The U.S. Supreme Court granted a stay on Thursday, permitting the Trump administration to enforce a policy requiring all new passports to display biological sex at birth rather than gender identity, overturning months of lower court protections for transgender and nonbinary Americans.

In an unsigned order issued November 6, the nation’s highest court sided 6-3 with the administration in the case Trump v. Orr, allowing the policy to take effect while litigation continues in lower courts.

The passport policy stems from Executive Order 14168, issued by President Trump on January 20, his first day back in office. The order characterizes transgender identity as “false” and “corrosive” to American society and mandates that the federal government recognize only two sexes—male and female—defined by biological sex “at conception.” The order directed the State Department to require that government-issued identification documents, including passports, reflect holders’ biological sex.​​

On January 22, Secretary of State Marco Rubio directed the State Department to suspend passport applications seeking sex marker changes or nonbinary “X” designations. The new policy reversed a Biden administration approach that had allowed transgender people to self-select sex markers matching their gender identity without medical documentation and permitted nonbinary individuals to choose an “X” marker.​

For 33 years across six presidential administrations, transgender Americans had been able to obtain passports with sex markers matching their gender identity. From 1992 to 2010, applicants needed to submit evidence of surgical reassignment. In 2010, requirements shifted to a doctor’s certification of clinical gender transition treatment. Beginning in 2021, applicants could self-select their sex marker.

Seven transgender and nonbinary Americans, led by plaintiff Ashton Orr, filed a class action lawsuit in the U.S. District Court for the District of Massachusetts challenging the policy. The plaintiffs argued the Passport Policy violated the Equal Protection Clause by unlawfully discriminating on the basis of sex and lacking rational basis because it was motivated by animus against transgender Americans. They also claimed the policy violated the Administrative Procedure Act by being arbitrary and capricious and enacted without observing procedures required by the Paperwork Reduction Act.​​

U.S. District Judge Julia Kobick issued a decision in April preliminarily enjoining the government from enforcing the policy. The court found the plaintiffs likely to succeed on their legal claims and determined they would suffer concrete and irreparable injuries without an injunction. In June, Judge Kobick granted class certification and extended the preliminary injunction to a broader class of affected individuals.​​

The First Circuit Court of Appeals declined to stay the injunction pending appeal, prompting the government to file an emergency application with the Supreme Court.

In its brief unsigned opinion, the Supreme Court majority stated that “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.”​

The Court concluded that respondents failed to establish the government’s choice to display biological sex “lack[s] any purpose other than a bare…desire to harm a politically unpopular group,” citing the 2018 decision Trump v. Hawaii. The majority also found respondents unlikely to prevail in arguing the State Department acted arbitrarily by following presidential rules that Congress required it to follow.​​

The Court determined the government is likely to succeed on the merits and would “suffer[] a form of irreparable injury” absent a stay, particularly given the executive branch policy’s foreign affairs implications.

Justice Ketanji Brown Jackson authored a 12-page dissenting opinion joined by Justices Sonia Sotomayor and Elena Kagan. Jackson criticized what she characterized as the Court’s misuse of its equitable discretion and failure to properly balance harms to the parties.​​

“As is becoming routine, the Government seeks an emergency stay of a District Court’s preliminary injunction pending appeal. As is also becoming routine, this Court misunderstands the assignment,” Jackson wrote.​​

The dissent argued that proper stay analysis requires not only assessing likelihood of success on the merits, but also whether the applicant will suffer irreparable harm and weighing relative harm to the parties and public interest. Jackson asserted the government offered “no evidence that it will suffer any harm if it is temporarily enjoined” while plaintiffs would face “imminent, concrete injury if the policy goes into effect.”​

Jackson pointed out the government’s own policy undermines claims of urgency by allowing transgender Americans who already have passports with gender identity markers to continue using them until expiration.

The dissent detailed testimony from plaintiffs describing concrete harms from gender-incongruent passports. Plaintiff AC Goldberg, a transgender and intersex person, reported being sexually assaulted by TSA officers conducting body searches. Chastain Anderson described being strip searched when traveling with documents not matching her gender expression. Zaya Perysian faced invasive patdowns from TSA agents verifying her gender after observing the discrepancy between her female presentation and male passport marker. Ashton Orr and Ray Gorlin were accused of presenting fraudulent documents and forced to out themselves as transgender to TSA agents.​

District Court findings indicated transgender people facing obstacles to gender-congruent identity documents are nearly twice as likely to experience suicidal ideation and report more severe psychological distress than those without such barriers.​​

“The documented real-world harms to these plaintiffs obviously outweigh the Government’s unexplained (and inexplicable) interest in immediate implementation of the Passport Policy,” Jackson wrote. “This Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.”

The stay takes effect immediately, allowing the State Department to enforce the biological sex requirement for all new passport applications while the underlying case proceeds through the First Circuit Court of Appeals and potentially returns to the Supreme Court if certiorari is sought.