceed through the lower courts.
The plaintiffs had argued in court papers that passports should “reflect the sex [people] live as and express, rather than the sex they were assigned at birth.”
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Solicitor General John Sauer wrote on behalf of President Donald Trump that passports effectively communicate information to foreign governments and private citizens cannot force the president to communicate in a way that defies his foreign policy preferences and “scientific reality.”
The policy, which reversed the Biden administration’s allowance of an “X” gender option on passports, was implemented as part of a string of executive orders Trump issued when he took office aimed at requiring transgender people to identify as their biological sex in certain situations, including in gender-exclusive sports and in the military.
Attorney General Pam Bondi celebrated that the high court had handed the Department of Justice roughly two-dozen wins this year on the emergency docket, sometimes referred to as a shadow or interim docket, where cases are fast-tracked so that the Supreme Court can potentially offer temporary resolutions until the merits of the cases are examined.
“Today’s stay allows the government to require citizens to list their biological sex on their passport,” Bondi said on social media. “In other words: there are two sexes, and our attorneys will continue fighting for that simple truth.”
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