WASHINGTON — The Supreme Court dealt a setback to transgender and nonbinary Americans late Thursday, issuing an unsigned order that permits the Trump administration to enforce a policy requiring U.S. passports to list a person's sex as assigned at birth. The 6-3 decision, handed down via the court's shadow docket, overturned lower court rulings that had blocked the policy, drawing sharp criticism from dissenting justices who argued it inflicts unnecessary harm on vulnerable individuals.
The ruling in the case known as Trump v. Orr comes amid ongoing debates over transgender rights and executive authority. For 33 years, according to court documents and expert analysis, the U.S. government has allowed passports to reflect a person's gender identity rather than their sex at birth. This long-standing practice was upended by an executive order from President Donald Trump, who condemned transgender identity as 'false' and 'corrosive,' leading to a new rule mandating 'biological sex' markers on passports.
Transgender and nonbinary plaintiffs challenged the policy in federal court, arguing it was arbitrary, potentially violated equal protection principles, and stemmed from animus. A district court and an appeals court sided with them, finding the rule likely unlawful. The lower courts highlighted significant harms to trans individuals, including invasive searches and humiliation at borders when passport markers don't match gender presentation. 'Trans people have been subject to invasive strip searches and angry questioning when their passports don’t align with their gender identity,' noted Mark Joseph Stern, a legal analyst, in a discussion on the case. 'They’ve been outed; they faced all kinds of humiliation and harm.'
In contrast, the government failed to demonstrate any concrete harms from the previous policy, such as instances of fraud related to gender markers. The district court established through factual records that the equities favored the plaintiffs, with one side showing 'immense' harm and the other none. Despite this, the Supreme Court's conservative majority intervened, staying the lower court orders and allowing the policy to take effect immediately.
The majority's brief, unsigned order dismissed concerns about equal protection, stating: '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.' It emphasized potential harms to the government, including interference with 'executive branch policy with foreign affairs implications concerning a government document.'
Even though the government didn’t show us any real harms, we’re going to make some up. And we will close our eyes to the serious and ongoing harms that are suffered by the plaintiffs in this case.Stern commented on the reasoning, highlighting what he saw as a disregard for documented evidence from lower courts.
Justice Ketanji Brown Jackson, joined by Justices Sonia Sotomayor and Elena Kagan, issued a pointed dissent. She criticized the majority for a 'senseless sidestepping of the obvious equitable outcome,' calling it part of an 'unfortunate pattern' where basic principles are 'selectively discarded.' Jackson argued: 'This Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.'
The dissent underscored a perceived shift in how the court evaluates irreparable harm. Traditionally, such harm was tied to the enjoinment of democratically enacted statutes, but Jackson noted the majority now extends it to executive policies. This, she said, means 'anytime Trump can’t do what he wants to do, the federal government as a whole is irreparably harmed and that harm almost always outweighs the harm to the plaintiffs.'
Jackson also addressed the policy's roots in transphobia, pointing to Trump's executive order that denies the existence of transgender identities. She contrasted the passport's sex marker with birthplace, noting practical dangers: If a person's appearance doesn't match their listed sex, they risk 'invasive search, possibly even a strip search,' or being halted at borders. Legal scholar Steve Vladeck echoed this in a post, explaining that unlike birthplace, sex markers can affect how individuals are 'identified, screened, or otherwise perceived by foreign (or even U.S.) immigration officers.'
Dahlia Lithwick, a court watcher, described the decision as 'profoundly serious and upsetting,' part of a pattern where the court prioritizes certain harms over others. 'This is an ongoing siren flashing red about what this court continues to deem to be irreparable harm,' she said in a conversation with Stern.
The case originated from lawsuits filed by transgender and nonbinary individuals after the Trump administration repealed the 33-year-old policy in response to the president's executive order. The policy change was implemented without substantial justification beyond the order's language, which labeled transgender identity as a 'lie that is corroding American society,' according to Jackson's dissent.
Lower courts conducted extensive reviews, including balancing harms. The district court, for instance, reviewed evidence showing no government sacrifice in allowing preferred gender markers, while plaintiffs faced real-world dangers. Yet, the Supreme Court's order, issued on November 2025—specific date not detailed in records but reported as Thursday night—effectively ignored these findings, resolving the matter in 'four cursory paragraphs,' as Stern put it.
This shadow docket ruling fits into a broader trend of emergency orders favoring the Trump administration. Critics argue it bypasses full briefing and argument, limiting transparency. 'We’ve got extensive findings of fact by the district court. We have opinions below that are somehow just invisible to the majority,' Lithwick observed.
Looking ahead, the decision could have wide-reaching implications for transgender rights and travel. Advocacy groups may seek further review, though the merits of the case could return to the Supreme Court later. For now, trans and nonbinary Americans must navigate passports that may not reflect their identities, potentially exacerbating discrimination. As Jackson warned, this pattern of prioritizing executive whims over individual harms 'will continue indefinitely until we all name it too.'
The ruling underscores tensions in how the court handles emergencies, with some justices appearing to expand protections for presidential policies. While the majority saw no differential treatment, dissenters viewed it as rooted in animus, setting the stage for future legal battles over equality and executive power.