The Supreme Court has ruled in favor of the Trump administration's policy that requires the sex listed on a U.S. passport to match the holder's biological sex as indicated on their birth certificate. This decision reverses lower court rulings in a 6-3 vote, which took place on Thursday. The high court's action halts the implementation of a policy from the Biden administration that allowed passport applicants to select their gender identity, including an "X" for unspecified sex.
"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's 13-page order expressed that any delay in enforcing the Trump-era rule could result in "irreparable injury" to the federal government. This ruling granted the administration's emergency request to reinstate the original passport guidelines. Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson were the dissenters in the case.
The issue originated when the Biden administration, starting in 2021, permitted American citizens to self-select the sex marker on their passports. This initiative was expanded in the following year to include an "X" option for individuals identifying as nonbinary or who chose not to specify a gender. However, this move was blocked by lower courts in Massachusetts and the First Circuit, which deemed the Trump policy unlawful. Following the refusal of these courts to lift their injunctions, the administration appealed to the Supreme Court, which has now ruled in its favor.
The majority opinion clarified that marking a person’s sex at birth does not infringe upon constitutional protections. They argued that displaying the biological sex is akin to stating the country of birth; both are historical facts and do not subject individuals to different treatment. Additionally, the Court mentioned that the rule has implications for foreign affairs, suggesting the government's judgment in these matters warrants deference.
In contrast, Justice Jackson, in her dissent, argued that the ruling could lead to immediate harm. She contested the urgency the administration claimed and highlighted the potential significant harm for trans-identifying Americans. Jackson questioned the necessity of sex markers on passports and emphasized the real-world consequences for the plaintiffs.
This ruling does not conclude the legal battle but lifts an injunction previously issued by U.S. District Judge Julia Kobick, appointed by President Biden, who had blocked the enforcement of the policy. Judge Kobick had labeled the policy "arbitrary and capricious" and indicative of bias against transgender persons.
The American Civil Liberties Union, which filed the lawsuit in February, maintains that the requirement for birth-sex identifiers on passports is a violation of equal protection guarantees and administrative law. The lawsuit is centered on the legitimacy of the government function served by reinstating the biological marker and whether it unfairly targets transgender individuals.
The legal and cultural debate over gender markers in federal identification has seen shifts for decades. In 1992, under President George H.W. Bush, the State Department allowed changes to gender markers with proof of gender reassignment surgery. The Biden officials later removed these medical requirements, permitting self-selection.
As the case proceeds through the lower courts, the Supreme Court's decision enables the Trump administration to enforce its passport policy immediately. This decision highlights the ongoing legal and cultural divide regarding the definition of sex in official documents, with the Court seemingly favoring a return to biological standards.
