In a 6-3 decision Thursday, the U.S. Supreme Court granted an emergency stay order requiring all new passports to display an individual’s biological sex at birth.
The vote upholds President Donald Trump’s executive order, requiring the federal government to recognize “male” and “female” as biological sex instead of people to mark their perceived gender.
A lower court in Massachusetts had blocked the policy, claiming the new passport policy violated the Equal Protection Clause in the Constitution and the federal Administrative Procedure Act.
Upon the high court’s decision, ACLU Masachussets released a statement saying the decision will “cause immediate, widespread, and irreparable harm to all those who are being denied accurate identity documents.” The civil liberties organization added, the new passport policy “is an unlawful attempt to dehumanize, humiliate, and endanger transgender, nonbinary, and intersex Americans.”
However, a legal brief filed with the Supreme Court by 26 states, called sex a “useful category of information,” adding that the government “must be able to adopt some consistent definition of the term rather than let individuals be definitions unto themselves.”
Utah Attorney General Derek Brown signed onto the brief, which encouraged the Supreme Court to greenlight the new passport policy. “This Court should grant the stay and clarify that no constitutional principle requires government-issued papers to serve as canvases for self-expression,” the brief said.
What is the history of sex markers on passports?
For decades before 1992, passport applicants were required to check “M” or “F” on their passport applications. Then, during George H.W. Bush’s administration, the policy was updated to allow applicants to submit evidence of surgical sex reassignment, if they wanted a marker other than male or female.
In 2010, then-Secretary of State Hillary Clinton eased the policy to require only a doctor’s note saying the individual was transitioning genders, as Politico reported.
Then in 2021, under former President Joe Biden, the State Department allowed all passport applicants to self-select their preferred sex marker.
Justice Ketanji Brown Jackson writes a dissent
Justices Sonia Sotomayor and Elena Kagan joined Judge Ketanji Brown Jackson in her dissent against the majority’s decision to temporarily uphold Trump’s executive order.
Jackson wrote, “The documented real-world harms to these plaintiffs obviously outweigh the Government’s unexplained (and inexplicable) interest in immediate implementation of the Passport Policy.”
She referenced instances where transgender travelers felt they were targeted by TSA officers because their passport sex did not match how they identified.
“Zaya Perysian has been subjected to invasive pat-downs by TSA agents to confirm her gender after they observed the disjunction between her female gender expression and the male sex marker on her passport,” Jackson wrote.
She added that two others had been accused by the TSA of presenting fake identity documents “and were forced to out themselves as transgender and nonbinary to TSA agents.”
Jackson said the new passport policy gives transgender people only two options: “use gender-incongruent passports and risk harassment and bodily invasions” or “avoid all activities (travel, opening a bank account, renting a car, starting a new job) that may require a passport, on the other.”
The new passport policy will hold until the Supreme Court issues a final ruling based on the merits phase of litigation, which is currently at the U.S. Court of Appeals for the First Circuit.