Judge won't lift her block on Trump admin's anti-trans, anti-nonbinary passport policy

U.S. District Judge Julia Kobick has denied the Trump administration’s request to let the anti-transgender, anti-nonbinary passport policy to go into effect in light of the Supreme Court’s ruling in U.S. v. Skrmetti.

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Kobick, based in Massachusetts, had issued a preliminary injunction against the passport policy in in April, saying it can't be enforced against six of the seven who sued while their lawsuit proceeds, and in June, she granted class certification to plaintiffs who have since been added to the suit as well as almost all trans and nonbinary Americans seeking new passports or changes.

Secretary of State Marco Rubio, in keeping with Donald Trump’s executive order saying the federal government would recognize only two genders, male and female, announced in January that his department, which is in charge of passports, would no longer issue those with an X gender marker and would not allow anyone renewing a passport to change the gender marker.

In her June ruling, Kobick said the State Department must immediately begin issuing passports as it would have January 19, before Trump took office. Under President Joe Biden, the State Department made the X option available to all applicants in 2022 and made it easier to change the gender marker. Kobick is a Biden appointee.

The Department of Justice, representing the federal government, asked Kobick to lift her injunction after the Supreme Court ruled in June in U.S. v. Skrmetti that states could ban gender-affirming care for trans youth and that such bans did not amount to illegal discrimination based on sex or gender identity. The six conservative justices also said the ban should be subject only to rational basis review, the lowest level of scrutiny, instead of intermediate or strict scrutiny.

The judge turned the request down Friday.

“Whether or not Skrmetti alters the Court’s conclusion that the Executive Order and Passport Policy must be reviewed under intermediate scrutiny — an issue on which the Court expresses no opinion — the government has not argued that Skrmetti or any other change in law disturbs the Court’s independent conclusion that [preliminary injunction] Class members are likely to succeed on their claim that the Executive Order and Passport Policy are based on unconstitutional animus toward transgender Americans,” she wrote, as first reported by Law Dork.

The government “has not identified any change in law or fact that alters the Court's conclusion that [preliminary injunction] Class members are likely to succeed on their independent claim that the Passport Policy is arbitrary and capricious, in violation of the [Administrative Procedure Act],” Kobick added.

She further said she would not lift the injunction pending appeal. The Justice Department announced Friday evening that it is appealing her Friday order as well as the one from June. The appeal goes to the U.S. Court of Appeals for the First Circuit.