The Supreme Court has allowed the Trump administration to restrict the gender on a person’s passport to his or her biological sex, halting a lower court’s ruling that had blocked the policy.
The justices sided on Thursday with the administration 6-3, with the unsigned majority opinion stating that the policy requiring that a passport list biological sex, as opposed to gender identity, is not discriminatory but rather reflects a “historical fact.”
“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. And on this record, respondents have failed to establish that the Government’s choice to display biological sex ‘lack[s] any purpose other than a bare … desire to harm a politically unpopular group,’” the brief majority ruling said.
“Nor are respondents likely to prevail in arguing that the State Department acted arbitrarily and capriciously by declining to depart from Presidential rules that Congress expressly required it to follow,” the order continued.
Justice Ketanji Brown Jackson authored a dissent, joined by Justices Sonia Sotomayor and Elena Kagan, bemoaning the majority for again siding with the administration again while ignoring how the ruling harms those suing the president, arguing that the passport ruling runs counter to the typical process for the high court’s emergency docket.
“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.
“The Court nonetheless fails to spill any ink considering the plaintiffs, opting instead to intervene in the Government’s favor without equitable justification, and in a manner that permits harm to be inflicted on the most vulnerable party. Such senseless sidestepping of the obvious equitable outcome has become an unfortunate pattern,” Jackson added.
The order by the high court Thursday marks the latest win for the Trump administration on the Supreme Court’s emergency docket, with wins ranging from executive branch firings to allowing the end of temporary protected status for Venezuelans.
The administration has petitioned the high court to halt lower court orders blocking the firing of Register of Copyrights Shira Perlmutter and the deployment of the National Guard in Chicago. The Trump administration also asked the Supreme Court to allow the firing of Federal Reserve governor Lisa Cook, leading to the high court scheduling a hearing on the request for January.