The U.S. Supreme Court has allowed a policy requiring passport applicants to list their sex as designated on their birth certificate to proceed. This decision overturns a lower court order that had temporarily blocked the policy, which allowed applicants to choose M for male, F for female, or X for neither.
Policy Background
Sex markers on U.S. passports have been in use since 1976. For over 30 years, citizens could request a passport reflecting their gender identity rather than the sex on their birth certificate. The option to use an "X" marker was introduced in 2021 under the Biden administration.
Legal Challenge and Arguments
- Plaintiffs' Position: A group of plaintiffs, led by Ashton Orr, a transgender man, challenged the policy. They argued that it would negatively impact transgender and non-binary individuals, hinder the government's ability to identify citizens, and was motivated by unconstitutional discrimination, violating the Fourteenth Amendment's equal protection clause. Orr's attorneys stated that the policy undermines passports' purpose as identity documents and is aimed at rejecting the identity of transgender Americans. They highlighted the government's acknowledgement that "outing of transgender, intersex, and nonbinary individuals" was central to the policy.
- Government's Position: The government filed an emergency request with the Supreme Court after the U.S. Court of Appeals for the First Circuit declined to block the lower court's order. The government contended that the injunction harmed the United States by compelling it to convey information to foreign governments contrary to the President's foreign policy and scientific perspectives.
Supreme Court's Ruling
On Thursday, the Supreme Court signaled agreement with the administration's arguments by permitting the biological sex passport policy to take effect while litigation continues in lower courts. This is not a final ruling on the policy's legality. The vote was 6-3 along ideological lines.
In an unsigned order, the 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."
Justice Ketanji Brown Jackson authored a dissenting opinion, joined by two other justices, referring to the order as an "undue exercise of our equitable discretion." She wrote that the Court had "paved the way for the immediate infliction of injury without adequate (or, really, any) justification."