The Trump administration filed an emergency appeal to the Supreme Court, urging the justices to block an order mandating that passports be rooted in gender identity rather than biological sex.
“President Trump issued an Executive Order that defined ‘”[s]ex”‘ as “an individual’s immutable biological classification as either male or female,’ and required the Department of State to issue passports that ‘accurately reflect the holder’s sex’ based on that definition,” Solicitor General John Sauer wrote in the application, going on to declare that the policy is “eminently lawful.”
“The Constitution does not prohibit the government from defining sex in terms of an individual’s biological classification,” he wrote, adding, “U.S. passports are official government documents, addressed to foreign nations. The Executive Order in this case is an exercise of power conferred on the President both by the Constitution and by statute to determine the contents of U.S. passports.”
Under President Trump’s January order, officials are to “implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex.”
In June, Judge Julia Kobick claimed Trump’s policy likely violated the Fifth Amendment. The ruling extended protections to transgender, nonbinary, and intersex Americans seeking new or replacement passports, allowing them to choose male, female, or “X” markers.
Sauer wrote to the Supreme Court that because of the injunction’s “classwide scope, the government will be forced to contradict both biological reality and its own declared policy on potentially ‘tens or hundreds of thousands’ of passports.” He called the matter an “intolerable intrusion on the President’s foreign-affairs prerogatives.”
