Trump administration asks Supreme Court to let it limit passport sex marker choice for trans and nonbinary Americans

By Devan Cole, John Fritze, CNN

(CNN) — The Trump administration asked the Supreme Court on Friday to let it limit passport sex markers for transgender and nonbinary individuals, its latest effort to get the justices to intervene in a fight over restrictive policies targeting LGBTQ+ Americans.

Just after taking office in January, President Donald Trump issued an executive order that said it’s the policy of the federal government to recognize only two sexes and that those sexes “are not changeable and are grounded in fundamental and incontrovertible reality.”

The State Department later suspended its processing of passport applications seeking the gender marker of “X.”

The move reversed changes made during the Biden administration that were meant to accommodate non-binary, intersex and gender non-conforming persons. Beginning in April 2022, Americans had been able to select X as their gender marker.

Lawsuits quickly ensued, and earlier this year, a federal judge in Massachusetts blocked the government from enforcing the policy on a nationwide basis via a class-action lawsuit.

“Private citizens cannot force the government to use inaccurate sex designations on identification documents that fail to reflect the person’s biological sex — especially not on identification documents that are government property and an exercise of the President’s constitutional and statutory power to communicate with foreign governments,” Solicitor General D. John Sauer wrote in the emergency appeal to the high court.

In her ruling, US District Judge Julia Kobick, a Biden nominee, ruled that the policy on its face classified “applicants on the basis of sex” and therefore warranted higher judicial scrutiny.

Noting that passports are often used for non-travel purposes, like renting a car or opening a bank account, the judge said that absent a ruling halting the policy, individuals who would be affected by it would experience “irreparable harm … from their inability to use their passports anywhere without outing themselves.”

Those individuals, Kobick explained, are likely to face a heightened risk of “anxiety, psychological distress, discrimination, harassment, or violence any time they use their passports, not simply because they face these risks when using their passports for international travel.”

A federal appeals court in Boston earlier this month denied the administration’s request to block that order. Though it wasn’t central to its decision, the court said that the government had failed “to engage meaningfully” with the lower court’s claims that the policy might run afoul of the Constitution’s Equal Protection Clause.

Sauer argued on Friday that lower courts erred when it scrutinized the policy under a heightened level of judicial review, and said the rulings blocking the policy conflict with a major Supreme Court ruling issued in June that bolstered efforts by conservative state lawmakers to pass and preserve divisive laws targeting transgender Americans.

That 6-3 ruling from the court, he wrote, “makes clear that the challenged policy does not discriminate based on sex.”

This story has been updated with additional details.

The-CNN-Wire
™ & © 2025 Cable News Network, Inc., a Warner Bros. Discovery Company. All rights reserved.