Supreme Court Issues Major Opinion On Transgender Identity & The Trump Passport Policy
In a significant win for the Trump Administration, the United States Supreme Court issued an opinion on Thursday afternoon on the Trump Administration’s requirement that passport holders use their sex assigned at birth and that such requirements do not violate equal protection guarantees. While a brief, unsigned opinion issued on the interim docket, it represents a major ruling on the constitutional protections afforded to transgender individuals.
The case began with a challenge to an executive order issued on January 20, 2025, declaring that the federal government would only “recognize two sexes, male and female.” The order instructed the State Department to “require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex.”
The litigants alleged that the order and underlying policy were a denial of equal protection.
I previously discussed the Supreme Court’s upholding a Tennessee ban on transgender medical treatments for adolescents. One of the most notable aspects of this decision was the concurrence of Justice Amy Coney Barrett, rejecting the claim that transgender status qualifies as a group entitled to heightened scrutiny under the Constitution.
Chief Justice John Roberts wrote that “The Equal Protection Clause does not resolve these disagreements.” However, the Court stressed that “This Court has not previously held that transgender individuals are a suspect or quasisuspect class. And this case, in any event, does not raise that question because SB1 does not classify on the basis of transgender status.”
In her concurrence, Justice Amy Coney Barrett directly rejected the claim:
The Sixth Circuit held that transgender individuals do not constitute a suspect class, and it was right to do so.3 To begin, transgender status is not marked by the same sort of “‘obvious, immutable, or distinguishing characteristics’” as race or sex.
…Nor is the transgender population a “discrete group,” as our cases require.
…The boundaries of the group, in other words, are not defined by an easily ascertainable characteristic that is fixed and consistent across the group. Finally, holding that transgender people constitute a suspect class would require courts to oversee all manner of policy choices normally committed to legislative discretion.
…The conclusion that transgender individuals do not share the “obvious, immutable, or distinguishing characteristics” of “a discrete group” is enough to demonstrate that transgender status does not define a suspect class.
…The Equal Protection Clause does not demand heightened judicial scrutiny of laws that classify based on transgender status. Rational-basis review applies, which means that courts must give legislatures flexibility to make policy in this area.
While that was a concurrence with only Justice Thomas, I wrote at the time that the concurrence “likely speaks to the view of a three or four other members on the Court.”
It now appears that it clearly did represent the majority’s view.
In this opinion, the Court rejects the rulings of U.S. District Judge Julia Kobick, a Biden appointee in Massachusetts, and the United States Court of Appeals for the First Circuit on the injunction of the policy. Both courts would have forced the Trump Administration to issue passports to transgender and nonbinary Americans that reflect the sex designation of their choosing.
However, the Court ruled that “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.”
In rejecting the equal protection claim, the Court added that there is no evidence that a policy requiring a passport to display the holder’s biological sex can only be the result of “a bare . . . desire to harm a politically unpopular group.” It further found that the challengers are unlikely to prevail under the Administrative Procedure Act as “arbitrary and capricious.”
The Trump administration is thus “likely to succeed on the merits” of its defense against the challengers’ claims, the court wrote. And because Kobick’s order “enjoins enforcement of an Executive Branch policy with foreign affairs implications concerning a Government document,” the court said, the government “will ‘suffer[] a form of irreparable injury’” if the order is not paused.
That produced another fiery dissent from Justice Ketanji Brown Jackson in her dissent, which Justices Sonia Sotomayor and Elena Kagan joined.
Jackson slammed her colleagues:
“The Court … 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.”
Jackson dismissed the opinion as a type of “back-of-the-napkin assessment” in a cursory opinion. She objected that, not only had the Administration not shown any irreparable harm absent emergency relief, but the challengers “have shown they will suffer concrete injuries if the Government’s Passport Policy is immediately enforced.” She concluded by claiming that “the Court’s failure to acknowledge the basic norms of equity jurisdiction is more than merely regrettable. It is an abdication of the Court’s duty to ensure that equitable standards apply equally to all litigants—to transgender people and the Government alike.”
The opinion substantially reinforced Barrett’s earlier position. While the government had the advantage of a case in an area where considerable deference is given to executive decision-making, the underlying equal protection holding is a major setback for advocates seeking to establish transgender status as protected in the same way as race or religion.
Tyler Durden
Fri, 11/07/2025 – 17:40