Washington — The Trump administration on Friday asked the Supreme Court to allow it to enforce for now its policy ending the use of the “X” marker on passports and requiring the documents to reflect the passport-holder’s “biological sex at birth,” changes that affect transgender and nonbinary Americans.
The high court’s emergency appeal seeks to lift a lower court order that prevented the State Department from enforcing the policy, which was put into place after President Trump returned to the White House in January. The court order allowed transgender or nonbinary people seeking passports to self-select the sex designation — “M,” “F” or “X” — that aligns with their gender identity.
The policy from Mr. Trump was a reversal from the Biden administration, which allowed the selection of M, F or X. The X marker was intended for passport applicants who are nonbinary, or those who don’t identify as strictly male or female.
Under an executive order signed by Mr. Trump earlier this year, “sex” was defined as an “individual’s immutable biological classification as either male or female.” It directed the State Department to make changes to require that government-issued documents like passports “accurately reflect the holder’s sex,” effectively prohibiting the government from allowing applicants to choose a sex marker based on their gender identity.
In the wake of that directive, the State Department stopped issuing passports with the X marker and changed applications to offer only the M or F markers. It also adopted procedures for using an applicant’s sex that matches their birth certificate or other documents.
Seven transgender and nonbinary people sued the administration in February over the new passport policy, alleging that the change was unconstitutional and violated federal law. They sought an injunction requiring the State Department to reinstate the Biden administration’s policy as to themselves and allow them to self-attest to their sex, including by selecting the X designation.
U.S. District Judge Julia Kobick granted the request in April and found in part that Mr. Trump’s executive order and passport policy were motivated by animus toward transgender people and violated their right to equal protection under the law.
Kobick, appointed by President Joe Biden, required the Trump administration to process and issue passports for six of the seven plaintiffs consistent with the Biden administration’s policy.
“Viewed as a whole, the language of the Executive Order is candid in its rejection of the identity of an entire group — transgender Americans — who have always existed and have long been recognized in, among other fields, law and the medical profession,” Kobick wrote in her decision.
The judge later extended her preliminary injunction to cover members of a certified class who are in need of a new passport or need to change their existing document to have its sex designation align with their gender identity.
The Trump administration appealed the decision and sought emergency relief allowing it to enforce its new policy. The U.S. Court of Appeals for the 1st Circuit denied that request earlier this month.
In the emergency appeal to the Supreme Court, Solicitor General D. John Sauer argued the passport policy is “eminently lawful.” He argued that the injunction issued by the Boston judge blocking its enforcement compels the Trump administration to “speak to foreign governments in contravention of both the President’s foreign policy and scientific reality.”
“The question is whether the Constitution requires the government to adopt respondents’ preferred definition of sex. It does not,” Sauer wrote.
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