Supreme Court Lifts Block on Trump Anti-Trans Passport Policy While Lawsuit Continues

Ruling allows enforcement during legal challenge but isn't final decision on the case

Published: November 7, 2025 | Last Updated: November 7, 2025

The U.S. Supreme Court on Nov. 6 cleared the way for the Trump administration to enforce a passport policy that forces trans, nonbinary and intersex Americans to carry identification that doesn't match who they are — at least for now.

The 6-3 decision lifts a temporary court order that had blocked the policy while a lawsuit challenging it moves through the courts. It's not a final ruling on whether the policy is legal, but it means the restrictions can take effect immediately as the case continues.

A federal judge in Massachusetts had issued what's called a preliminary injunction — essentially a pause button on the policy — after finding it likely discriminated based on sex. But the Supreme Court's conservative majority removed that protection Nov. 6, allowing enforcement to proceed while litigation continues.

"I just think what they did shows a shocking disregard for the humanity of transgender people," Jay Kaplan, staff attorney for the ACLU of Michigan's LGBT Project, told Pride Source. "To say that there's no harm in having to have your biological gender on your passport to transgender people is just like, what planet are you living on?"

What the ruling means

The policy reverses more than 30 years of State Department practice. Since 1992, passport applicants could request a sex marker different from their birth certificate with medical documentation. In 2021, the Biden administration added an "X" marker option for nonbinary and intersex people.

Trump eliminated both options in January through an executive order declaring the U.S. government would recognize only two sexes. The new policy requires all passport sex markers to match sex assigned at birth.

Sex markers weren't added to U.S. passports until 1977, and the reason was fashion, not security. According to State Department memos, officials were concerned that androgynous hairstyles and unisex clothing trends of the 1970s made it harder to determine someone's sex from their passport photo. The International Civil Aviation Organization adopted the requirement that same decade, though it never explained why knowing a traveler's sex was necessary for identification purposes.

While some countries have followed similar binary-only policies, others have taken different approaches. The Netherlands began removing gender markers from national identity documents altogether in 2020, determining they were unnecessary for identification. Countries including Germany, Malta, Iceland, the Netherlands, Canada, Australia, New Zealand, Argentina and India currently allow nonbinary or third gender markers on passports.

Federal District Judge Julia Kobick blocked the Trump administration's passport policy earlier this year, finding it discriminated based on sex and warranted heightened judicial scrutiny. A federal appeals court agreed. But the Supreme Court's emergency order now allows enforcement to proceed.

The court offered minimal explanation in its unsigned, four-paragraph order, stating that "displaying passport holders' sex at birth no more offends equal protection principles than displaying their country of birth."

Kaplan said the decision follows a troubling pattern of the Trump administration using the Supreme Court's "shadow docket" to bypass lower court rulings. The shadow docket is an emergency process where the court often provides little explanation for major decisions.

"Every time the administration doesn't like an initial ruling in a case, they go to the Supreme Court on this emergency shadow docket where the court usually doesn't even offer any explanation for what it does," Kaplan said.

He emphasized this isn't a final decision. The lawsuit will continue in Massachusetts federal court and will eventually return to the Supreme Court for a full hearing. But significant harm will occur in the meantime.

During the seven months the temporary block was in place, plaintiffs presented evidence of harassment by TSA agents, strip searches and hostile questioning at airports and customs when traveling with inaccurate passports.

The lead plaintiff, Ashton Orr, a trans man from West Virginia, applied for a passport with a male sex marker in January but was told he could only receive a female designation.

The ACLU, which represents plaintiffs in the case, called the decision "a heartbreaking setback for the freedom of all people to be themselves."

"Forcing transgender people to carry passports that out them against their will increases the risk that they will face harassment and violence," said Jon Davidson, senior counsel for the ACLU's LGBTQ & HIV Project, in a news release.

What happens next

Emme Zanotti, director of advocacy at Equality Michigan Action Network, said the ruling underscores the importance of state-level protections. "I'm deeply saddened by this Supreme Court once again giving deference to an administration that repeatedly cannot justify its ambitions nor defend the harm it's inflicting on us," she told Pride Source. "Our transgender and non-binary friends, family and neighbors deserve better from their country."

"But make no mistake, Michigan is a state where transgender and nonbinary people can still freely amend their state-issued IDs and birth certificates to reflect who they are," she added. "We at Equality Michigan will work tirelessly to keep it that way."

If you already have a valid passport that reflects your gender identity, you can continue using it. But new applications and renewals will now be subject to the Trump administration's restrictions.

"If you have a current passport that's current and operative that reflects your gender identity, that passport is good. You're able to use that," Kaplan said. "But you can't do it now" for new applications.

Anyone encountering difficulties with passports or problems while traveling should contact the ACLU for assistance.

This marks the second time the conservative-majority Supreme Court has greenlit a Trump administration policy targeting trans Americans. In May, the court allowed enforcement of a ban on trans service members in the military.

Justice Ketanji Brown Jackson, joined by Justices Sonia Sotomayor and Elena Kagan in dissent, didn't mince words. "Such senseless sidestepping of the obvious equitable outcome has become an unfortunate pattern," Jackson wrote. "This court has once again paved the way for the immediate infliction of injury without adequate justification."

Kaplan drew parallels between the current court's treatment of trans people and past Supreme Court decisions targeting other marginalized groups, including the 1986 ruling upholding same-sex sodomy laws.

"They defined gay people solely in terms of presumed sexual behavior. There was no sense of humanity that these people were actual people," Kaplan said. "I think this court has demonstrated through the Skrmetti decision, through lifting a preliminary injunction against a military ban and now, in this case, this majority has shown that they don't see transgender people as human beings."

He said the decision should serve as a reminder about the stakes of judicial appointments.

"How did we get a court like this? We got a court like this from the 2016 election and the importance of people understanding that elections have consequences, the need to vote informed, but even more so the need to vote," he said.

Despite the setback, Kaplan remained resolute. "We will prevail one of these days. It's just very frustrating that this court seems bent on doing the will of this administration."