Left: MIAMI, FL-MARCH 10: U.S. Supreme Court Justice Ketanji Brown Jackson is seen during an Evening with Ketanji Brown Jackson at Chapman Conference Center at MDC Wolfson Campus on March 10, 2025, in Miami, Fla. (Photo by Alberto E. Tamargo/Sipa USA)(Sipa via AP Images). Right: President Donald Trump talks about transgender weightlifters as gives a commencement address at the University of Alabama, Thursday, May 1, 2025, in Tuscaloosa, Ala. (AP Photo/Mike Stewart).
The U.S. Supreme Court on Thursday gave the Trump administration the go-ahead to change the rules regarding sex marker designations on U.S. passports for transgender and nonbinary people.
Acting on an application for a stay, a majority of justices voted to overturn a preliminary injunction issued in late June by a Boston-based U.S. District Judge Julia Kobick, a Joe Biden appointee. The district court's order barred the U.S. Department of State from forcing transgender and nonbinary Americans to select "sex markers" on their passports that "reflect only the holder's sex assigned at birth."
Lower courts have repeatedly ruled in the plaintiffs' favor. Kobick first issued an order blocking the change in April. Then, following the high court's landmark ruling limiting the reach of national injunctions — and an intervening amended complaint — the court certified the plaintiffs as a class and issued the injunction at issue. In July, the judge declined to stay her ruling as the government appealed. In September, the U.S. Court of Appeals for the 1st Circuit refused to stay the injunction.
Now, the government is free to pursue the policy change.
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The majority opinion — which for all intents and purposes appears to be 6-3; the exact vote was not published — comes by way of the court's emergency docket. This method of case management is often referred to as the "shadow docket" by critics of the Roberts Court.
Thursday's order, true to the limited form expected of shadow docket rulings, contains just four paragraphs of justification for why the nation's highest court sees fit to put the kibosh on Kobick's injunction.
"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," the majority opinion reads. "And on this record, respondents have failed to establish that the Government's choice to display biological sex 'lack[s] any purpose other than a bare … desire to harm a politically unpopular group.'"
The court goes on to say the Kobick order "enjoins enforcement" of an executive branch policy "with foreign affairs implications concerning a Government document," which means the State Department will suffer "a form of irreparable injury" unless the injunction is stayed.
Writing in dissent, Justice Ketanji Brown Jackson makes a by now commonplace — and relatively voluble — criticism of her conservative colleagues on the bench in terms of shadow docket relief.
"As is becoming routine, the Government seeks an emergency stay of a District Court's preliminary injunction pending appeal," Jackson begins. "As is also becoming routine, this Court misunderstands the assignment."
The dissent, joined by Justices Sonia Sotomayor and Elena Kagan, spends considerable time accusing the majority of ignoring time-honored stay factors in order to quickly sign off on a "questionably legal new policy" promoted by the Trump administration.
"Balancing the equities is an important part of the analysis because it avoids unnecessary real-world injury to people with colorable legal claims," Jackson continues. "The Court nonetheless fails to spill any ink considering the plaintiffs, opting instead to intervene in the Government's favor without equitable justification."
The dissent goes on like this, at length:
Such senseless sidestepping of the obvious equitable outcome has become an unfortunate pattern. So, too, has my own refusal to look the other way when basic principles are selectively discarded. This Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.
On the merits, Jackson notes the passport policy the Trump administration now aims to change has been in place for 33 years.
"The State Department's sex marker policies have thus long demonstrated that what is important for identification purposes is the bearer's gender identity today," the dissent argues. "No matter. On January 22, 2025, the agency overhauled the rules for sex markers on passports, reverting to its pre-1992 practices."
To hear Jackson tell it, the State Department has no reason to abruptly switch gears on passport policy — except to adhere to an executive order issued by President Donald Trump on the first day of his second term in office. Jackson describes that order as "characterizing transgender identity as 'false' and 'corrosive' to American society."
But, Jackson insists, the ability of the president to "enact his preferred policies" should not be enough to warrant a stay here.
"What the Government needs (and what it does not have) is an explanation for why it faces harm unless the President's chosen policy is implemented now," the dissent argues. "But how urgent can this interest be when the Passport Policy itself allows transgender Americans who already have passports with sex markers reflecting their current gender identity to continue using those passports until they expire?"
Rather, Jackson says, the harm actually goes in the opposite direction.
Again, the dissent, at length:
The Government also insists that gender identity is not a meaningful basis for identification—strangely begging the question why sex markers are required on passports at all. And, in any event, it provides no evidence of harmful confusion or other problems caused by transgender Americans who are using passports with sex markers corresponding to their current gender identity. To the contrary, as the plaintiffs experiences demonstrate, it is gender-incongruent passports that cause confusion and fail to provide a meaningful basis for identification…
[B]y preventing transgender Americans from obtaining gender-congruent passports, the Government is doing more than just making a statement about its belief that transgender identity is "false." The Passport Policy also invites the probing, and at times humiliating, additional scrutiny these plaintiffs have experienced…
The harm to these individuals from having to make that choice—before their legal challenges have even been resolved—is palpable.
Jackson ends with another jab at the majority's decision to intervene on behalf of the Trump administration while ignoring the plaintiffs entirely in the accompanying legal analysis. Granting the stay will be "of little advantage" to the government while "needlessly and significantly burdening the plaintiffs," Jackson says.
"Today, the Court refuses to answer equity's call," the dissent laments in closing. "In my view, the Court's failure to acknowledge the basic norms of equity jurisdiction is more than merely regrettable. It is an abdication of the Court's duty to ensure that equitable standards apply equally to all litigants—to transgender people and the Government alike."
