A federal appeals court questioned the Justice Department’s insistence on Tuesday that a Supreme Court emergency docket ruling from last year settled a lawsuit over the Trump administration’s policy restricting the gender on a person’s passport to his or her biological sex.
A three-judge panel on the U.S. Court of Appeals for the 1st Circuit heard arguments in the case, in which both sides have asked the panel to toss the preliminary injunction blocking the policy for different reasons. The Supreme Court allowed the policy to remain in effect while litigation continues via an order on its emergency docket last year. DOJ lawyer Michael Velchik pointed to that November 2025 order from the high court as evidence for why the First Circuit should toss the district court’s ruling against the administration.
The Supreme Court’s 6-3 ruling on the emergency docket included an unsigned opinion that stated the policy of listing biological sex on passports was only reflecting 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 the brief majority ruling from the Supreme Court said. “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.’
“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 Supreme Court order reads.
The DOJ argued on Tuesday that the justices had already signaled how the case should end.
“We read that language as making a legal determination that would foreclose their ability to succeed on that on the merits, the Supreme Court has already decided in this case, which is now the law of the case, but is also a precedent that there is no discrimination,” Velchik said.
One of the judges on the panel questioned Velchik’s assertion, noting that it was a ruling on the emergency docket over whether to lift a preliminary injunction, not a ruling on the underlying dispute. The judge questioned how the Supreme Court’s order can be seen as a firm ruling when they are “making an estimate” on who they think is likely to win when deciding cases on the emergency docket. Velchik responded that the statements the Supreme Court made in the accompanying opinion with the order seem to be “unequivocal” statements beyond a preliminary examination of the issue.
Both sides have asked the appeals court panel to vacate the lower court’s preliminary injunction and send the case back to the district court for further proceedings. Both sides have also asked the panel of judges to include an opinion with its order vacating the injunction with their views on the merits of the case, something the panel seemed uncomfortable doing.
Malita Picasso, the lawyer arguing for the group suing the Trump administration over its passport policy, asked the panel to include an opinion asserting that no legal claims that they have made against the administration have been struck down by vacating the injunction.
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Multiple judges expressed concern that an opinion accompanying an order vacating the lower court’s injunction would be viewed as giving an advisory opinion on the matter, which they are constitutionally barred from doing.
The appeals court panel did not indicate how they would rule in the case or when they would issue any order.