The Trump administration’s passport policy for transgender, nonbinary, and intersex Americans has landed before the U.S. Supreme Court, igniting a fierce legal and cultural battle over gender identity, government documentation, and constitutional rights. At the heart of the dispute is whether the federal government should recognize only male and female sexes as assigned at birth on official documents, or allow for self-identification and the inclusion of a nonbinary 'X' marker—a policy that had been in place since 2022.
In January 2025, Secretary of State Marco Rubio issued a directive halting the issuance of passports with an X gender marker and prohibiting any changes to gender markers on existing passports, as reported by The Advocate. This move followed President Donald Trump’s executive order, which mandated that the federal government recognize only two genders—male and female—based on birth sex. The policy marked a dramatic reversal from previous federal guidelines and immediately sparked lawsuits from advocacy groups and affected individuals.
Five transgender and two nonbinary plaintiffs, represented by the American Civil Liberties Union (ACLU), the ACLU of Massachusetts, and Covington and Burling LLP, filed suit in February 2025 in Massachusetts federal court. The case, known as Orr v. Trump, argued that the policy was driven by prejudice and violated the constitutional rights of thousands of Americans. In April, U.S. District Judge Julia E. Kobick issued a preliminary injunction blocking the policy for six of the seven plaintiffs, citing medical testimony that they would suffer irreparable harm. By June, the injunction was expanded to cover almost all transgender and nonbinary applicants nationwide (Washington Blade).
Judge Kobick’s ruling minced no words: “[These policies] are part of a coordinated and rapid rollback of rights and protections previously afforded to transgender Americans, suggesting that these challenged actions are built on a foundation of irrational prejudice toward fellow citizens.” The administration, she wrote, had likely violated the constitutional rights of thousands of Americans.
On September 4, 2025, the U.S. Court of Appeals for the First Circuit upheld the injunction, finding that the government had not “demonstrated a strong likelihood of success” in defending the policy. A separate federal judge in Maryland also ruled against the administration’s passport directive on September 9, after Lambda Legal filed suit on behalf of seven transgender individuals (Washington Blade).
Undeterred, the Trump administration filed an emergency appeal with the Supreme Court on September 19, 2025, seeking to reinstate the passport policy. In its filing, Solicitor General D. John Sauer asserted, “The Constitution does not prohibit the government from defining sex in terms of an individual’s biological classification.” He further argued, “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.”
The administration leaned heavily on the Supreme Court’s recent decision in U.S. v. Skrmetti, which upheld Tennessee’s ban on gender-affirming healthcare for trans minors. According to the Department of Justice’s filing, the Skrmetti decision “reaffirmed” that a policy does not discriminate based on sex if it applies equally to each sex, defining sex for everyone in terms of biology rather than self-identification. The administration’s lawyers contended that the district court’s injunction “has no basis in law or logic” and irreparably harms the government and the public by blocking the President’s authority over passport rules.
While the policy was in force, some transgender people—including high-profile figures like actor Hunter Schafer—were issued passports listing their birth sex, while others faced significant delays, causing disruption and distress. Studies cited by LGBTQ Nation show that trans and nonbinary individuals with incorrect gender markers on government-issued IDs are more likely to experience harassment and violence, underscoring the real-world consequences of such policies.
The ACLU and other advocacy groups have been vocal in their opposition. Jon Davidson, senior counsel for the ACLU’s LGBTQ & HIV Project, stated, “The State Department’s policy is an unjustifiable and discriminatory action that restricts the essential rights of transgender, nonbinary, and intersex citizens… including the freedom to travel safely and the freedom of everyone to be themselves without wrongful government discrimination.” He added, “This administration has taken escalating steps to limit transgender people’s health care, speech, and other rights under the Constitution, and we are committed to defending those rights.”
Legal experts and advocates are watching the Supreme Court closely. Mark Joseph Stern, a legal journalist, predicted on Bluesky that “it is extremely likely that the Supreme Court will freeze the current injunction and allow Trump’s State Department to continue its policy,” noting the Court’s recent tendency to side with the administration on emergency appeals. The Supreme Court, now with a conservative supermajority including three Trump-appointed justices, has handed a series of victories to the Trump administration in recent months, often issuing unsigned “shadow docket” opinions with little explanation—a practice criticized by a group of ten federal judges who said it was “undermining” the judiciary.
Meanwhile, the Court’s engagement with transgender rights extends beyond passports. In June, it ruled in U.S. v. Skrmetti to uphold a Tennessee law banning gender-affirming care for minors, a decision that has led other courts to interpret the logic as potentially applicable to adult healthcare as well. The Supreme Court has also agreed to hear two cases involving transgender youth challenging bans on their participation in school sports under Title IX, with 27 states having passed such laws since 2020 (Washington Blade). Advocates worry these cases could further erode legal protections for transgender people.
For many, the passport policy is emblematic of a broader campaign to roll back LGBTQ rights. The administration’s stance—that sex is “immutable” and defined solely by biology—clashes with the medical consensus that gender identity is distinct from biological sex and that features such as genitals, body shape, and sexual function can be changed via medical intervention. Judge Kobick, in her ruling, acknowledged that while chromosomes and gamete production are immutable, other aspects of sex can be altered, and these often play a larger role in daily life.
As the Supreme Court weighs whether to hear the administration’s appeal, the stakes are high. The outcome will not only determine the future of passport gender markers but could also set a precedent for how the federal government recognizes gender identity across a range of policies. The justices have not yet indicated whether they will take up the case, leaving thousands of Americans in limbo as they await a decision that could shape the nation’s approach to gender, identity, and equality for years to come.
