WASHINGTON (AP) — The Supreme Court on Thursday allowed President Donald Trump’s administration to enforce a policy that prevents transgender and nonbinary people from choosing passport gender markers that match their gender identity.
The decision is Trump’s latest victory in the court’s emergency filing and allows the government to enforce the policy while litigation over it is ongoing. That stops a lower court order requiring the government to continue giving people the choice of being male, female or The court’s three liberal justices disagreed.
The Supreme Court has sided with the administration in nearly two dozen short-term orders on a range of policies since the start of Trump’s second term, including another case barring transgender people from military service.
In a brief, unsigned order, the conservative-majority court said the policy was not discriminatory. “Indicating the gender of passport holders at birth does not violate the principles of equal protection more than indicating their country of birth,” it said. “In both cases, the government is simply witnessing a historical fact without subjecting anyone to unequal treatment.”
The court’s three liberal justices disagreed, saying in a dissent that these passports leave transgender people vulnerable to “increased levels of violence, harassment and discrimination.”
“This court has once again paved the way for the immediate infliction of injury without adequate (or, for that matter, any) justification,” wrote Judge Ketanji Brown Jackson, saying the policy was directly attributable to Trump’s executive order that described transgender identity as “wrong” and “corrosive.”
Transgender and nonbinary people who have sued over the policy have reported being sexually abused, strip-searched and accused of presenting false documents during airport security checks, she wrote.
The majority said it hurts the government not to be able to enforce the policy because passports fall within the realm of foreign policy, an area where courts have shown deference to the executive branch. But the dissenters said it was not clear exactly how individual identification documents would affect the country’s foreign policy.
The State Department changed its passport rules after Trump, a Republican, issued an executive order in January saying the United States would recognize “two genders, male and female,” based on birth certificates and “biological classification.”
Transgender actress Hunter Schafer, for example, said in February that her modern passport had been given a male gender marker, even though she had been identified as female on her driver’s license and passport for years.
The plaintiffs argue that these passports are incorrect and could be perilous to people whose gender expression does not match what is stated in the documents.
“Forcing transgender people to carry passports against their will increases the risk that they will be subjected to harassment and violence,” said Jon Davidson, senior counsel for the ACLU’s LGBTQ and HIV Project. “This is a heartbreaking setback to the freedom of all people to be themselves and fuel to the fire the Trump administration is stoking against transgender people and their constitutional rights.”
Gender markers first appeared on passports in the mid-1970s, and the federal government began changing them with medical records in the early 1990s, the plaintiffs said in court documents. A 2021 change under President Joe Biden, a Democrat, eliminated documentation requirements and allowed non-binary people to choose an X gender marker after years of legal battles.
A judge blocked the Trump administration’s policy in June after a lawsuit from non-binary and transgender people, some of whom said they were afraid to file applications. An appeals court let the judge’s order stand.
Attorney General D. John Sauer then turned to the Supreme Court, citing its recent ruling upholding a ban on transition-related health care for transgender minors. He also argued that Congress had given the president control over passports, which overlapped with his authority over foreign affairs.
“It is difficult to imagine a system less conducive to accurate identification than one in which anyone can refuse to declare their gender and withhold relevant identifying information for any reason or rely on a variable sense of self-identification,” Sauer wrote in court documents.
Attorney General Pam Bondi welcomed the order, saying there are two genders and Justice Department lawyers will continue to fight for this “simple truth.”
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