The Supreme Court on Thursday reinstated the Trump administration’s mandate that passports must identify individuals by their biological sex.
The High Court paused a lower court’s ruling that blocked the passport policy from being implemented while it is adjudicated in the 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 court said in an unsigned order.
The three liberal justices dissented.
The policy is born out of President Trump’s day one executive order that requires the federal government to only recognize two sexes. The order also declares that sex is not changeable.
Trump then ordered the State Department to issue passports that “accurately reflect the holder’s sex” based on that definition, in a reversal of a Biden-era policy that had allowed individuals to change their gender marker without even the need for a medical documentation, or to choose a nonbinary “X” identification marker.
U.S. District Judge Julia Kobick, a Biden appointee in Boston, previously ruled the Trump passport policy is “based on irrational prejudice toward transgender Americans.”
The Justice Department argued Kobick’s decision was wrong and interfered with Trump’s ability to conduct foreign policy.
“Self-evident foreign-policy consequences flow from forcing the Executive to misrepresent biological facts to foreign states and to create the misimpression that the Executive endorses gender identity,” wrote John Sauer, the administration’s top appellate lawyer, in his appeal to the Supreme Court.
Sauer also argued in court documents that it is “hard to imagine a system less conducive to accurate identification than one in which anyone can refuse to identify his or her sex and withhold relevant identifying information for any reason, or can rely on a mutable sense of self-identification.”
Attorneys representing the plaintiffs challenging the policy called the measure discriminatory and argued it would deprive people of the ability to travel safely.
“By classifying people based on sex assigned at birth and exclusively issuing sex markers on passports based on that sex classification, the State Department deprives plaintiffs of a usable identification document and the ability to travel safely,” attorneys wrote in court documents.