Sarah Toce
The Supreme Court of the United States on Thursday allowed the federal government to enforce a policy that prohibits transgender and nonbinary Americans from choosing a passport sex marker that aligns with their gender identity, at least while lower-court litigation continues.
What the ruling does
The court issued a brief, unsigned order that vacates or stays the lower-court injunction which had required the United States Department of State to continue accepting passport applications with sex markers of “M”, “F” or “X” based on gender identity.
In adopting the government’s position, the majority reasoned that indicating the sex assigned at birth on a passport is no more problematic under equal-protection principles than listing one’s country of birth.
Background
In January, Trump issued an executive order directing federal agencies to recognize only two sexes—male and female—based on “immutable biological classification” and to eliminate recognition of gender identity on federal documents.
The State Department accordingly adopted a policy to require passports to bear the sex assigned at birth and to suspend issuance of the “X” non-binary marker.
Earlier in June, a federal judge in Boston, Julia Kobick, ruled the policy likely violated the constitutional rights of transgender and nonbinary individuals and issued a nationwide injunction allowing new passports to reflect self-selected gender markers including “X”.
The government appealed, and now the Supreme Court has allowed it to pause that ruling while the appeal proceeds.
What it means in practice
- Transgender and nonbinary U.S. citizens may be forced, at least for now, to use passports that list male or female according to their sex assigned at birth—even if that does not match their gender identity.
- Earlier-issued passports with an “X” marker or one matching gender identity remain valid until expiration, but new or renewed documents may be subject to the government’s policy.
- Civil-rights groups warn the policy may expose transgender and nonbinary travelers to increased risks of stigma, harassment or safety issues when their passports don’t match their gender presentation. In dissent, the liberal justices emphasized the vulnerability of transgender passport holders to “increased violence, harassment and discrimination.”
Reactions
The White House welcomed the decision, framing it as a restoration of what it calls “common sense” around gender classification in federal documents. Meanwhile, advocacy groups described the decision as a painful setback for the rights of transgender and nonbinary Americans.
What’s next
Legal proceedings continue in the lower courts. The case now heads back to the appeals process, and how the policy will be implemented and challenged remains uncertain. Until the litigation concludes, transgender and nonbinary Americans may face unequal access to identification documents, with corresponding practical and safety implications.
Bottom line: The Supreme Court’s order doesn’t permanently uphold the policy but allows the government to enforce it for now. The broader constitutional question—whether forcing a sex marker that does not align with a person’s gender identity constitutes unconstitutional discrimination—remains unresolved and will be litigated further.
