The Supreme Court has just reversed lower court orders that blocked the Trump administration from enforcing its new passport rules that say that sex markers must reflect birth assignment, not gender identity. Although temporary, this emergency decision puts trans and non-binary travelers at risk.
Passport Rights Reverse Overnight
For over thirty years, transgender Americans could get passports that matched their gender identity. At first, from 1992 to 2010, you had to show proof of surgery to change your sex marker. In 2010, the State Department made things easier, letting people use a doctor’s note instead. Then, in 2021, the rules changed again, and you could pick your sex marker based on your gender identity. There was also a new “X” option for non-binary, intersex, and gender non-conforming folks. No medical paperwork needed.
It all changed again when President Trump took office for his second term. Earlier this year, one of his executive orders, EO 14168, said the U.S. would only recognize two sexes: male and female. The order used strict biological definitions and rejected gender identity as a basis for identification. It also said that letting people pick their sex marker was a “false claim” and didn’t help with identification. The order told the State Department to update passport rules so that passports would only show the sex assigned at birth.
Just two days later, the State Department followed through on the orders. They stopped letting people choose a sex marker that matched their gender identity. The “X” option disappeared. Now, everyone’s passport had to show the sex assigned at birth, and only “M” or “F” were available. The State Department updated its website and forms, and started using older versions that fit the new policy.
Travel Turns Risky for Trans Plaintiffs
Legal challenges ensued. Seven transgender and non-binary plaintiffs argued this was a big problem. Some individuals had driver’s licenses and Social Security cards that matched their gender identity, but their passports did not. A few had just applied to renew their passports, hoping for the right sex marker. Instead, they got passports with the wrong marker, or their applications were put on hold. Some were called by the State Department and told they could only get a passport with their sex assigned at birth.
Travel got complicated and scary. The plaintiffs shared stories of being harassed by TSA officers because their documents didn’t match. One was accused of using a fake ID. Another was strip-searched. These experiences were humiliating and made them fear for their safety, they contend. Some had to cancel international trips because they couldn’t get a passport that matched their gender identity. Others worried about missing out on work, academic, or medical opportunities.
The American Civil Liberties Union connected with all of these people, and later others, to bring a lawsuit against Trump and the federal government.
Inside the Legal Challenge
The plaintiffs claimed the new passport policy was unconstitutional and illegal. Their main argument was that the policy discriminated against transgender and non-binary people based on sex and gender identity. They pointed to the Fifth Amendment’s equal protection guarantee, arguing that the government couldn’t treat people differently just because their gender identity didn’t match their sex assigned at birth. They also said the policy was rooted in prejudice. The executive order and passport rules, they argued, targeted transgender Americans out of animus rather than any real government need.
The plaintiffs further argued the policy violated the Administrative Procedure Act (APA) in several significant ways. Specifically, the department provided no explanation for abruptly reversing three decades of more inclusive practice, which previously allowed applicants to select gender-affirming passport markers or opt for a non-binary "X" designation. Instead, the policy required all passports to reflect the sex assigned at birth, with no discussion of how prior factual findings or reliance interests had changed.
The plaintiffs also contended the State Department failed to follow required procedures under the Paperwork Reduction Act because it swapped out forms without public notice or approval. Under the APA, courts generally review agency actions that involve the agency using its own judgment or discretion (such as setting policies or interpreting mandates) rather than actions where the agency simply carries out a president’s clear instruction without independent policy choices. In this case, the State Department did not merely process paperwork in response to the president’s order; it made key decisions on how to interpret and implement the order, such as how to define sex markers and what evidence to require. In contrast, if an agency’s action were entirely dictated by the president, with no independent decision-making, courts might classify it as non-reviewable under the APA.
The plaintiffs added that the policy interfered with their right to travel abroad and their right to privacy. They said being forced to use a passport that didn’t match their identity put their safety and mental health at risk, and exposed private information about their gender identity against their will. They pointed to how the policy forced people to use passports that “outed” them every time they traveled, risking harassment and violence. The plaintiffs asked the court to block the policy and let them get passports that matched who they were.
Lower Courts Side With Plaintiffs
The district court found that the policy indeed discriminated based on sex, since it treated people differently depending on whether their gender identity matched their sex assigned at birth. For example, a transgender woman couldn't get a passport with a female marker, while a cisgender woman could. The court said this was a clear case of sex-based discrimination and required the government to justify it under a higher standard.
The government argued it needed uniform data across agencies, but the court didn't buy it; there was no real evidence that different definitions of sex had caused any problems before, and "administrative convenience" isn't enough to justify discrimination. The court also agreed with the plaintiffs the policy seemed motivated by animus against transgender people, pointing to the harsh language in the executive order and a pattern of anti-transgender actions. Finally, the court found the State Department hadn't given a good reason for suddenly changing its policy, making the change "arbitrary and capricious" under the law.
So, the court issued a preliminary injunction that blocked the State Department from enforcing its new policy, to protect the plaintiffs while the case moved forward. After the district court's preliminary injunction, the government appealed and repeatedly tried to pause the injunction. The First Circuit refused to stay the injunction. But then, last Thursday, the U.S. Supreme Court came to the rescue.
A Supreme Setback
SCOTUS turned the tables and granted a stay, allowing the government to enforce the new passport policy while the appeals continue.
The majority viewed the policy as a neutral act of recording a historical fact akin to country of birth. They wrote that “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 thought that it seemed likely that the policy did not violate equal protection, and that the government was likely to succeed on the merits of its defense to both the constitutional and APA claims.
The liberal justices (Jackson, joined by Sotomayor and Kagan) directly challenged both the legal and practical logic of the majority. They cited statistics to support their argument that this designation was more than a “historical fact”. For example: “transgender people who encounter obstacles to obtaining gender-congruent identity documents are almost twice as likely to experience suicidal ideation, and report more severe psychological distress, than transgender people who do not face such barriers.” They also cited multiple documented incidents of TSA harassment and violence for travelers with gender-incongruent documents.
Jackson condemned the Court’s refusal to consider the “basic norms of equity jurisdiction” and described the majority’s ruling as “an abdication of the Court’s duty to ensure that equitable standards apply equally to all litigants—to transgender people and the Government alike”.
This isn’t likely to be the last time that SCOTUS will see the case. Stay tuned.
Related Resources:
- SCOTUS Clears Path for Trump's Trans Military Ban (FindLaw’s Federal Courts)
- Court Strikes Down Trump’s Citizenship Voting Order as Unconstitutional (FindLaw’s Federal Courts)
- How to Change Your Legal Name and Gender Marker (FindLaw’s Learn About the Law)
