Supreme Court Lets Trump Enforce 'Sex at Birth' Passport Policy

The dispute stems from a January 20, 2025 executive order directing federal agencies to record sex on government identification according to what the order called sex determined at conception. The State Department then stopped letting applicants select an 'X' marker or update their sex designation, reversing a policy that had been in place since 2021.

The ACLU sued on behalf of transgender, nonbinary, and intersex plaintiffs, arguing the change violated equal protection, the constitutional right to travel, the First Amendment, and the Administrative Procedure Act. A federal judge in Massachusetts granted preliminary relief in the spring of 2025, and the First Circuit declined to disturb it, prompting the government to seek emergency intervention from the justices.

In a brief, unsigned order, the Supreme Court stayed the district court's injunction, allowing the administration to apply the passport policy nationwide while the case proceeds. The three liberal justices dissented from the order. The stay does not resolve the merits; it governs only what happens during litigation.

For transgender travelers, the practical effect is that passports issued under the policy may not match their gender identity, a mismatch advocates say can expose holders to scrutiny and risk at borders and in daily life. The underlying constitutional questions remain to be decided by the lower courts.