The U.S. Supreme Court’s recent decision to allow the Trump administration to enforce its controversial passport policy—requiring that only a person’s biological sex at birth be listed—has sent ripples through the legal and LGBTQ+ communities. The ruling, delivered on November 6, 2025, grants a stay of a lower court injunction and marks a significant development in the ongoing legal battle over the rights of transgender and nonbinary individuals to have their gender identities recognized on government documents.
At the heart of the dispute is a Trump-era executive order, signed on the former president’s first day in office, which declared that the United States would only “recognize two sexes, male and female,” and defined “sex” as an “immutable biological classification.” According to HuffPost, the order directed the State Department to ensure that all government-issued identification—including passports, visas, and Global Entry cards—“accurately reflect the holder’s sex” as recorded on their birth certificate. This policy effectively bars transgender and nonbinary individuals from updating their sex markers on passports and eliminates the 'X' designation that had previously allowed for nonbinary identification.
The American Civil Liberties Union (ACLU), representing Ashton Orr and six other transgender and nonbinary plaintiffs, mounted a legal challenge to the policy, arguing that it unconstitutionally discriminates against people based on sex. Lower courts initially sided with the plaintiffs. In April, District Court Judge Julia Kobick temporarily blocked the State Department’s policy, allowing six of the seven plaintiffs in Orr v. Trump to obtain passports with designations that aligned with their gender identity. This injunction was expanded in June to cover all transgender and gender nonconforming people seeking accurate passports, as reported by HuffPost.
The Trump administration, however, quickly sought emergency relief from the Supreme Court after a panel of First Circuit Court of Appeals judges denied its motion to halt the injunction. The administration argued that allowing transgender people to have documentation that reflects their gender identity would force the government “to misrepresent the sex of a nationwide class of individuals in official sovereign-to-sovereign communications.”
In its unsigned majority opinion, the Supreme Court stated, “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 majority rejected the claim that the government’s choice to display biological sex was motivated by a desire to harm a politically unpopular group. Instead, it framed the issue as one of government speech, emphasizing the government’s right to express historical facts on official documents. In the words of the Court, “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 majority also cited irreparable injury to the government if the preliminary injunction remained in place, particularly due to “foreign affairs implications concerning a Government document.” The justices noted that preventing the government from enforcing its executive policy could impair its operations in ways that are not compensable and are thus irreparable, referencing the Court’s previous decision in Trump v. CASA, Inc. This rationale underscores a recurring theme in the Court’s emergency, or “shadow docket,” cases: the presumption that the government suffers irreparable harm when enjoined from enforcing its policies.
Justice Ketanji Brown Jackson, joined by Justices Elena Kagan and Sonia Sotomayor, authored a pointed dissent. She criticized the majority for ignoring the irreparable harm faced by transgender individuals, including the risk of harassment, violence, and travel-related difficulties when passport sex markers do not match a person’s gender presentation. “The Government seeks to enforce a questionably legal new policy immediately, but it offers no evidence that it will suffer any harm if it is temporarily enjoined from doing so, while the plaintiffs will be subject to imminent, concrete injury if the policy goes into effect,” Jackson wrote, as reported by HuffPost.
The dissent further questioned the urgency of immediate enforcement, arguing that the government failed to demonstrate why a uniform definition of sex needed to be imposed without awaiting the outcome of litigation. Justice Jackson and her colleagues asserted that the balance of equities in preliminary injunction cases often involves “incommensurable but irreparable injury by both parties,” and lamented the majority’s lack of engagement with the likelihood of success on the merits.
Jon Davidson, a senior attorney for the ACLU’s LGBTQ & HIV Project, called the ruling “a heartbreaking setback for freedom.” He added, “Forcing transgender people to carry passports that out them against their will increases the risk they will face harassment and violence and adds to the considerable barriers they already face in securing freedom, safety, and acceptance.”
Historically, the State Department only began requiring a “sex” marker on passports in 1976. Under the Biden administration, passport holders were able to self-select their gender markers, including the nonbinary 'X' option, reflecting a broader push for inclusivity. The new policy reverses this progress, returning to a binary system that many advocates and legal scholars argue does not reflect the lived realities of many Americans.
The Supreme Court’s decision in this case also highlights the increasingly frequent use of the emergency docket to resolve politically charged disputes before they are fully litigated in lower courts. According to Justia, the interim-relief docket often features a 6-3 ideological split, with the conservative majority siding with the government and the liberal justices dissenting. Critics argue that the Court’s abbreviated opinions in these cases can obscure the reasoning behind significant decisions and undermine public confidence in the judiciary’s impartiality.
Beyond the immediate passport policy, the Supreme Court is set to weigh in on two other major cases this term involving transgender rights. One case will determine the constitutionality of state bans on transgender girls participating in girls’ sports teams, while another will address whether a Colorado law banning conversion therapy infringes on the free speech rights of a Christian therapist. These cases, like the passport dispute, underscore the ongoing national debate over the legal recognition and protection of transgender and nonbinary Americans.
For now, while litigation continues in the lower courts, the Trump administration’s policy remains in effect. Passport applicants must select male or female designations based on their birth certificates, with no option for nonbinary or gender nonconforming identities. As the legal battle unfolds, the lives of many Americans hang in the balance, waiting for clarity and recognition from the nation’s highest court.
The Supreme Court’s ruling has reignited debates over equal protection, the scope of government speech, and the lived experiences of transgender individuals—issues that promise to remain at the forefront of American legal and political discourse in the months ahead.
