President Donald Trump signed an executive order saying the federal government will now recognize only two genders — male and female. It also directs the State Department to make sure that all official documents such as passports, visas and Global Entry cards list a person’s gender only as “M” or “F,” matching the gender they were assigned at birth.
The Supreme Court’s conservative majority has allowed Trump’s new passport rules to go into effect while the full legal case continues. This is a major change from what the government had allowed for many years under both Democratic and Republican administrations. Previously, transgender people could change the “M” or “F” on their passports to match their gender identity. Under President Biden, nonbinary people were even given the option to choose an “X” gender marker. All of this has now been reversed by Trump’s order.
In a short, unsigned opinion, the Supreme Court said the Trump administration is likely to win the case when it eventually comes before the Court. The majority explained that listing someone’s sex assigned at birth on a passport does not violate equal protection rights any more than listing a person’s country of birth. In their view, the government is simply stating a historical fact and not treating people differently under the law.
Justice Ketanji Brown Jackson strongly disagreed. She wrote a dissenting opinion, joined by Justices Sonia Sotomayor and Elena Kagan. Jackson argued that the people bringing the lawsuit were only asking for something millions of Americans don’t have to think about at all — a passport that allows them to travel safely without worrying about being misidentified or targeted. She pointed out that transgender and nonbinary travelers face real risks, including harassment, violence or being stopped by security or authorities when their appearance does not match what their documents say. Jackson criticized the majority for allowing the policy to take effect without a solid reason, saying the Court was allowing immediate harm to vulnerable people.
The policy before Trump’s order had been simple: transgender people could choose the gender marker that matched who they are, and nonbinary people under Biden could choose “X.” Trump changed all of this on the same day he delivered an inaugural speech attacking what he called “woke” culture. He said it would now be official U.S. policy that only two genders exist and that all government documents must show only “M” or “F” based on birth.
After the order was issued, a group of transgender and nonbinary individuals sued the government. They argued that the new rule violates their constitutional rights, limits their ability to travel, and puts them in danger. Judge Julia Kobick agreed with them at first and blocked the government from enforcing the order. She later expanded her ruling to protect even more people. In her explanation, she said transgender people with documents that don’t match their gender identity face higher risks at airports and in countries where being transgender is criminalized.
The Trump administration tried to get the appeals court to pause her ruling, but the court refused. That is when the administration asked the Supreme Court to step in. Solicitor General D. John Sauer argued that the judge’s decision harmed the U.S. government by interfering with the president’s foreign policy and what he described as “scientific reality.” He claimed the plaintiffs would not be harmed if the old policy was enforced while the case continued.
The plaintiffs’ lawyer, Chase Strangio, told the Supreme Court that the new rules put transgender, nonbinary and intersex people in danger whenever they need to use their passport. Strangio also pointed out that the government never explained how allowing someone’s passport to match the gender they live as could possibly cause any problems in foreign relations. In fact, Strangio said, passports are meant to help officials confirm a person’s identity based on how they actually look, not based on what was written at birth.
