The Trump administration has asked the Supreme Court to overturn an injunction blocking it from forcing transgender and non-binary people to be misgendered on their passports.
In April, a federal judge in Massachusetts ordered the administration to temporarily pause its new policy requiring that trans people’s I.D. documents be marked only with their birth sex and denying the ‘X’ designation for non-binary people.
“[These policies] are part of a coordinated and rapid rollback of rights and protections previously afforded to transgender Americans, suggesting that these challenged actions are built on a foundation of irrational prejudice toward fellow citizens,” wrote U.S. district judge Julia E. Kobick.
Her ruling was upheld on September 4 by an appeals court, which ruled that the government had not “demonstrated a strong likelihood of success”.
Now the Justice Department is appealing to the highest court in the land, arguing that Kobick’s injunction “has no basis in law or logic” and would force the government to issue “inaccurate” documents.
“The Constitution does not prohibit the government from defining sex in terms of an individual’s biological classification,” wrote the Department’s lawyers in a filing on Friday.
“The district court’s class-wide injunction irreparably harms the government and the public by blocking the President’s exercise of his constitutionally and statutorily conferred power to prescribe rules of the issuance of passports…
“Even worse, the injunction forces the government to misrepresent the sex of passport holders to foreign nations by using markers that reflect ‘the false claim that males can identify as and thus become women and vice versa.'”
The administration further argued that the Supreme Court’s decision in U.S. v Skrmetti — a case challenging Tennessee’s ban on transition healthcare for trans under-18s — negated Kobick’s ruling that the passport policy broke the equal protection clause of the 14th Amendment by discriminating based on sex.
In Skrmetti, the court ultimately ruled that banning such treatments for trans children but not cisgender (or non-trans children) did not count as sex discrimination, or even as discrimination against trans people. Other courts have already begun to interpret that logic as applying to adult healthcare too.
“As this Court reaffirmed in United States v. Skrmetti, a policy does not discriminate based on sex if it applies equally to each sex without treating any member of one sex worse than a similarly situated member of the other,” the Department wrote.
“And here, the challenged policy applies equally, regardless of sex — defining sex for everyone in terms of biology rather than self-identification.”
While the passport police were active, some trans people — including Hollywood star Hunter Schafer — were issued passports that listed them as their birth sex, while others suffered delays in getting a passport at all.
The Trump administration has consistently described biological sex as “immutable”, and it’s true that the basic fact of whether someone’s body produces sperm or eggs cannot be changed, nor can their chromosomes.
But many other features of sex, including genitals, body shape, and sexual function, can be altered via hormonal or surgical intervention — and generally play a bigger role in how someone is perceived and treated in daily life.
The Supreme Court, which has a conservative supermajority including three Trump-appointed judges, will now decide whether to take up the case. Over the past nine months, it has handed a series of victories to the Trump administration, often giving little or no explanation of its reasoning.
Earlier this month, a group of ten federal judges criticized the Court for its unsigned “shadow docket” opinions, saying it was “undermining” them and “throwing [them] under the bus”.
