I’ve been occupied the last couple of days at the Federalist Society’s national lawyers convention, but just wanted to quickly highlight three important rulings issued yesterday:
1. In a per curiam order in Trump v. Orr, the Supreme Court granted the Trump administration a victory in its defense of its policy that requires all new passports to display a person’s biological sex. A district court in Massachusetts had issued a preliminary injunction barring the Trump administration from enforcing its policy. The Supreme Court granted the administration’s request for a stay of the preliminary injunction. So the administration may enforce the policy as the appellate process continues.
Here’s one important passage from the Court’s brief 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.”
Justice Jackson, joined by Justices Sotomayor and Kagan, dissented.
2. By a vote of 10 to 7, the en banc Sixth Circuit ruled (in Defending Education v. Olentangy Local School District) that a school district may not punish students for the “commonplace use of biological pronouns” to refer to transgender and nonbinary classmates. The majority opinion by Judge Eric Murphy holds that the school district fell “far short” of showing that the use of biological pronouns “would disrupt school functions or qualify as harassment under Ohio law.” The school district was thus discriminating against student speech based on viewpoint in violation of the First Amendment.
There are also several concurring opinions that I look forward to reading with care.
3. A divided Fifth Circuit panel ruled in Woodlands Pride v. Paxton that a district court wrongly enjoined Texas officials from enforcing a state law that regulates sexually oriented performances on public property and in the presence of minors. The majority (opinion by Judge Kurt Engelhardt, joined by Judge Leslie Southwick) held that the plaintiffs had standing to assert their claims only against the Texas attorney general and that the district court had failed to conduct the proper inquiry into whether the one provision of the law that the attorney general could enforce was facially invalid. It therefore vacated the injunction and remanded the matter to the district court.