Supreme Court Upholds Trump Policy Ending “X” Gender Marker on Passports

The Supreme Court has permitted the Trump administration to enforce its policy that eliminates the use of the “X” gender marker on U.S. passports. This decision, made on March 15, 2023, comes as a result of a 6-3 ruling that temporarily halts a lower court’s order which had allowed passport applicants to choose a designation reflecting their gender identity, including the “X” option for nonbinary individuals.

The high court’s order effectively reinstates a directive issued by former President Donald Trump earlier this year. This directive mandates that passports must indicate the holder’s “biological sex at birth,” meaning applicants are limited to the traditional “M” or “F” designations. The justices noted that the government is likely to prevail in the case, emphasizing that recording biological sex on passports does not violate equal protection principles.

In its unsigned decision, the court stated, “Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth.” The ruling highlighted that the plaintiffs had not successfully demonstrated that the government’s approach was solely intended to harm transgender individuals.

This policy shift has its roots in a legal battle initiated by seven transgender and nonbinary individuals who filed a lawsuit against the administration in February. They argued that the new policy was unconstitutional and contravened federal law. Their lawsuit sought to revert to the previous policy established under the Biden administration, which allowed individuals to self-select their sex designation on passports.

U.S. District Judge Julia Kobick, who was appointed by President Biden, initially sided with the plaintiffs in April. She issued a temporary order indicating that the State Department had failed to provide a rational explanation for the policy change and suggested that it discriminated against transgender people. In her decision, Kobick emphasized the government’s rejection of the identities of transgender Americans.

Following this ruling, Kobick extended her injunction to cover individuals seeking passports that aligned with their gender identity or those wishing to select the “X” designation. The Trump administration, however, argued that the district court’s ruling encroached upon presidential foreign policy powers.

Solicitor General D. John Sauer contended that the passport policy is “eminently lawful” and that the injunction from the Boston judge obstructed the administration’s ability to communicate with foreign governments accurately. He argued that the definition of sex in the policy is based on biological considerations rather than self-identification.

In contrast, the plaintiffs’ legal team asserted that the State Department has historically permitted adjustments to passport sex markers in alignment with an applicant’s gender identity. They argued that the current policy not only strips individuals of a usable identification document but also compromises their safety while traveling.

The implications of the Supreme Court’s ruling extend beyond individual cases. It sets a significant precedent regarding the intersection of government policy and individual rights, particularly in relation to transgender and nonbinary individuals. The situation remains fluid, with further developments anticipated as the legal proceedings continue.