SCOTUS Allows the Trump Administration to Enforce Two-Gender Passport Policy

The Supreme Court on Thursday allowed the Trump administration to require that sexual markers on U.S. passports align with the traveler’s biological sex — effectively eliminating a Biden-era policy that allowed citizens to choose an ‘X’ marker denoting their nonbinary identity.

The 6-3 ruling is a massive blow to transgender rights advocates, who have argued the policy is unconstitutional, and a setback for LGBTQ+ rights.

“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 court said in a four-paragraph opinion.

In opposition, Justice Ketanji Brown Jackson, a Biden appointee, penned a dissent, along with fellow liberal justices Sonia Sotomayor and Elena Kagan.

“Such senseless sidestepping of the obvious equitable outcome has become an unfortunate pattern,” Jackson wrote. “So, too, has my own refusal to look the other way when basic principles are selectively discarded … This court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.”

Earlier this year, seven nonbinary and transgender individuals filed a lawsuit in federal court challenging President Donald Trump’s executive order recognizing only two sexes — male and female — and asked the State Department to “require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex.”

The policy around gender markers on passports has relaxed significantly in recent decades.

In 1992, the State Department required medical documentation of gender-affirming surgery in order for an applicant to choose the sex matching their gender identity. Former President Barack Obama altered the policy in 2010 to only require proof of clinical treatment for gender dysphoria, and the Biden administration further relaxed the policy in 2021, getting rid of the documentation requirement and introducing the ‘X’ marker for nonbinary applicants.

The Trump administration asked the Supreme Court on Sept. 19 to step in, protesting a lower court’s ruling prohibiting enforcement of the policy while litigation was ongoing.

In her dissent Thursday, Jackson argued the plaintiffs “have shown they will suffer concrete injuries if the Government’s Passport Policy is immediately enforced. The current record demonstrates that transgender people who use gender-incongruent passports are exposed to increased violence, harassment, and discrimination.”

“In my view,” Jackson concluded, “the Court’s failure to acknowledge the basic norms of equity jurisdiction is more than merely regrettable. It is an abdication of the Court’s duty to ensure that equitable standards apply equally to all litigants — to transgender people and the Government alike.”