Federal judge baffled by Supreme Court order targeting trans Americans’ passports

A circuit court judge has asked the U.S. Supreme Court to clarify how a recent emergency order impacts transgender residents suing the State Department for not allowing their passports to display gender markers aligned with their identity.

Last November, the Supreme Court allowed the Trump administration to stop issuing passports to transgender residents who do not feature a gender marker aligned with their sex assigned at birth.

The policy reversed a standard established under President Joe Biden in which trans residents were able to update their passports to reflect their gender identity, and where the letter “X” could be used as the gender marker for nonbinary applicants, according to the legal news website SCOTUSblog.

After the Trump administration attempted to block the policy, a district judge filed an injunction that allowed trans residents to continue receiving passports aligned with their gender identity pending litigation, until the Supreme Court’s intervention last November.

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On Tuesday, Judge Seth Aframe of the U.S. Court of Appeals for the First Circuit in Boston asked lawyers for the plaintiffs in the initial lawsuit over the policy whether they needed additional clarification, as the court had not yet issued a final ruling on their case, according to Law.com.

Lawyers for the plaintiffs confirmed that they would like clarification that the Supreme Court’s order does not end their lawsuit over whether the policy discriminates against trans residents. The attorneys have argued that Trump’s passport policy enforces stereotypes around sex and gender.

“For that reason alone, there would be a benefit in simply saying that the claims aren't foreclosed,” attorney Malita Picasso, of the American Civil Liberties Union Foundation, told Law.com.

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Related: Judge expands block on Donald Trump's anti-trans, anti-nonbinary passport policy

The Justice Department has argued that the circuit court should rule that the lawsuit is no longer viable due to the Supreme Court’s order. Lawyers for the plaintiffs argue their case should be heard, since no final ruling has been issued over whether the policy violates the Equal Protection Clause of the Constitution.

For his part, Aframe expressed confusion about how a court order could block the plaintiffs from proceeding with their lawsuit.

“I don't understand the argument that a stay from the Supreme Court on the likelihood of success on the merits precludes a district court from doing whatever they think is right after a full airing of all of the issues in the trial and whatever else may happen,” he said.