Topline
Transgender and nonbinary people will not be able to select passport sex markers aligned with their gender identity following a Supreme Court ruling Thursday, meaning passports will be required to match the sex on the holder’s birth certificate while litigation continues.
The ruling was issued Thursday afternoon. (Photo by Al Drago/Getty Images)
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Key Facts
The Supreme Court decision halted a lower court ruling that required the federal government to make male, female and X markers available on passports, the latter of which was used by transgender and nonbinary people.
Justices backing the Trump administration said in an unsigned order “displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth.”
Plaintiffs in the case have argued that passports limited to two sexes can result in violence or harassment against transgender people.
Justices Ketanji Brown Jackson, Sonia Sotomayor and Elena Kagan dissented.
Contra
“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,’” Justice Ketanji Brown Jackson wrote in her dissent. “The Passport Policy also invites the probing, and at times humiliating, additional scrutiny these plaintiffs have experienced.” Later, Brown noted that the “documented real-world harms to these plaintiffs obviously outweigh the Government’s unexplained (and inexplicable) interest in immediate implementation of the Passport Policy.”
Key Background
In 1992, the government began allowing transgender Americans to apply for passports with a gender other than the one assigned at birth if they presented medical evidence they had undergone surgical sex reassignment treatment. The State Department opened this policy further in 2010, allowing transgender Americans to apply for a new passport with documentation they were undergoing any clinical treatment to transition. In 2021, the Biden administration scrapped these requirements altogether, allowing Americans to identify with any gender of their choice on the document. The Trump administration quickly reversed these rules after the president took office in January. Trump issued an executive order on his first day in office requiring official documentation to reflect an individual’s “sex,” which it defined as “an individual’s immutable biological classification as either male or female.” The order was quickly challenged in court by a class action lawsuit, which remains ongoing.