Trump Administration asks Supreme Court to reinstate biological sex rule for US passports

The Biden administration’s changes to US passport rules are at the center of a new Supreme Court fight, after the Trump Administration on Friday asked the justices to put a Massachusetts federal court ruling on hold.

Under President Joe Biden, the State Department allowed Americans to self-select the sex marker on their passports, regardless of medical or biological documentation.

The policy enabled individuals to obtain passports consistent with their gender identity rather than their actual sex, and, in 2022, created a third “X” designation for “nonbinary” applicants — those who want to be seen as beyond gender. The rule departed from scientific reality and undermined consistency in government records.

On Jan. 20, President Donald Trump rescinded that policy with an executive order declaring that the United States would recognize “two sexes, male and female” for identification purposes. The order stated that “sex” refers to immutable biological classification and directed federal agencies, including the State Department, to issue documents such as passports, visas, and Global Entry cards reflecting biological sex.

The directive quickly faced legal challenges. A group of plaintiffs led by Ashton Orr, a “transgender” individual, sued in federal court in Massachusetts. US District Judge Julia Kobick initially blocked the State Department from applying Trump’s policy to the plaintiffs, later expanding her order to bar enforcement against all transgender and nonbinary designations nationwide. She concluded the challengers were likely to succeed on their claims that the rule violated both constitutional equal protection guarantees and federal administrative law.

The 1st US Circuit Court of Appeals declined to suspend Kobick’s injunction while the case proceeds. In response, US Solicitor General D. John Sauer urged the Supreme Court to intervene, calling the Trump policy “eminently lawful” and rooted in the government’s longstanding interest in maintaining accurate, biologically based identification.

Sauer cited the Supreme Court’s June ruling in United States v. Skrmetti, which upheld Tennessee’s ban on certain medical treatments for transgender minors. That decision, Sauer argued, made clear that a law or policy does not discriminate based on sex if it applies equally to both sexes under the same definition. The passport rule, he said, applies uniformly by requiring documentation to reflect biological sex, not self-identified gender.

He also rejected the lower court’s conclusion that the rule was animated by hostility toward transgender people, calling it a rational policy choice grounded in immutable facts.

Finally, he told the justices that Kobick’s injunction should not remain in force because the plaintiffs had not demonstrated immediate or irreparable harm, noting that the order covered people without specific travel plans or medical diagnoses.

The Supreme Court is expected to decide soon whether to grant the Trump Administration’s request to pause the lower court’s ruling while litigation continues.