US Supreme Court Reviews Trump-Era Gender Marker Passport Policy

In April 2022, an individual begins filling out a passport application using an X gender marker. Stefani Reynolds/AFP/Getty Images/File

The case has reached the U.S. Supreme Court: Donald Trump’s administration has asked for permission to restrict the use of gender markers on passports for transgender and nonbinary citizens – the latest effort to draw the court into a clash over policies aimed at LGBTQ+ Americans.

Shortly after taking office in January, the president signed an executive order stating that the federal government’s policy recognizes only two genders and that these genders are “immutable and grounded in a fundamental and undeniable reality.”

The State Department later suspended processing passport applications with the gender marker ‘X’.

This move rolled back changes introduced by the Biden administration that were intended to account for nonbinary, intersex, and people who do not conform to traditional gender norms. Since April 2022, Americans could choose X as a gender marker.

Lawsuits quickly followed, and earlier this year a federal court in Massachusetts blocked the nationwide enforcement of the policy in a class action.

Judge Julia Kobik, a Biden appointee, noted that the policy on its face classifies “candidates by sex” and therefore requires heightened judicial scrutiny.

Without a ruling that would stop the policy, the people it affects are “likely to suffer irreparable harm … due to the heightened risk of interference with treatment for gender dysphoria and the experience of anxiety, psychological distress, discrimination, persecution or violence every time they use their passports, not only when traveling abroad.”

The U.S. Court of Appeals in Boston earlier this month denied the administration’s request to block that order. While the ruling was not decisive, the court noted that the government had failed to “meaningfully engage” with the lower court’s requirements as to whether the policy runs afoul of the Constitution and the Equal Protection Clause.

This story is developing, and updates will be provided as new details emerge.

Timeline of events and institutional reactions

“the federal government’s policy to recognize only two sexes and that these sexes are immutable and grounded in a fundamental and undeniable reality”

“for the government to meaningfully engage with the lower court’s requirements that the policy could violate the Constitution with respect to equal protection”

“likely to suffer irreparable harm … due to the heightened risk of hindering treatment for gender dysphoria and the experience of anxiety, psychological distress, discrimination, persecution or violence each time they use their passports, not only during international travel”