Supreme Court Lets Trump Require Biological Sex on Passports

The Supreme Court delivered a victory to the Trump administration regarding a policy that passports should identify people based only on biological sex.

“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 high court’s unsigned order says.

The three liberal justices dissented.

“The Government seeks to enforce a questionably legal new policy immediately, but it offers no evidence that it will suffer any harm if it is temporarily enjoined from doing so, while the plaintiffs will be subject to imminent, concrete injury if the policy goes into effect,” Justice Ketanji Brown Jackson wrote in a dissenting opinion.

Litigants in the case of Trump v. Orr sued to allow passports to reflect the gender identity of someone’s choice; meaning, a passport for a biological male could list the person as a female, or vice versa. Advocates have also called for allowing labels, such as nonbinary, to describe someone’s gender.

The seven plaintiffs identified themselves as transgender and nonbinary and sued to challenge a Trump executive order that directed, among other things, that sex designation on U.S. passports would be based on “immutable biological factors at conception.”

The plaintiffs claimed President Donald Trump’s order violates the constitutional right to equal protection under the law and violates the right of free movement by potentially restricting travel. They have asked courts to prevent the executive order from taking effect.

In April, U.S. District Court Judge Julia Kobick for the District of Massachusetts gave the plaintiffs a partial victory for their motion on a preliminary injunction to stop the order. The judge, appointed by President Joe Biden, barred the State Department from fully enforcing the passport policy and required that plaintiffs be able to change the designation on their passports.

On Sept. 19, the Trump administration asked the Supreme Court to stay the injunction from the district court that blocked the State Department from enforcing the passport policy.

Trump’s order more broadly stated there are two sexes determined by biological factors—male and female. Trump directed Secretary of State Marco Rubio to enforce the Trump order.

Among other things, the order directed the State Department to apply that to government documents, which would include passports, and other official documents within the federal government.

The plaintiffs were represented by the American Civil Liberties Union.