The Supreme Court on Thursday ruled President Trump’s State Department can prohibit transgender Americans from listing their gender identity on their passports.
The 6-3 decision hands Trump another legal victory in his efforts to eviscerate what his administration calls “gender ideology.” The Justice Department brought the emergency appeal after lower courts blocked the passport policy for being rooted in “irrational prejudice.”
The 6-3 decision by the court’s conservative majority overrides two lower court decisions and the claims of transgender Americans that the policy change is illegal, discriminatory and exposes them to real-world harms, particularly while traveling.
Since 1992, passport applicants have been able to obtain documents with sex markers indicative of their chosen gender identity — when different from sex assigned at birth — by providing doctor certification that they had undergone clinical treatment for gender transition.
“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 Supreme Court wrote in an unsigned, interim opinion.
The challengers of the new policy “have failed to establish that the Government’s choice to display biological sex ‘lacks any purpose other than a bare … desire to harm a politically unpopular group,” the opinion said.
In her dissent, Justice Ketanji Brown Jackson, joined by Justices Sonia Sotomayor and Elena Kagan, accused her colleagues of failing to treat transgender people fairly.
“By preventing transgender Americans from obtaining gender-congruent passports, the Government is doing more than just making a statement about its belief that transgender identity is ‘false,'” wrote Jackson. “The Passport Policy also invites the probing, and at times humiliating, additional scrutiny these plaintiffs have experienced” when going through TSA airport security.
“The documented real-world harms to these plaintiffs obviously outweigh the Government’s unexplained (and inexplicable) interest in immediate implementation of the Passport Policy,” the dissent said.
Jon Davidson, the senior counsel for the ACLU’s LGBTQ & HIV Project, called the court’s action a “heartbreaking setback for the freedom of all people to be themselves, and fuel on the fire the Trump administration is stoking against transgender people and their constitutional rights.”
Solicitor General D. John Sauer called lower rulings blocking the administration’s policy “untenable,” casting them as infringing on Trump’s constitutional authority over foreign affairs.
“The President’s choice to revert to prior policy and rely on biological sex—a choice that bound the State Department—should be the last place for novel equal-protection claims or Administrative Procedure Act objections,” Sauer wrote in court filings.
