Supreme Court lets Trump block transgender and nonbinary people from choosing passport sex markers

In a significant legal development, the Supreme Court has granted the Trump administration authorization to enforce its policy preventing transgender and nonbinary individuals from selecting passport sex markers that align with their gender identity. The ruling allows the policy to remain in effect while litigation continues through the courts, overturning a lower court’s decision that had required the government to maintain options for choosing male, female, or X markers on passports.

The conservative-majority court determined in its brief, unsigned order that the policy does not constitute discrimination. “Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth,” the court stated. “In both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment.”

The court’s three liberal justices voiced strong opposition to the ruling. Justice Ketanji Brown Jackson wrote in dissent that the policy makes transgender individuals vulnerable to “increased violence, harassment, and discrimination.” Jackson criticized the court’s decision, stating, “This Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.”

The case represents the latest in a string of favorable outcomes for the Trump administration on the Supreme Court’s emergency docket. Since the beginning of Trump’s second term, the high court has sided with the government in nearly two dozen short-term orders across various policy areas, including another case that barred transgender people from military service.

The State Department implemented the passport policy change following President Trump’s January executive order declaring that the United States would “recognize two sexes, male and female,” based on birth certificates and “biological classification.” The order has had immediate effects on individuals like transgender actor Hunter Schafer, who reported in February that her new passport had been issued with a male gender marker, despite having female markers on her driver’s license and previous passport for years.

Plaintiffs in the case argue that forcing transgender individuals to use passports that don’t match their gender identity creates dangerous situations. Jon Davidson, senior counsel for the ACLU’s LGBTQ & HIV Project, called the ruling “a heartbreaking setback for the freedom of all people to be themselves,” adding that it adds “fuel on the fire the Trump administration is stoking against transgender people and their constitutional rights.”

The history of sex markers on U.S. passports dates back to the mid-1970s. The federal government began allowing changes to these markers with medical documentation in the early 1990s. A significant policy shift occurred in 2021 under the Biden administration, which removed documentation requirements and introduced an X gender marker option for nonbinary individuals after years of litigation.

A federal judge initially blocked the Trump administration’s policy in June following a lawsuit from transgender and nonbinary people, some of whom expressed fear about submitting passport applications under the new rules. An appeals court maintained this block until the Supreme Court’s intervention.

In defending the policy to the Supreme Court, Solicitor General D. John Sauer referenced the court’s recent decision upholding a ban on transition-related healthcare for transgender minors and characterized the Biden-era policy as inaccurate.

The Biden administration’s White House spokeswoman Anna Kelly celebrated Thursday’s order as “a victory for common sense and President Trump,” claiming he was elected to “eliminate woke gender ideology from our federal government.” Similarly, Attorney General Pam Bondi praised the decision, stating there are two sexes and that Justice Department attorneys would continue to defend that “simple truth.”

The ruling highlights ongoing tensions between transgender rights advocates and the Trump administration’s approach to gender identity issues, with significant implications for how federal documents represent individual identities.