United States President Donald Trump’s administration has asked the Supreme Court to let it go ahead with a ban on passports stating the gender identities of transgender and non-binary citizens.
The Department of Justice filed an emergency request on Friday to lift a federal judge’s order that had prevented the Department of State from enforcing a policy requiring binary male or female sex designations on passports.
Justice Department lawyers argued that the government could not be forced “to use inaccurate sex designations on identification documents” that are “government property and an exercise of the president’s constitutional and statutory power to communicate with foreign governments”.
Jon Davidson, senior counsel for civil liberties group ACLU which is representing the plaintiffs, said on Friday that the administration’s policy is “an unjustifiable and discriminatory action that restricts the essential rights of transgender, nonbinary, and intersex citizens”.
“This administration has taken escalating steps to limit transgender people’s health care, speech, and other rights under the Constitution, and we are committed to defending those rights including the freedom to travel safely and the freedom of everyone to be themselves,” he said.
Trump’s administration is seeking to reverse a policy introduced by the administration of former president Joe Biden in 2022, which had allowed passport applicants to choose “X” as a neutral sex marker on their passport applications and to self-select “M” or “F” for male or female.
An estimated 1.6 million people in the US identify as transgender, while 1.2 million identify as non-binary and 5 million as intersex, according to UCLA’s Williams Institute.
Executive order
The dispute is one of several, including a ban on serving in the military, relating to an executive order signed by the president after he returned to office in January, which directed the government to recognise only two biologically distinct sexes.
Trump’s executive order defined “sex” as “an individual’s immutable biological classification as either male or female” and required the State Department to issue passports that “accurately reflect the holder’s sex” based on that definition.
As a result of the order, a number of transgender people have reported receiving passports with inaccurate gender markers.
Transgender actor Hunter Schafer said in February that her new passport had been issued with a male gender marker, even though she submitted the application with the female gender marker she used on her driver’s licence and previous passport.
A federal judge blocked the Trump administration policy in June after a lawsuit from nonbinary and transgender people, some of whom said they were afraid to submit applications.
An appeals court left the judge’s order in place.
The Trump administration on Friday asked the Supreme Court to put the order on hold while the lawsuit plays out.
Solicitor General D John Sauer wrote: “The Constitution does not prohibit the government from defining sex in terms of an individual’s biological classification.”
He pointed to the high court’s recent ruling upholding a ban on transition-related healthcare for transgender minors on the basis that it did not discriminate on the basis of sex.
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