The justices granted President Donald Trump and Secretary of State Marco Rubio's emergency application and paused a Massachusetts federal judge's preliminary injunction that barred the administration from rescinding a longtime State Department policy of allowing passport applicants to request an "M" or "F" — or, more recently, an "X" — sex designation in line with their gender identity.
Thursday's order allows the administration to implement its new policy of only issuing passports that reflect the applicants' sex assigned at birth while two nationwide classes of transgender and nonbinary individuals challenge it in court. The classes claim the policy change violates the Fifth Amendment's equal protection clause and the Administrative Procedure Act, as well as the Paperwork Reduction Act.
Individuals who already have passports that reflect their gender identity can use the documents until they expire.
A majority of justices found the Trump administration would suffer "a form of irreparable injury" without the high court's intervention, but didn't elaborate on what exact harm would occur. The fact that the passport policy has "foreign affairs implications" also played into the majority's decision to grant the stay, according to an unsigned order.
"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 court said.
Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented, saying the court's decision allows the Trump administration to implement a "questionably legal new policy immediately" without any evidence that the government would be harmed if it were barred temporarily from doing so.
"The court nonetheless fails to spill any ink considering the plaintiffs, opting instead to intervene in the government's favor without equitable justification, and in a manner that permits harm to be inflicted on the most vulnerable party," Justice Jackson wrote for the trio.
She added in a nearly 12-page dissent that the district judge who issued the challenged preliminary injunction had done so "reasonably," after the classes provided evidence that their members already have faced and would continue to face harms such as harassment at airport security lines and restricted abilities to travel, open a bank account, rent a car or start a job — all activities that Justice Jackson noted "may require a passport."
"The documented real-world harms to these plaintiffs obviously outweigh the government's unexplained (and inexplicable) interest in immediate implementation of the passport policy," Justice Jackson said. "That incongruity is where equity comes in."
"But, today," she continued, "the court refuses to answer equity's call. In my view, the court's failure to acknowledge the basic norms of equity jurisdiction is more than merely regrettable. It is an abdication of the court's duty to ensure that equitable standards apply equally to all litigants — to transgender people and the government alike."
Jon W. Davidson, senior counsel for the ACLU's LGBTQ & HIV project and an attorney for the policy's challengers, called the Supreme Court's ruling a "heartbreaking setback," in a statement on Thursday.
"Forcing transgender people to carry passports that out them against their will increases the risk that they will face harassment and violence and adds to the considerable barriers they already face in securing freedom, safety, and acceptance," he said. "We will continue to fight this policy and work for a future where no one is denied self-determination over their identity."
A White House spokesperson didn't immediately respond to requests for comment.
Since the 1990s, applicants have been allowed to obtain passports reflecting their gender identity after providing various types of documents, such as medical records and statements from doctors. But since 2021, applicants could rely on their own assertion of gender identity, and for the first time, nonbinary and intersex individuals could request an "X" sex designation.
Trump's Legal Battles
States, federal employee unions, various advocacy groups and several individuals have filed lawsuits challenging the Trump administration's implementation of executive orders and other initiatives. Law360 has created a database of those lawsuits, separated into categories based on their subject matter.
U.S. District Judge Julia E. Kobick originally granted a preliminary injunction to only the named plaintiffs in April, but she later expanded the order in June to cover the two nationwide classes. On Sept. 4, the First Circuit denied Trump's request to stay the nationwide injunction pending an appeal.
Trump and Rubio defended the administration's policy reversal in a September emergency application, calling it "eminently lawful," because no provision of the U.S. Constitution prohibits the government from defining sex in terms of an individual's "biological classification." They added that the Passport Act empowers the president to decide what information should be included on passports and how the documents should be issued.
The policy change is also unreviewable under the Administrative Procedure Act, the administration argued. Trump's executive order doesn't qualify as a final agency action that can be challenged in court, and neither are the State Department's "ministerial" actions implementing the executive order.
Two nationwide classes of transgender and nonbinary individuals, led by named plaintiff Ashton Orr, countered in an Oct. 6 response brief that constitutional questions regarding the content of passports are indeed reviewable by courts, as the Supreme Court determined in a 2012 decision.
The new policy can't pass muster under the APA, because it lacks any fact-based reasoning and drips with transgender animus, the class claimed. It also violated the Fifth Amendment's equal protection clause by discriminating on the basis of sex, they said.
But ultimately, the classes argued that the administration's policy change and the State Department's attempt to quickly align its procedures with the new policy didn't constitute an emergency situation in which the justices had to intervene.
The case will now return to the First Circuit, where proceedings have been stayed due to the government shutdown that started Oct. 1.
The government is represented by D. John Sauer of the U.S. Solicitor General's Office.
The transgender and nonbinary individuals classes are represented by Isaac D. Chaput and Robert C. Gianchetti of Covington & Burling LLP, Jon W. Davidson and Li Nowlin-Sohl of the American Civil Liberties Union, and Jessie J. Rossman of the ACLU of Massachusetts.
The case is Trump et al. v. Orr et al., case number 25A319, in the Supreme Court of the United States.
--Editing by Nicole Bleier.
Update: This story has been updated with more information from the Supreme Court's ruling, the posture of the case in the First Circuit and comment from counsel.