Denial of Equal Protection Continues for Transgenders

Justice Jackson explained that she would have rejected the government’s request because “the documented real-world harms to these plaintiffs obviously outweigh the government’s unexplained (and inexplicable) interest in immediate implementation of the passport policy.”

The Supreme Court has issued an order allowing the Trump administration to immediately enforce a policy that blocks transgender and nonbinary people from choosing a passport sex marker that aligns with their gender identity. This decision is a temporary measure while a lawsuit challenging the policy continues to play out in lower courts, but it means that for the time being, individuals generally cannot self-identify their gender on new or renewed passports. 
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Details of the Ruling

• Policy Reinstated: The Supreme Court's unsigned order, issued on November 6, 2025, halts a lower-court preliminary injunction that had required the government to continue allowing people to select male, female, or "X" gender markers. The Trump administration policy, based on a January 2025 executive order, mandates that passports must reflect the sex assigned at birth.
• Court's Reasoning: The conservative majority stated that displaying a passport holder's sex at birth "no more offends equal protection principles than displaying their country of birth".
• Dissent: The three liberal justices dissented, with Justice Ketanji Brown Jackson writing that the decision "paved the way for the immediate infliction of injury without adequate (or, really, any) justification" and highlighted the "documented real-world harms" to transgender individuals forced to use incorrect identification.
• Ongoing Litigation: The Supreme Court's order is not a final ruling on the merits of the case but an emergency order that allows the administration's policy to take effect during the ongoing legal challenge. 

Impact on Applicants

• Gender Marker Options: Currently, for most applicants, the State Department will only issue passports with "M" or "F" designations that match evidence of sex assigned at birth. The "X" gender marker option previously available under the Biden administration is largely suspended.
• Exceptions: A federal court order in the class-action lawsuit Orr v. Trump provides an exception for a specific class of transgender, nonbinary, and intersex people who can submit an attestation form to request an "M", "F", or "X" sex designation that aligns with their gender identity.
• Existing Passports: Passports that were previously issued with an "X" marker or a sex designation different from the sex assigned at birth remain valid for travel until their expiration date. 

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