Supreme Court Chooses Cruelty Over Evidence in Transgender Passport Case

Latest ruling continues pattern of dismissing transgender humanity

Jay Kaplan

Published: December 5, 2025 | Last Updated: December 10, 2025

Like so many others, I was heartbroken by the U.S. Supreme Court's decision that allows the Trump administration to enforce its executive order denying transgender and gender non-binary people the opportunity to obtain passports that accurately reflect their authentic lives.

Decided as part of the Court's emergency "shadow" docket, the conservative majority (with no justice identified as the author) provided a four-paragraph opinion that flippantly equated the harm of requiring transgender people to have passports showing their gender assigned at birth to requiring them to list their country at birth. In other words, the Court's conservative majority sees no damage in transgender people being forced to have passports that misgender and misidentify them, but sees irreparable harm to the Trump administration if it is not permitted to target this community yet again for both discrimination and cruelty.

Despite the fact that transgender people, since the George H.W. Bush administration, have been able to correct the gender markers on their passports, this Court does not believe that the Trump administration's actions are arbitrary, capricious, nor reflective of "a bare desire to harm a politically unpopular group."

You have to wonder on what planet this Court's majority resides.

Since January 2025, the Trump administration has issued a number of executive orders targeting the transgender community. Among other things, these orders have been used to deny transgender people the ability to enlist and serve in the military; access to medically necessary and in some cases life-saving treatment for transgender youth 19 and younger; the ability to play sports in accordance with their gender identity; and legal protection against discrimination under federal civil rights laws.

In addition, the current administration has threatened to take federal funding away from medical facilities that offer gender-affirming care to transgender youth. The administration has also threatened medical providers with criminal prosecution for providing such care and has subpoenaed patient records at hospitals providing such care. In addition, the Trump administration has threatened to remove funding to public school districts that support transgender students by recognizing their chosen names and pronouns, permitting them to access restrooms and play sports in accordance with their gender identity.

The Trump administration's goal is to essentially erase the acknowledgment and existence of transgender people and their ability to have their gender identity recognized and respected.

Thank goodness for Justice Ketanji Brown Jackson's 12-page dissent, where she details the documented harm transgender people experience when they have a passport that does not accurately reflect both their gender identity and gender presentation.

One of the plaintiffs, AC Goldberg, asserted that he was sexually assaulted by Transportation Security Administration (TSA) officers conducting searches on his body. Another plaintiff, Chastain Anderson, attested to being strip-searched by the TSA when traveling with identity documents that didn't reflect her gender expression. Two other transgender plaintiffs were accused of presenting fake identity documents and were forced to out themselves as transgender and non-binary to TSA agents.

To me, the fact that six conservative justices (and let's name them — Chief Justice Roberts, along with Justices Alito, Thomas, Gorsuch, Kavanaugh and Barrett) chose to dismiss the evidence showing how transgender people have been harmed demonstrates the utter failure of these justices to see the humanity of transgender people. That same failure was also reflective in the Court's Skrmetti decision earlier this year, where these same justices upheld the right of states to ban medically necessary care for transgender youth (in this case hormone therapy) to treat their gender dysphoria, while at the same time permitting cisgender youth to access the same medical treatment. It should also be noted that this same Court majority, through the shadow docket, lifted an injunction against the Trump administration's ban on transgender people enlisting or continuing to serve openly in the military. The conservative majority offered no opinion nor explanation of why it did so, leaving one to speculate that they also did not see any harm to transgender people who have honorably served in the military losing their careers because of who they are.

Is it any wonder that the transgender community and its allies are fearful about this Supreme Court hearing oral arguments on Jan. 13 in two cases (Little v. Hecox and W. Virginia v. BPJ) that address the constitutionality of bans of transgender students playing sports in accordance with their gender identity? Will this Court majority pay attention and give weight to actual facts regarding the participation of transgender girls in school sports and studies regarding competitive advantage? Will they acknowledge the value of transgender students to be able to meaningfully participate in school sports like their cisgender colleagues? Or will they continue to be legally disingenuous in order to reach a result that further marginalizes transgender people?

The Court majority's attitude toward transgender people reminds me of how the Supreme Court once treated gay people.

In the 1986 case Bowers v. Hardwick, the Court upheld the constitutionality of state laws that criminalized same-sex sodomy between consenting adults, even where such sexual behavior occurs in the privacy of one's home. Such laws were often used as a basis to legally justify discrimination against gay and lesbian people in employment, housing, education and public accommodations. Rather than viewing this case as involving a fundamental constitutional right of privacy, the court stated that there was no fundamental right to engage in same-sex sodomy. In doing so, the Court majority viewed gays not as people, but as presumed sexual behaviors.

It wasn't until 2003, in Lawrence v. Texas, that the Court finally struck down these laws as unconstitutional. Another tremendous leap forward in 2015, when the court, in Obergefell v. Hodges, ruled that same-sex couples nationwide have the right to marry, and in doing so recognized that gay and lesbian couples were real people, with children and families, who were negatively impacted by the prohibition on their ability to marry.

It is my hope that this Supreme Court will finally see the humanity of transgender people, and recognize that virtually every aspect of their lives is being attacked by the current administration.

Our federal courts were intended to establish a check and balance on the executive and legislative branches of our government.

How long, I wonder, will the Court's current conservative majority continue to ignore the harms and injustices done to transgender people when they are denied the same dignity and fairness accorded to other citizens?