Trump Files Emergency SCOTUS Motion Over Trans Passport Gender Markers; Decision Could Come Quickly

The motion comes after multiple courts have found Trump's passport gender marker ban for transgender people to likely violate their constitutional rights and US law.

Photo by Kelly Sikkema on Unsplash

On Friday, the Trump administration asked the Supreme Court to revive its ban on transgender people changing the gender markers on their passports. Lower courts had blocked the policy 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. Now, in a move usually reserved for matters of national security, the administration is pressing the Court on an emergency basis to let the ban snap back into place.

In its filing, the administration insists that any harm to transgender people from the passport ban is “speculative” or even “self-inflicted.” It claims the policy doesn’t discriminate on the basis of sex or transgender status, arguing that it “applies equally to each sex—defining sex for everyone in terms of biology rather than self-identification.” Government lawyers further contend the rule cannot be deemed arbitrary and capricious under the Administrative Procedure Act or the Paperwork Reduction Act, and deny it stems from animus toward transgender people—despite the executive orders’ plain text readings, which brands transgender existence as “wrong” and “dishonorable.”

Lower court judges—and at least one appellate panel—have already swatted down the government’s arguments. They pointed to the obvious: 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.

As for the government’s claim that the passport ban doesn’t discriminate because it “applies equally to each sex,” a federal judge in Maryland that ruled against the passport policy recently showed just how hollow that logic is. In his ruling, he likened the argument to defending segregated bathrooms as equal because “everyone was prohibited from using the bathroom of a different race.” The same, he said, is happening here: a policy tethered to sex assigned at birth may look neutral on paper but, in practice, only targets transgender people—since cisgender applicants almost never need to request a marker that differs from their birth certificate.

Now it falls to the Supreme Court to decide whether to revive the administration’s passport ban and undo lower-court rulings that blocked it. The case has been filed on the so-called “shadow docket”—a channel meant for emergencies of national importance, but increasingly used by the Court to hand down sweeping, precedent-shaping rulings without full briefing, argument, or explanation. As UC Berkeley law dean Erwin Chemerinsky has warned, “The Supreme court's growing reliance on it's "shadow docket" to issue major, often precedent-shaping rulings without a full briefing, oral argument, or explanation undermines fundamental principles of judicial process and transparency."

A ruling from the Supreme Court could come soon, and if it grants the emergency stay, the passport gender marker ban would snap back into place immediately. That would plunge transgender travelers into chaos, leaving the government to decide whether to revoke already-issued passports or invalidate documents updated through the class-action case. The administration might find the logistical hurdles too great, but for those still waiting, the message is clear: the window to obtain accurate documents may be closing. After the Court’s recent decision in Skrmetti, which green-lit discrimination in healthcare, transgender people are left to wonder whether their very right to move through the world safely will be stripped away in the shadows.