Supreme Court Allows Trump Administration to Enforce Policy Blocking 'X' Gender Marker on Passports

Supreme Court Reinstates Trump Administration Passport Policy

The U.S. Supreme Court on Thursday, November 6, 2025, allowed the Trump administration to enforce a policy that blocks transgender and non-binary individuals from selecting an 'X' gender marker on their passports. The decision, delivered by the Court's conservative majority in a 6-3 split, temporarily halts a lower court's injunction that had previously prevented the policy's implementation. This means the administration's directive, which mandates passports reflect an individual's 'biological sex at birth,' will remain in effect as legal challenges proceed.

Policy Reversal and Judicial Back-and-Forth

The policy at the center of the dispute stems from an executive order issued by President Donald Trump in January 2025, which declared that the United States would 'recognize two sexes, male and female,' based on birth certificates and 'biological classification.' This directive instructed the State Department to require government-issued identification documents, including passports, to 'accurately reflect the holder's sex.' This move reversed a policy enacted by the Biden administration in 2021, which had removed documentation requirements and allowed non-binary individuals to choose an 'X' gender marker on their passports. The first U.S. passport with an 'X' gender marker was issued in October 2021 under the Biden-era rules.

In response to the Trump administration's new policy, seven transgender and non-binary plaintiffs, represented by the American Civil Liberties Union (ACLU), filed a lawsuit. U.S. District Judge Julia Kobick issued a temporary injunction in April 2025, which was later expanded in June to cover a broader class of applicants, blocking the enforcement of the policy. The U.S. Court of Appeals for the 1st Circuit upheld Judge Kobick's ruling in September, leading the Trump administration to seek emergency relief from the Supreme Court.

Arguments For and Against the Policy

The Supreme Court's unsigned majority opinion stated that 'Displaying passport holders' sex at birth no more offends equal protection principles than displaying their country of birth,' asserting that the government is 'merely attesting to a historical fact without subjecting anyone to differential treatment.' Solicitor General D. John Sauer, representing the Trump administration, argued that private citizens cannot compel the government to use 'inaccurate sex designations' on official documents. The majority also suggested that preventing enforcement of the policy would harm the government, as passports fall within the domain of foreign affairs.

The Court's three liberal justices—Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor—dissented from the decision. Justice Jackson criticized the ruling as a 'pointless but painful perversion,' arguing that it 'paved the way for the immediate infliction of injury without adequate (or, really, any) justification.' She questioned the government's asserted urgency, particularly since existing passports with 'X' markers remain valid until their expiration. Advocates, including Jessie Rossman, legal director of the ACLU of Massachusetts, condemned the order as 'dangerous and discriminatory,' warning of 'immediate, widespread and irreparable harm' to transgender, non-binary, and intersex Americans. Plaintiffs argued that limiting passports to sex assigned at birth could lead to harassment or violence for transgender individuals and deprives them of usable identification documents.

Implications for Passport Applicants

As a result of the Supreme Court's decision, new passports issued by the State Department will now require applicants to select either 'M' for male or 'F' for female, reflecting their sex assigned at birth. The 'X' gender marker will no longer be an option for new applications, renewals, or replacements for lost or damaged passports. However, passports that currently have an 'X' marker or reflect a gender identity different from sex assigned at birth will remain valid until their expiration date.