Washington, D.C. – November 7, 2025 – In a swift and sharply divided ruling, the U.S. Supreme Court on Thursday cleared the path for President Donald Trump's administration to implement a controversial policy that restricts transgender and nonbinary individuals from selecting passport gender markers matching their identity. The unsigned order, issued on the court's emergency docket, represents yet another victory for the conservative majority in Trump's second term and has ignited fierce backlash from civil rights advocates who decry it as an assault on constitutional protections for marginalized communities.
The decision, handed down just days after oral arguments, grants the administration's request to stay a lower federal court injunction that had preserved the more inclusive policy established under President Joe Biden. Under the new enforcement, U.S. passports will now default to sex assigned at birth—limited to "male" or "female"—effectively barring the "X" marker for nonbinary, intersex, or gender-nonconforming applicants and requiring transgender individuals to provide extensive medical documentation, if any changes are permitted at all. This rollback reverses a decade of incremental progress in federal recognition of gender diversity on official travel documents, a change that had allowed thousands of Americans to align their passports with their lived realities without invasive proof of transition.
In its brief order, the court likened the sex marker requirement to neutral biographical details like country of birth, arguing it merely records a "historical fact" without imposing unequal treatment. "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 majority wrote, in a rationale that sidestepped deeper scrutiny of potential discrimination claims. The ruling's brevity—typical of the court's shadow docket—underscored the urgency of the administration's plea, but it offered no oral arguments or full briefing, drawing criticism for bypassing traditional judicial deliberation.
The three liberal justices—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—dissented vehemently, with Jackson penning a pointed opinion that highlighted the human cost of the policy. "The Government seeks to enforce a questionably legal new policy immediately, but it offers no evidence that it will suffer any harm if it is temporarily enjoined from doing so, while the plaintiffs will be subject to imminent, concrete injury if the policy goes into effect," Jackson wrote, joined by her colleagues. The dissent framed the decision as part of a troubling pattern, where the court enables executive overreach at the expense of vulnerable groups, echoing earlier emergency rulings that upheld Trump's military transgender ban in May.
To understand the stakes, it's essential to trace the policy's evolution. Gender markers first appeared on U.S. passports in the mid-1970s as a simple administrative field. By 1992, the State Department began permitting changes for transgender individuals in "certain circumstances," typically requiring medical certification of gender-affirming surgery or hormone therapy. This cautious accommodation reflected growing awareness of transgender experiences but imposed significant barriers, often forcing applicants to disclose private health details.
The landscape shifted dramatically in 2021 under Biden, amid a wave of advocacy from LGBTQ+ organizations. The State Department eliminated the medical proof requirement, allowing self-attestation for male or female markers, and introduced the "X" option for nonbinary and intersex people—the first such federal recognition. This policy, born from years of litigation including a landmark 2017 settlement with the ACLU, issued the first "X" passport that same year and streamlined applications for over 1,400 transgender renewals by 2024, according to department data. Advocates hailed it as a lifeline, reducing risks of outing individuals at borders or during travel.
Trump's return to the White House in January 2025 upended this framework on day one. Via executive order, he mandated sex-at-birth designations, aligning with his campaign rhetoric decrying "woke gender ideology." The administration argued the change restores "biological reality" to federal documents, a stance echoed by Attorney General Pam Bondi in a post on X (formerly Twitter): "This decision reflects the administration's view that there are two sexes, and our attorneys will continue fighting for that simple truth." Bondi's statement, viewed over 500,000 times within hours, framed the ruling as a cultural bulwark, though critics noted it ignores scientific consensus on gender as a spectrum, per the American Psychological Association.
The policy's immediate impact has been profound. Transgender applicants like Ashton Orr, a 32-year-old teacher from West Virginia and the lead plaintiff in the challenge, faced denial of his male marker request despite years of testosterone therapy and top surgery. In January 2025, Orr submitted his renewal; by February, the State Department responded with a female designation, citing the new rule. "It's not just a document—it's my safety," Orr told reporters outside the Massachusetts federal courthouse in June, where U.S. District Judge Allison Burroughs ruled the policy likely violates the Fifth Amendment's equal protection clause and the Administrative Procedure Act (APA) for arbitrary rulemaking. Burroughs ordered the government to resume inclusive processing, a directive the 1st U.S. Circuit Court of Appeals upheld, refusing a stay.
Orr's suit, filed alongside plaintiffs like nonbinary artist Dana Zzyym—who won the original "X" marker in 2014—and transgender actor Hunter Schafer, alleges the policy compels false speech under the First Amendment and discriminates by heightening scrutiny for transgender travelers. Schafer, known for "Euphoria," shared in February that her renewed passport reverted to male despite consistent female markers elsewhere, sparking viral outcry and fears of international travel complications. Experts warn of heightened risks: mismatched documents have led to detentions at airports, harassment by customs agents, and even violence abroad, with a 2024 Human Rights Watch report documenting 27 incidents involving U.S. transgender travelers.
Civil liberties groups mobilized swiftly. Jon Davidson, director of the ACLU's LGBTQ & HIV Rights Project, called the ruling "a heartbreaking setback for the freedom of all people to be themselves, and fuel on the fire the Trump administration is stoking against transgender people and their constitutional rights." The ACLU, representing the plaintiffs pro bono, vowed to press forward in district court, arguing the policy flouts APA standards by lacking reasoned analysis or public comment. Lambda Legal and the National Center for Transgender Equality joined amicus briefs, citing data from the Williams Institute estimating 1.6 million transgender Americans affected, many reliant on passports for work, family visits, or relocation.
This case fits into Trump's broader second-term agenda targeting LGBTQ+ protections. Since January, the administration has withheld federal sex education funds from states acknowledging gender identity, proposed Title IX rollbacks limiting bathroom access in schools, and reinstated the military transgender ban—upheld by the court in May despite dissent from all nine justices on procedural grounds. White House spokesperson Anna Kelly hailed Thursday's decision as "a victory for common sense," tying it to Trump's electoral mandate. Yet, polling from Gallup in October showed 69% of Americans support nondiscrimination laws for transgender people, suggesting a disconnect between policy and public sentiment.
Legal scholars see the ruling as emblematic of the court's conservative tilt, with nearly two dozen emergency stays favoring Trump since inauguration. "The shadow docket is becoming the real docket," said Erwin Chemerinsky, UC Berkeley law dean, in a CNN analysis, warning of eroded checks on executive power. For transgender Americans, the fallout is immediate: delayed renewals, travel anxiety, and renewed marginalization. As Orr put it, "This isn't about paperwork—it's about erasure."
The litigation will continue in lower courts, potentially returning to the Supreme Court for merits review in 2026. Until then, the policy stands, a stark reminder of how quickly federal recognition can vanish. Advocacy groups urge Congress to intervene via legislation like the Equality Act, stalled since 2021. In the interim, personal stories like Orr's and Schafer's underscore the ruling's human toll, fueling calls for resilience amid regression.
