On November 6, 2025, the U.S. Supreme Court’s conservative majority handed down a decision that has sent ripples through the country’s LGBTQ+ community and beyond. In a 6-3 ruling, the justices allowed the Trump administration to enforce a new passport policy requiring that all U.S. passports display sex markers matching an individual’s birth-assigned sex, rather than their gender identity. This emergency order, issued while a lawsuit against the policy proceeds in Massachusetts federal court, immediately lifted a lower court’s block and set the new restrictions into motion.
The policy marks a sharp reversal from more than three decades of State Department practice. Since 1992, Americans could request a sex marker on their passport that differed from their birth certificate if they provided medical documentation. In 2021, under the Biden administration, the process was further liberalized: applicants could select an “X” marker for nonbinary and intersex identities, and documentation requirements were dropped. But in January 2025, President Trump issued an executive order declaring that the U.S. government would recognize only two sexes—male and female—based on birth certificates and “biological classification.” The new rules, as reported by Pride Source and The Associated Press, require all passport sex markers to match sex assigned at birth, eliminating the “X” option and the ability to change markers based on gender identity.
The Supreme Court’s unsigned, four-paragraph order provided little explanation. It stated, “Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth.” The court described the policy as merely attesting to a historical fact, not as an act of discrimination. But the three liberal justices—Ketanji Brown Jackson, Sonia Sotomayor, and Elena Kagan—vigorously dissented. Justice Jackson wrote, “This Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification,” adding that the decision “has become an unfortunate pattern.” She called the ruling a “pointless but painful perversion,” emphasizing the increased risk of violence, harassment, and discrimination that transgender and nonbinary people could now face.
For many, the consequences are not abstract. During the seven months the preliminary injunction was in place, plaintiffs in the lawsuit—Orr v. Trump, et al.—presented evidence of harassment by TSA agents, strip searches, and hostile questioning at airports and customs when traveling with passports that did not match their gender identity. Ashton Orr, the lead plaintiff and a trans man from West Virginia, applied for a passport with a male marker in January 2025, but was told he could only receive a female designation. “Forcing transgender people to carry passports that out them against their will increases the risk that they will face harassment and violence,” said Jon Davidson, senior counsel for the ACLU’s LGBTQ & HIV Project, in a statement quoted by Pride Source.
Transgender actor Hunter Schafer experienced the policy’s impact firsthand. In February 2025, she received a passport listing her as male, despite having used a female marker on her driver’s license and previous passports for years. “By classifying people based on sex assigned at birth and exclusively issuing sex markers on passports based on that sex classification, the State Department deprives plaintiffs of a usable identification document and the ability to travel safely,” attorneys for the plaintiffs argued in court documents, as reported by The Associated Press.
The policy is not without precedent—or controversy—on the global stage. While some countries, such as the United States under the new rules, restrict passports to binary sex markers, others have moved in the opposite direction. The Netherlands began removing gender markers from national identity documents in 2020, determining they were unnecessary for identification. Countries like Germany, Malta, Iceland, Canada, Australia, New Zealand, Argentina, and India currently allow nonbinary or third gender markers on passports.
Supporters of the Trump administration’s policy argue that it is necessary for accurate identification and national security. U.S. Attorney General Pam Bondi welcomed the decision, writing, “In other words: there are two sexes. Our attorneys will continue fighting for that simple truth.” Solicitor General D. John Sauer echoed this sentiment in court documents, stating, “It is hard to imagine a system less conducive to accurate identification than one in which anyone can refuse to identify his or her sex and withhold relevant identifying information for any reason, or can rely on a mutable sense of self-identification.” Sauer also argued that Congress gave the president broad authority over passports, which overlaps with his control of foreign affairs.
Critics, however, see the move as a step backwards for civil rights. Cathryn Oakly, senior director of legal policy at the Human Rights Campaign, condemned the ruling, saying it “serves one purpose: discrimination.” She added, “There is no reason to change it other than malice. It exists to out our transgender friends and loved ones, to make their lives more difficult, to demean and embarrass them at the border, in the airport, and throughout their daily lives.” Sean Ebony Coleman, CEO of LGBTQ+ nonprofit Destination Tomorrow, described the decision as “blatantly unconstitutional” and “deeply demoralizing” for the U.S. trans community. “As a Black trans man living in the United States of America, I am deeply hurt and concerned by the Supreme Court ruling,” Coleman said. “It is another reminder that basic civil human rights for transgender and gender nonconforming Americans is not a ‘mainstream issue’ for too many judges, politicians and policymakers.”
Jay Kaplan, staff attorney for the ACLU of Michigan’s LGBT Project, was equally blunt. “To say that there’s no harm in having to have your biological gender on your passport to transgender people is just like, what planet are you living on?” he told Pride Source. Kaplan also criticized the Supreme Court’s use of the so-called “shadow docket”—an emergency process where the court often provides little explanation for major decisions. “Every time the administration doesn’t like an initial ruling in a case, they go to the Supreme Court on this emergency shadow docket where the court usually doesn’t even offer any explanation for what it does,” he said.
For now, anyone with a valid passport reflecting their gender identity can continue to use it. However, new applications and renewals will be subject to the Trump administration’s restrictions. “If you have a current passport that’s current and operative that reflects your gender identity, that passport is good. You’re able to use that,” Kaplan explained. “But you can’t do it now” for new applications. Plaintiffs and advocacy groups urge anyone experiencing problems with passports or travel to reach out for legal assistance.
The policy’s enforcement comes as the Supreme Court considers another high-stakes case that could affect same-sex marriage rights, further heightening concerns among LGBTQ+ advocates about the direction of the court. Emme Zanotti, director of advocacy at Equality Michigan Action Network, underscored the importance of state-level protections: “Our transgender and non-binary friends, family and neighbors deserve better from their country. But make no mistake, Michigan is a state where transgender and nonbinary people can still freely amend their state-issued IDs and birth certificates to reflect who they are. We at Equality Michigan will work tirelessly to keep it that way.”
As the legal battle continues in federal court, the fate of passport gender markers—and the broader rights of transgender, nonbinary, and intersex Americans—remains uncertain. For those affected, the ruling is more than a bureaucratic change; it is, as many have described, a deeply personal and painful setback. Yet, advocates remain determined, insisting that the struggle for recognition and dignity is far from over.
