US supreme court lets Trump block passport sex markers for trans and non-binary people | US supreme court

The supreme court on Thursday allowed Donald Trump’s administration to enforce a policy blocking transgender and non-binary people from choosing passport sex markers that align with their gender identity.

The decision by the high court’s conservative majority is Trump’s latest win on the high court’s emergency docket, and it means his administration can enforce the policy while a lawsuit over it plays out. It halts a lower-court order requiring the government to keep letting people choose male, female or X on their passport to line up with their gender identity on new or renewed passports.

Pam Bondi, the US attorney general, hailed the decision, saying in a post on X: “Today’s stay allows the government to require citizens to list their biological sex on their passport. In other words: there are two sexes, and our attorneys will continue fighting for that simple truth.”

Meanwhile, the court’s three liberal justices dissented, with Justice Ketanji Brown Jackson calling the decision a “pointless but painful perversion”.

She added: “Such senseless sidestepping of the obvious equitable outcome has become an unfortunate pattern. So, too, has my own refusal to look the other way when basic principles are selectively discarded. This Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.

“What the Government needs (and what it does not have) is an explanation for why it faces harm unless the President’s chosen policy is implemented now. It suggests that there is an urgent foreign policy interest in dictating sex markers on passports, but does not elaborate as to what that interest might possibly be,” Jackson wrote.

“As is also becoming routine, this court misunderstands the assignment,” she added.

The state department changed its passport rules after Trump, a Republican, handed down an executive order in January declaring the United States would “recognize two sexes, male and female”, based on birth certificates and “biological classification”.

Transgender actor Hunter Schafer, for example, said in February that her new passport had been issued with a male gender marker, even though she has been marked female on her driver’s license and passport for years.

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

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

Sex markers began appearing on passports in the mid-1970s and the federal government started allowing them to be changed with medical documentation in the early 1990s, the plaintiffs said in court documents. A 2021 change under Joe Biden, a Democrat, removed documentation requirements and allowed non-binary people to choose an X gender marker after years of litigation.

A judge blocked the Trump administration policy in June after a lawsuit from non-binary and transgender people, some of whom said they were afraid to submit applications. An appeals court left the judge’s order in place.

The solicitor general, D John Sauer, then turned to the supreme court, pointing to its recent ruling upholding of a ban on transition-related healthcare for transgender minors. He also argued Congress gave the president control over passports, which overlaps with his authority over foreign affairs.

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

Since taking office in January, Trump has ramped up attacks against LGTBQ+ communities across the country. In October, his administration threatened to pause federal funding unless states remove references to gender identity and the existence of transgender and non-binary people from a federal sex education program.

At least 11 states and two territories acquiesced to Trump’s demands. Meanwhile, 16 states and Washington DC sued the administration over the demand.

The Associated Press contributed reporting