The U.S. Supreme Court on Nov. 6 allowed the Trump administration to enforce its policy requiring the sex designation on a U.S. passport to be consistent with the passport holder’s sex at birth.
Three justices—Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor—dissented from the new ruling.
“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 order states.
The order temporarily stays a June 17 order by the U.S. District Court in Massachusetts, which is now under appeal in the U.S. Court of Appeals for the First Circuit.
The respondents—represented by the American Civil Liberties Union and other activist groups—had argued that the policy was unconstitutional and that forcing someone to use a passport that differs from their self-identified sex could expose them to psychological harm.
An individual might be physically harmed as well, they said, if that person visited a country where transgenderism was frowned upon, and their appearance did not match their passport’s sex marker.
U.S. District Judge Julia Kobick of Massachusetts ruled against the government and blocked Trump’s order in April, but only as to the respondents involved in the case.
Dissenting Opinion
Jackson wrote a dissenting opinion, which Kagan and Sotomayor joined.
After the federal government sought an emergency stay of a federal district court’s preliminary injunction blocking a policy, this court “misunderstands the assignment,” Jackson said.
Over the last 33 years and six presidents, “transgender Americans have been able to obtain U.S. passports with sex markers that match their gender identity.”
The justice said from 1992 to 2010, applicants who wanted passports with sex markers that were “different from the sex assigned to them at birth” had to provide evidence of “surgical reassignment.”
In 2010, the U.S. Department of State began allowing applicants to file a doctor’s certification stating “they had undergone clinical treatment for gender transition.” By 2021, the department was allowing applicants to choose the sex marker consistent with their gender identity without any additional requirements.
According to federal regulations, a passport is supposed to “attest to the identity and nationality of the bearer,” Jackson said.
The State Department’s sex marker policies, she said, have long demonstrated that “what is important for identification purposes is the bearer’s gender identity today.”
