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Passport and travel documents with transgender flag pin
The policy against gender-neutral markers or gender changes been blocked by a lower court.
Donald Trump’s administration has filed an emergency appeal with the U.S. Supreme Court asking it to reinstate a passport policy that doesn’t recognize transgender, nonbinary, or intersex identities.
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The policy had been blocked by a nationwide injunction from a federal judge in Massachusetts, and an appeals court declined to lift the injunction.
In January, Secretary of State Marco Rubio directed his staff to stop issuing passports with an X gender marker, which had been available since 2022, and said the State Department would no longer allow passport holders to change their gender marker. Existing passports would remain valid, but new or renewed passports would not reflect the holder’s gender identity. The policy was in keeping with Trump’s executive order saying the federal government would recognize only male and female sexes as assigned at birth.
Related: Here's how trans Americans can get accurate passports... for now.
Five trans people and two who are nonbinary filed suit against the policy in February in U.S. District Court in Massachusetts. In the case, known as Orr v. Trump, they are represented by the American Civil Liberties Union, the ACLU of Massachusetts, and the law firm of Covington and Burling LLP.
U.S. District Judge Julia Kobick issued a preliminary injunction in April blocking the policy for six of the seven people who sued — those who doctors said would suffer irreparable harm under the policy. In June, she expanded the injunction to cover almost all trans and nonbinary applicants. The policy is motivated by prejudice and “likely violates the constitutional rights of thousands of Americans,” she wrote. In September, the U.S. Court of Appeals for the First Circuit refused to lift Kobick’s injunction.
In the administration’s appeal to the Supreme Court, filed Friday, U.S. Solicitor General D. John Sauer contended that the injunction “has no basis in law or logic. Private citizens cannot force the government to use inaccurate sex designations on identification documents that fail to reflect the person’s biological sex — especially not on identification documents that are government property and an exercise of the President’s constitutional and statutory power to communicate with foreign governments.”
Sauer called the passport policy “eminently lawful” and entirely rational, adding, “it is not discrimination based on sex to define a person’s sex as the person’s immutable biological classification rather than the sex with which the person self-identifies.”
Related: Over 80 U.S. House members rally against Trump's anti-transgender passport policy
Jon Davidson, senior counsel for the ACLU’s LGBTQ & HIV Project, released a statement saying, “As the lower courts have found, the State Department’s policy is an unjustifiable and discriminatory action that restricts the essential rights of transgender, nonbinary, and intersex citizens.
“This administration has taken escalating steps to limit transgender people’s health care, speech, and other rights under the Constitution, and we are committed to defending those rights including the freedom to travel safely and the freedom of everyone to be themselves without wrongful government discrimination.”
The justices have not said if they will hear the appeal.
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