Supreme Court rules Trump may remove transgender markers from new passports

WASHINGTON- The Supreme Court has authorized President Trump to remove transgender designations from new passports and require applicants to indicate that they were male or female at birth.

By a 6-3 vote, the justices granted another emergency appeal from Trump’s lawyers and stayed a Boston judge’s order that blocked the president’s new passport policy from taking effect.

“Displaying passport holders’ gender at birth does not undermine the principles of equal protection any more than displaying their country of birth,” the court said in an unsigned order. “In both cases, the government is content to attest to a historical fact without subjecting anyone to differential treatment. »

Justice Ketanji Brown Jackson filed a dissent, joined by Justices Sonia Sotomayor and Elena Kagan.

She said there was no emergency and the passport policy change would pose a danger to transgender travelers.

“The current record demonstrates that transgender people who use gender-incongruent passports are exposed to increased violence, harassment and discrimination,” she wrote. “Airport checkpoints are stressful and intrusive for travelers under normal circumstances, even without the added friction of being required to present government-issued identification documents that do not reflect one’s identity.

“So, by preventing transgender Americans from obtaining passports consistent with their gender, the government is doing more than simply expressing its belief that transgender identity is “wrong.” The passport policy also invites the increased, and sometimes humiliating, scrutiny to which these complainants were subjected.

Upon taking office in January, Trump ordered the military to remove transgender troops from its ranks and directed agencies to remove references to “gender identity” or transgender people from government documents, including passports.

The Supreme Court implemented both policies by overturning judges’ orders that had temporarily blocked the changes as discriminatory and unconstitutional.

American passports did not have a gender designation until the 1970s. Since then, most of the time, passport holders have had two choices: “M” for male and “F” for female. Starting in 1992, the State Department allowed applicants to designate a sex marker different from their sex at birth.

In 2021, the Biden administration added an “X” marker as an option for transgender and non-binary people.

Trump sought to return to earlier times. He issued an executive order against “ideological gender extremism” and declared that his administration would “recognize two sexes, male and female.” It required that “government-issued identity documents, including passports,” “accurately reflect the gender of the holder” assigned at birth.

The ACLU filed a lawsuit on behalf of transgender people who would be affected by the new policy. They won a ruling in June from U.S. District Judge Julia Kobick that blocked the new policy from taking effect.

The transgender plaintiffs “seek the same thing that millions of Americans take for granted: passports that allow them to travel without fear of misidentification, harassment, or violence,” ACLU attorneys said in an appeal to the Supreme Court last month.

They said the administration’s new policy would reduce the usefulness of passports for identification.

“By classifying people based on sex assigned at birth and exclusively assigning sex markers on passports based on that classification, the State Department deprives plaintiffs of a usable identification document and the ability to travel safely…{This} undermines the very purpose of passports as identity documents that authorities check against the bearer’s appearance,” they wrote.

But Attorney General D. John Sauer argued that the plaintiffs had no authority over the official documents. He said judges should overturn the judge’s order and allow the new policy to take effect.

“Private citizens cannot force the government to use inaccurate gender designations on identity documents that do not reflect the person’s biological sex – especially not on identification documents that are government property and constitute an exercise of the President’s constitutional and statutory authority to communicate with foreign governments,” he wrote.