SCOTUS allows Trump to constrain passport sex designations : NPR

The US Supreme Court on Thursday cleared President Trump's plan to require passport applicants to identify their gender as listed on their birth certificate. The court's decision overturns a lower court ruling that suspended Trump's policy and allowed applicants to choose for themselves whether they want to identify with the letter M for male, the letter F for female or the letter X for nothing.

Male and female gender markers began appearing on passports in 1976. For more than 30 years, the government has allowed citizens to request a passport that shows their gender identity, rather than the sex listed on their birth certificate. However, the decision to use the letter “X” did not come until 2021 under President Biden.

Led by Ashton Orr, a transgender man who was falsely accused by airport security of using a fake passport while traveling with a passport that listed his gender as female, the nationwide group of plaintiffs argued that Trump's policies would harm transgender and nonbinary people, harm the government's ability to identify citizens, and were motivated by unconstitutional transphobia in violation of the Fourteenth Amendment's equal protection guarantees.

“The challenged policy undermines the very purpose of passports as identification documents that officials check against the holder’s physical appearance,” Orr’s lawyers said in their briefs. “It aims to reject the identity of an entire group—transgender Americans—that has always existed.” The government, Orr's lawyer notes, acknowledged that “identifying transgender, intersex and non-binary people” was a “core element of the policy.”

The government filed an emergency petition to the Supreme Court after the 1st U.S. Circuit Court of Appeals declined to block a lower court ruling that halted Trump's policies. The government said “the injunction harms the United States by forcing it to talk to foreign governments in violation of both the President's foreign policy and scientific reality.”

With Thursday's decision, the Supreme Court signaled it likely agrees with the administration. However, the court's decision is not final; it simply allows Trump's biological sex passport policy to take effect while litigation continues in lower courts.

The vote was 6-3 along ideological lines.

“Displaying passport holders' sex at birth is no more violative of equal protection principles than showing their country of birth,” the court said in the unsigned ruling, “in both cases the government is simply stating a historical fact without subjecting anyone to differential treatment.”

Justice Ketanji Brown Jackson wrote a dissent, joined by the court's two other liberals. She called the order “a senseless but painful perversion of our fair discretion.”

“This court has once again paved the way for immediate harm without adequate (or any) justification,” she wrote.