The Supreme Court on Thursday afternoon handed the Trump administration another victory on the justices’ interim docket. In a brief, unsigned opinion, the court granted the government’s request to temporarily put on hold rulings by a federal judge in Massachusetts that would have required the State Department to issue passports to transgender and nonbinary Americans that reflect the sex designation of their choosing. “Displaying passport holders’ sex at birth,” the majority said, “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 Ketanji Brown Jackson dissented, in an opinion joined by Justices Sonia Sotomayor and Elena Kagan. She contended that the majority had “once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification. Because I cannot acquiesce to this pointless but painful perversion of our equitable discretion,” she wrote, “I respectfully dissent.”
U.S. District Judge Julia Kobick issued the orders at the center of the case earlier this year in a lawsuit brought by seven individual transgender and nonbinary plaintiffs. They challenged an executive order, issued by President Donald Trump on Jan. 20, indicating that the federal government would only “recognize two sexes, male and female.” The order also instructed the State Department to “require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex.”
The policy was a reversal from one adopted during the Biden administration, which had permitted transgender people to receive passports that reflected their gender identity without providing any medical documentation and added a third gender marker – “X” – for nonbinary applicants.
The challengers went to federal court, where they alleged that the new policy violated their rights to equal treatment under the Constitution, their rights to international travel and informational privacy, and the federal law governing administrative agencies.
Kobick initially barred the federal government from enforcing the new passport policy against six of the seven individual plaintiffs while the litigation continued. (Kobick concluded that the seventh plaintiff would not be harmed if the passport policy remained in place for now because that person’s passport is consistent with his gender identity and will not expire until 2028.) Approximately two months later, Kobick extended her order, prohibiting the government from enforcing the policy against a broader group of transgender and nonbinary people who have applied or would apply for a passport consistent with their gender identity.
The U.S. Court of Appeals for the 1st Circuit declined a request from the Trump administration to temporarily pause Kobick’s order. That prompted U.S. Solicitor General D. John Sauer to come to the Supreme Court on Sept. 19, asking the justices to step in. Sauer told the court that Kobick’s order “injures the United States by compelling it to speak to foreign governments in contravention of both the President’s foreign policy and scientific reality.” And, by contrast, he argued, there would be no harm to the challengers from putting Kobick’s order on hold while the litigation continues, because Kobick’s definition of the groups covered by her order does not require “either concrete plans to travel internationally or a diagnosis of gender dysphoria.”
Representing the challengers, lawyer Chase Strangio urged the justices to leave Kobick’s order in place. The new passport policy, Strangio wrote, “puts transgender, nonbinary, and intersex people in potential danger whenever they use a passport.” Moreover, he contended, “the government has never explained how passport sex markers that align with gender identity, including the sex the person lives as and outwardly expresses, could possibly affect foreign relations—when the challenged policy undermines the very purpose of passports as identity documents that officials check against the bearer’s appearance.”
Nearly a month after the Trump administration filed its reply brief, the court issued a brief opinion granting the government’s request to pause Kobick’s order. Not only does the passport policy not violate the challengers’ right to equal treatment, the four-paragraph opinion explained, but the facts in the case did not show that the policy of requiring a passport to display the holder’s biological sex can only be explained by “a bare . . . desire to harm a politically unpopular group” – the relatively rare scenario in which the Supreme Court has struck down a government policy under the least stringent constitutional standard, known as rational-basis review. The challengers are also not likely to prevail on their argument that the policy violates the federal law governing administrative agencies because it is “arbitrary and capricious” (that is, illogical or unreasonable), the court continued. In issuing the policy, the court suggested, the State Department was merely following the rules outlined in Trump’s executive order.
The Trump administration is thus “likely to succeed on the merits” of its defense against the challengers’ claims, the court wrote. And because Kobick’s order “enjoins enforcement of an Executive Branch policy with foreign affairs implications concerning a Government document,” the court said, the government “will ‘suffer[] a form of irreparable injury’” if the order is not paused.
Jackson countered that the court had asked the wrong questions in determining whether to grant the government’s request. “Our task in deciding stay applications,” she wrote, “is not simply to make a ‘back-of-the-napkin assessment of which party has the better legal argument.’ Rather the actual nub of the project … is to fairly determine whether the applicant’s showing justifies our extraordinary intervention.” Such a calculation, she said, requires the justices to “consider not only the applicant’s likelihood of success on the merits, but also whether the applicant will suffer irreparable harm absent emergency intervention, as well as the relative harm to the parties and the public interest in the grant or denial of a stay.”
In this case, Jackson continued, the government has argued only that, with Kobick’s order in place, “the President cannot, at least for now, enact his preferred policies regarding sex markers on U.S. passports.” But the government has not explained, she stressed, “why it faces harm unless the President’s chosen policy is implemented now. It suggests that there is an urgent foreign policy interest in dictating sex markers on passports, but does not elaborate as to what that interest might possibly be.”
By contrast, Jackson wrote, the challengers “have shown they will suffer concrete injuries if the Government’s Passport Policy is immediately enforced” – the inability to obtain passports with sex markers that match their gender identity. This can lead to significant psychological issues, Jackson said, as well as the possibility of “increased violence, harassment, and discrimination.”
“In my view,” Jackson concluded, “the Court’s failure to acknowledge the basic norms of equity jurisdiction is more than merely regrettable. It is an abdication of the Court’s duty to ensure that equitable standards apply equally to all litigants—to transgender people and the Government alike.”
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