A pivotal decision from the Supreme Court has temporarily reinstated a policy requiring individuals to state their biological sex on U.S. passports, marking a significant shift in federal guidelines concerning transgender identity. The 6-3 ruling overturns a previous block imposed by a Massachusetts court, effectively siding with the previous administration’s efforts to tighten regulations impacting transgender individuals.
The court’s majority opinion argued that noting a passport holder’s sex at birth doesn’t violate equal protection laws, drawing a parallel to stating a country of birth – both are considered historical facts without discriminatory intent. This justification hinges on the idea that the government is simply recording a past reality, not imposing differential treatment based on current identity.
However, the decision ignited a fierce dissent from the court’s three liberal justices. Justice Ketanji Brown Jackson delivered a particularly scathing rebuke, accusing her conservative colleagues of a pattern of favoring the previous administration in expedited cases.
Jackson’s dissent argued the majority failed to adequately consider the potential harm inflicted upon transgender individuals, characterizing the intervention as unjustified and detrimental to a vulnerable population. She highlighted that for over three decades, transgender people have been able to reflect their lived gender on their passports.
The underlying lawsuit, brought by a dozen individuals identifying as transgender, nonbinary, or intersex, continues to move through the lower courts. Their core argument centers on the belief that passports should acknowledge the gender individuals currently live and express, rather than the sex assigned at birth.
Legal arguments from the previous administration’s solicitor general asserted that passports serve as a communication tool to foreign governments, and the president shouldn’t be compelled to convey information that contradicts foreign policy objectives or what was termed “scientific reality.”
This policy reversal specifically eliminated the Biden administration’s allowance of an “X” gender marker on passports, representing a return to a more traditional binary system. It was part of a broader series of executive actions aimed at defining gender based on biological sex in areas like sports and military service.
The ruling underscores a growing trend of the Supreme Court granting numerous emergency requests from the Department of Justice, often on an expedited basis. This “shadow docket,” as it’s sometimes called, allows for temporary resolutions while the full merits of cases are examined, raising questions about the court’s approach to urgent legal matters.
