Supreme Court allows Trump to end policy of self-identifying gender on passports
The Supreme Court on Thursday allowed the Trump administration to end for now a policy under which people can self-identify their gender on passports, the latest in a string of decisions by the high court rolling back gay and transgender rights.
The justices’ decision revives an executive order by President Donald Trump that required passports to reflect a person’s sex as listed on their birth certificate. A lower court had blocked Trump’s policy. The high court’s order will remain in effect while the legal fight over the Trump policy plays out in the lower courts.
“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 majority wrote.
The unsigned order did not reveal which justices voted to allow Trump’s policy to go forward, but the court’s three liberals dissented. Justice Ketanji Brown Jackson objected that the majority had not properly weighed the harms in the case.
“The Government seeks to enforce a questionably legal new policy immediately, but it offers no evidence that it will suffer any harm if it is temporarily enjoined from doing so, while the plaintiffs will be subject to imminent, concrete injury if the policy goes into effect,” Jackson wrote.
The Biden administration had allowed passport holders to self-identify their gender with an M, F or X designation. The last indicates a person is nonbinary, intersex or gender-nonconforming.
Trump’s order, signed on Inauguration Day, reversed that policy, which “has no basis in law or logic,” Solicitor General D. John Sauer wrote in a filing with the high court.
“Private citizens cannot force the government to use inaccurate sex designations on identification documents that fail to reflect the person’s biological sex - especially not on identification documents that are government property and an exercise of the President’s constitutional and statutory power to communicate with foreign governments,” Sauer wrote.
In a major decision over the summer, the high court upheld Tennessee’s ban on gender transition treatment for minors. That ruling bolstered the government’s position in the passport case, Sauer argued.
The Tennessee ruling found that a policy does not discriminate based on sex if it applies equally without treating any member of one gender worse than a similarly situated member of the other. Sauer wrote that Trump’s order meets that test because it applies equally, “defining sex for everyone in terms of biology rather than self-identification.”
Trump’s order declared that U.S. policy is “to recognize two sexes, male and female.” After his order, the State Department required that passports be issued only with a gender identity of M or F that corresponded to the holder’s “biological sex at birth.”
A dozen transgender, nonbinary and intersex people filed a class-action lawsuit seeking to block the Trump initiative, saying it discriminated on the basis of sex.
“I’ve lived virtually my entire adult life as a man,” plaintiff Reid Solomon-Lane said in a statement at the time the lawsuit was filed. “If my passport were to reflect a sex designation that is inconsistent with who I am, I would be forcibly outed every time I used my passport for travel or identification, causing potential risk to my safety and my family’s safety.”
A federal judge in Massachusetts issued a preliminary injunction finding that the policy displayed “unconstitutional animus” toward transgender people and violated equal-protection guarantees in the Constitution.
That ruling was upheld by an appeals court before the Trump administration filed its emergency appeal with the Supreme Court.
The Supreme Court has steadily rolled back protections for gay and transgender people in recent rulings. Earlier this year, the justices allowed the Trump administration to ban transgender soldiers from the military while litigation over the policy proceeds.
The justices also ruled that religious parents can opt their children out of school lessons featuring books with LGBTQ+ themes that conflict with the parents’ religious beliefs.
The justices are weighing two major cases this term that deal with gay and transgender issues. In one, they will rule on the constitutionality of state bans on transgender people playing on girls’ and women’s sports teams in schools and universities.
In the other, the court will decide whether Colorado violated the free-speech rights of a Christian therapist by banning conversion therapy for minors, which aims to change the sexual or gender identity of gay and transgender young people.
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