The Supreme Court on Thursday granted the Trump administration authority to implement its policy restricting passport gender markers to male or female based on sex assigned at birth. The decision represents a significant shift from previous federal policy that allowed broader gender identity options.
The unsigned order from the conservative majority court stated that displaying passport holders’ sex at birth does not violate equal protection principles, comparing it to displaying country of birth as an attestation to historical fact without differential treatment. The ruling permits enforcement while the underlying lawsuit continues through lower courts.
The court’s three liberal justices dissented from the decision. Justice Ketanji Brown Jackson authored a dissenting opinion arguing the government offered no evidence it would suffer harm from temporary injunction, while plaintiffs face imminent, concrete injury if the policy takes effect.
Jackson’s dissent noted the policy invites probing and potentially humiliating additional scrutiny that transgender plaintiffs have experienced when going through Transportation Security Administration (TSA) airport security. She documented reports from transgender and nonbinary plaintiffs who were sexually assaulted, strip searched, and accused of presenting fake documents at security checkpoints.
Since 1992, the State Department has allowed people under certain circumstances to choose male or female markers that don’t correspond to their genders at birth. The Biden administration introduced the X option in 2021 and removed the requirement for medical proof of gender transition.
President Donald Trump announced the rollback on his first day in office, January 20, declaring people must have passports reflecting their genders at birth. The White House statement praised the ruling as a victory for common sense and elimination of what it termed woke gender ideology from federal government.
Attorney General Pam Bondi stated on X that the decision reflects the administration’s view that there are two sexes, pledging attorneys will continue fighting for that position.
The policy was challenged by several transgender people who alleged violations of their Fifth Amendment equal protection rights and the Administrative Procedure Act (APA). Ashton Orr, a transgender man from West Virginia, serves as the named plaintiff after applying for a passport with a male sex marker in January and receiving notification in February that only a female marker would be available.
United States District Judge Julia Kobick, a Biden nominee, initially blocked the policy in June after finding it classified applicants on the basis of sex and warranted higher judicial scrutiny. The Boston based First US Circuit Court of Appeals declined to pause that ruling while litigation continued.
Solicitor General D. John Sauer argued to the Supreme Court that the lower court order injures the United States by compelling it to speak to foreign governments contrary to presidential foreign policy and scientific reality. He referenced the court’s recent ruling upholding a ban on transition related health care for transgender minors and argued Congress gave the president control over passports, which overlap with foreign affairs authority.
Chase Strangio, representing the challengers, argued the policy puts transgender, nonbinary, and intersex people in potential danger whenever they use a passport. Jon Davidson, a lawyer at the American Civil Liberties Union (ACLU) representing transgender plaintiffs, called the decision a heartbreaking setback for freedom of all people to be themselves and fuel on the fire the administration is stoking against transgender constitutional rights.
The Trump policy effectively means transgender people, even those who have fully transitioned with medical records as proof, cannot have gender markers corresponding with their identities. Transgender actor Hunter Schafer stated in February that her new passport was issued with a male gender marker despite years of having female marked on her driver’s license and passport.
The high court has sided with the government in nearly two dozen short term orders on various policies since the start of Trump’s second term, including another case barring transgender people from serving in the military. Neither decision represents the final word on the legal cases, only short term determinations about what happens while cases continue.
Source: newsghana.com.gh
