The Trump administration’s latest legal maneuver has thrust transgender and nonbinary Americans’ rights to the forefront of a national debate, as it appeals to the Supreme Court to uphold a policy restricting the sex markers available on U.S. passports. The move comes after a series of lower court rulings blocked the administration’s efforts to limit passport gender choices to only "male" or "female," eliminating the option for an "X" marker that had been introduced during the Biden administration to accommodate nonbinary, intersex, and gender non-conforming individuals.
On September 19, 2025, the Justice Department filed an emergency appeal to the Supreme Court, seeking to overturn an injunction that has prevented the government from enforcing its restrictive passport policy. The administration’s argument is rooted in a January 2025 executive order from President Donald Trump, which declared that the federal government recognizes only two sexes—male and female—and that these are "not changeable and are grounded in fundamental and incontrovertible reality," according to CNN.
The State Department, acting on this executive order, suspended processing of passport applications that sought the "X" gender marker—a move that reversed the Biden-era policy, which had allowed Americans from April 2022 onward to select "X" as their gender marker on federal identification documents. The Trump administration’s policy change was swiftly met with lawsuits, as affected individuals and advocacy groups challenged what they described as a rollback of rights and protections for transgender and nonbinary Americans.
Earlier in 2025, U.S. District Judge Julia Kobick, a Biden appointee, issued a nationwide injunction blocking the administration’s passport policy. In her ruling, Judge Kobick wrote, "[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." She further noted that the policy classified applicants on the basis of sex and therefore warranted higher judicial scrutiny.
Kobick’s decision was not just about the technicalities of passport issuance; she highlighted the real-world harms faced by those affected. According to her ruling, individuals forced to use passports with sex markers that do not reflect their gender identity would face “irreparable harm … from their inability to use their passports anywhere without outing themselves.” She elaborated that these individuals are likely to encounter “anxiety, psychological distress, discrimination, harassment, or violence any time they use their passports, not simply because they face these risks when using their passports for international travel.” As CNN reported, passports are often required for non-travel purposes such as renting a car or opening a bank account, making the impact of the policy far-reaching.
On September 4, 2025, a federal appeals court in Boston upheld Judge Kobick’s injunction, ruling that the government had not demonstrated a strong likelihood of success in its appeal. The court also noted, though not central to its decision, that the government failed “to engage meaningfully” with the lower court’s claims that the policy might violate the Constitution’s Equal Protection Clause. The Trump administration’s legal team, led by Solicitor General D. John Sauer, argued in their Supreme Court filing that the injunction "has no basis in law or logic" and would force the government to issue “inaccurate” documents. Sauer wrote, “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 further cited the Supreme Court’s June 2025 decision in U.S. v Skrmetti, which upheld Tennessee’s ban on transition healthcare for transgender minors. In that 6-3 ruling, the Court found that banning such treatments for trans children, but not for cisgender children, did not constitute sex discrimination. The Justice Department argued that this precedent supports their position that the passport policy does not discriminate based on sex, contending, “As this Court reaffirmed in United States v. Skrmetti, a policy does not discriminate based on sex if it applies equally to each sex without treating any member of one sex worse than a similarly situated member of the other.”
Throughout its filings, the administration has maintained that biological sex is “immutable,” emphasizing that the Constitution allows the government to define sex in terms of biological classification. As noted in reporting by PinkNews and CNN, the administration’s stance is that the basic fact of whether someone produces sperm or eggs, or their chromosomal makeup, cannot be changed, and therefore should be the basis for official documentation. However, critics point out that many aspects of sex, such as genitals, body shape, and sexual function, can be altered through hormonal or surgical intervention—and these characteristics often play a larger role in day-to-day social recognition and treatment.
The Supreme Court, which currently has a conservative supermajority including three Trump-appointed justices, is now being asked to weigh in on the issue. Over the past nine months, the Court has handed a series of victories to the Trump administration, often offering little or no explanation for its reasoning. This trend has not gone unnoticed: earlier in September 2025, a group of ten federal judges issued a rare public critique of the Supreme Court’s use of unsigned "shadow docket" opinions, accusing the Court of “undermining” lower courts and “throwing [them] under the bus.”
While the Trump administration’s policy was in effect, some transgender individuals—including high-profile figures like Hollywood star Hunter Schafer—were issued passports listing them as their birth sex, while others experienced significant delays in obtaining passports at all, according to PinkNews. The human impact of these bureaucratic decisions has been a central theme in the legal battles and public debate surrounding the issue.
Supporters of the administration’s approach argue that official documents should reflect biological reality and that the government has a duty to ensure the accuracy of information presented to foreign governments. They contend that allowing self-identification could undermine the reliability of federal identification and complicate international relations.
On the other side, advocates for transgender and nonbinary rights emphasize the profound harm caused by policies that force individuals to use documents that do not match their gender identity. They argue that such measures are discriminatory, increase the risk of violence and harassment, and represent a step backward in the struggle for equal treatment under the law.
As the Supreme Court considers whether to take up the case, the outcome could have far-reaching implications for how gender is recognized in official documents and, more broadly, for the rights and recognition of transgender and nonbinary Americans. The decision will not only affect those seeking accurate passports, but could also set a precedent for how the federal government approaches issues of sex and gender in the years ahead.
With passions running high on both sides and the legal landscape shifting rapidly, all eyes are now on the Supreme Court to see whether it will step in—and, if so, how it will rule on one of the most contentious civil rights issues of the current era.
