Supreme Court allows Trump to ban transgender Americans from choosing gender markers on passports

WASHINGTON (AP) — The Supreme Court on Thursday allowed President Donald Trump’s administration to impose a policy that bars transgender and nonbinary people from choosing gender markers on their passport that correspond with their gender identity.

The conservative-majority court’s decision is Trump’s latest victory in the Supreme Court’s emergency rule, and means his administration can enforce the policy while litigation over it plays out. It stays a lower court order requiring the government to continue allowing people to choose male, female, or X in their passports to align with their gender identity on new or renewed passports. The court’s three liberal justices dissented.

Read more: Federal judge blocks Trump’s passport policy affecting transgender Americans

In a brief, unsigned order, the court said the policy did not appear to discriminate against transgender people. “Displaying passport holders’ sex at birth does no more offend the principles of equal protection than displaying their country of birth,” she said. “In both cases, the government merely attests to a historical fact without subjecting anyone to preferential treatment.”

The court’s three liberal justices disagreed, saying in dissent that passports that only list sex at birth leave transgender people vulnerable to “increased violence, harassment, and discrimination.”

“This Court has once again set the stage for immediate harm without adequate justification (or indeed any justification), saying that the policy stems directly from Trump’s executive order that called transgender identity ‘false’ and ‘corrosive,’” Justice Ketanji Brown-Jackson wrote.

The State Department changed its rules on passports after Trump, a Republican, issued an executive order in January declaring that the United States “will recognize two sexes, male and female,” based on birth certificates and “biological classification.”

Transgender actress Hunter Schiffer, for example, said in February that her new passport was issued with a male gender marker, even though she had had a female marker on her driver’s license and passport for years.

The plaintiffs argue that passports limited to the sex listed on the birth certificate could spark harassment or even violence for transgender people.

“By classifying people based on the sex assigned at birth and issuing sex labels exclusively on passports based on that sex classification, the State Department deprives Plaintiffs of a usable identity document and the ability to travel safely,” the lawyers wrote in court documents.

Sex marks began appearing on passports in the mid-1970s, and the federal government began allowing them to be changed with medical documents in the early 1990s, prosecutors said in court documents. A 2021 change under Democratic President Joe Biden removed documentation requirements and allowed nonbinary people to choose their X gender marker after years of litigation.

A judge blocked the Trump administration’s policy in June after a lawsuit filed by nonbinary and transgender people, some of whom said they were afraid to come forward. The Court of Appeal left the judge’s order in effect.

Then the Attorney General, Dr. John Sawyer to the Supreme Court, citing its recent ruling upholding a ban on transition-related health care for transgender minors. He also said Congress gave the president control over passports, which interfered with his authority over foreign affairs.

“It is difficult to imagine a system less conducive to precise identification than one in which a person can refuse to identify his or her sex and withhold relevant identifying information for any reason, or can rely on a variable sense of self-identification,” Sawyer wrote in court documents.