Supreme Court lets Trump administration end use of “X” gender marker on passports
Washington — The Supreme Court on Thursday allowed the Trump administration to enforce for now its policy ending the use of the “X” marker on passports and requiring the documents to reflect the passport-holder’s “biological sex at birth.”
The high court agreed to freeze a lower court order that stopped the State Department from enforcing the policy put into place by President Trump earlier this year. The injunction allowed transgender or nonbinary people seeking passports to self-select the sex designation — “M,” “F” or “X” — that aligns with their gender identity.
The court appeared to split 6-3 in the decision, with the three liberal justices in dissent.
“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 decision. “And on this record, respondents have failed to establish that the Government’s choice to display biological sex ‘lack[s] any purpose other than a bare . . . desire to harm a politically unpopular group.'”
The court said in its order that the Trump administration is likely to succeed on the merits of the case and said that the district court’s decision to provide broad relief blocks enforcement of an executive branch policy “with foreign affairs implications concerning a Government document.”
The Trump administration had argued that the district court in Massachusetts interfered with the president’s exercise of his foreign policy powers with its June order. It also said it has been the government’s policy since 1977 — with the exception of during the Biden administration — to not allow passport applicants to self-select their preferred sex designation.
“Private citizens cannot force the government to use inaccurate sex designations on identification documents that fail to reflect the person’s biological sex — especially not on identification documents that are government property and an exercise of the President’s constitutional and statutory power to communicate with foreign governments,” Solicitor General D. John Sauer wrote in a filing with the Supreme Court.
