The Trump administration has asked the Supreme Court to allow it to enforce a policy that would restrict sex designations on passports to “male” and “female” based on sex assigned at birth.
The president and State Department are seeking to reverse a policy introduced by the Biden administration in 2021 that allowed transgender and nonbinary people to self-select their gender or put “X” as an alternative. A lower court issued an injunction earlier this year allowing that policy to continue.
The new Trump policy is “eminently lawful,” Solicitor General D. John Sauer said in the new filing. “The Constitution does not prohibit the government from defining sex in terms of an individual’s biological classification.”
The injunction, the filing says, "has no basis in law or logic."
The filing seeks a stay of the order "pending the consideration and disposition of the government’s appeal to the United States Court of Appeals for the First Circuit and pending any further review in this Court."
The administration argued to the high court that the district judge’s decision was flawed.
“Indeed, just as it would not be discrimination based on national origin to define a person’s national origin as the person’s birth country rather than the country with which the person self-identifies, so too it is not discrimination based on sex to define a person’s sex as the person’s immutable biological classification rather than the sex with which the person self-identifies,” its filing says.
The plaintiffs are represented in part by the American Civil Liberties Union.
Asked for comment on the filing, Jon Davidson, senior counsel for the ACLU’s LGBTQ & HIV Project, said, “As the lower courts have found, the State Department’s policy is an unjustifiable and discriminatory action that restricts the essential rights of transgender, nonbinary, and intersex citizens."
"[W]e are committed to defending those rights including the freedom to travel safely and the freedom of everyone to be themselves without wrongful government discrimination,” he said in a statement.
The government is challenging a pair of rulings from U.S. District Judge Julia Kobick in Massachusetts, who issued her initial injunction after finding the plaintiffs were likely to succeed on the argument that "under any standard of review, the Executive Order and Passport Policy are based on irrational prejudice toward transgender Americans and therefore offend our Nation’s constitutional commitment to equal protection for all Americans."
The administration is appealing that ruling and Kobick's subsequent granting of class certification in the case. The latter appeal is still pending.
The federal appeals court rejected the administration's request for a stay of the district judge's injunction earlier this month.
The administration has had greater success with such requests to the Supreme Court. As of Sept. 9, the conservative majority court has sided with the administration in an emergency ruling 18 times since Trump retook office in January. The court has rejected Trump just twice.
