SCOTUS Rules Against Trans People's Passport Gender Markers In Shadow Docket Ruling

The administration has previously indicated it could revoke some trans people's passports if it got this ruling.

Photo by Global Residence Index on Unsplash

In a ruling issued from the shadow docket, the Supreme Court’s conservative majority sided with the Trump administration on an emergency request on transgender passport restrictions—a process historically reserved for true national crises but increasingly deployed to fast-track administration policies. In the unsigned decision, the majority asserted that banning transgender people’s correct gender markers on passports did not constitute differential treatment, while disregarding clear violations of the Administrative Procedure Act and brushing aside the obvious unconstitutional animus embedded in the executive order that enabled the ban in the first place. The ruling leaves transgender people who obtained updated passports under the prior policy in limbo—and all transgender travelers facing profound uncertainty—as the administration now weighs further actions against their documents under a Court that has signaled it is willing to greenlight those efforts.

The passport gender marker ban, which began early in the Trump administration, was blocked after judges found the executive orders behind it—orders that branded transgender people “wrong,” “dishonorable,” and “socially coercive”—were likely discriminatory on their face and in violation of US law. The passport policy had sown chaos in the transgender community, leaving some passport applications frozen for months. Following lower court decisions blocking the passport policy, the Trump administration began allowing transgender people to update their passports if they signed an attestation document, while assuring that those who had their passports updated before the policy was enacted that they would be allowed to use those passports until they expire.

In the prior rulings, judges noted obvious harms: forcing transgender people to travel with documents that out them exposes them to violence and imprisonment in countries hostile to their existence. Judges also noted the daily risks at home—outing in interactions using their passport as identification, harassment, denial of services—as well as the profound mental toll of being forced to carry papers that misstate who you are. The harms, they concluded, are not speculative but immediate and potentially severe for the plaintiffs.

In this new shadow docket ruling, the conservative court has determined with virtually no analysis that the policy did not stem from animus towards transgender people and was not arbitrary and capricious in violation of the APA.

“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. 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.” Trump v. Hawaii, 585 U. S. 667, 705 (2018) (internal quotation marks omitted). Nor are respondents likely to prevail in arguing that the State Department acted arbitrarily and capriciously by declining to depart from Presidential rules that Congress expressly required it to follow.” reads the ruling.

Justice Jackson, joined by justices Kagan and Sotomayor, issued a blistering dissent:

“The Court ignores these critical limits on its equitable discretion today. The Government seeks to enforce a questionably legal new policy immediately, but it offers no evidence that it will suffer any harm if it is temporarily enjoined from doing so, while the plaintiffs will be subject to imminent, concrete injury if the policy goes into effect.

The Court nonetheless fails to spill any ink considering the plaintiffs, opting instead to intervene in the Government’s favor without equitable justification, and in a manner that permits harm to be inflicted on the most vulnerable party. 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. Because I cannot acquiesce to this pointless but painful perversion of our equitable discretion, I respectfully dissent.”

Now, with a Supreme Court signaling its willingness to greenlight nearly any administration policy targeting transgender people, the future of transgender Americans’ passports has become a critical inflection point. Previously, the administration suggested it would allow passports updated under the pre-Trump policy to remain valid. But for passports issued during the injunction, applicants were required to sign an attestation form—and a State Department source tells EITM that the department has been collecting data from those attestations. In earlier court filings, the administration indicated that if it secured a ruling like the one it just received from the Court, it would move to revoke those passports. Whether it will follow through is uncertain.

Legal experts tell EITM that this ruling could open the door to a broader assault on transgender identification policies nationwide. Real ID requirements could be weaponized against transgender people’s gender markers even in blue states. Red states could feel emboldened to enact harsher ID restrictions of their own. And with the Court signaling that transgender people may receive no meaningful equal-protection scrutiny, states may have wide latitude to pass discriminatory laws with little fear of judicial intervention—a shift that could unleash a wave of anti-trans policies backed by the Court’s implicit approval.

The ACLU posted a response to the ruling on Bluesky, stating, “This decision undermines the freedom of transgender, non-binary, and intersex people to have our IDs reflect who we are. This fight isn’t over. Our case challenging President Trump’s executive order will still move forward. In the meantime anyone who applies for a new, corrected, or replacement passport, or for a passport renewal, is at risk of having their passport issued bearing the sex they were assigned at birth.”