The US Supreme Court issued an emergency order Thursday upholding President Donald Trump’s discriminatory policy barring transgender and nonbinary Americans from changing the gender listed on their passports from the gender assigned to them at birth.
Reversing a lower court decision blocking the policy in June, the six conservative justices assessed in an unsigned majority opinion that by requiring passports to reflect a person’s sex at birth, the State Department “is merely attesting to a historical fact without subjecting anyone to differential treatment.”
Justice Ketanji Brown Jackson wrote the dissent, which was joined by the two other liberals, Justices Elena Kagan and Sonya Sotomayor. Lamenting the Trump administration’s “routine” reliance on the court to issue emergency rulings, Brown wrote that she would have denied the request, because “the documented real-world harms to these plaintiffs obviously outweigh the government’s unexplained (and inexplicable) interest in immediate implementation of the passport policy.”
Last month, a group of transgender and nonbinary plaintiffs, represented by the ACLU, requested that the court reject the Trump administration’s petition for a stay on the lower court’s ruling blocking the policy. That ruling had come after transgender and nonbinary plaintiffs testified that they were afraid to submit passport applications to the government as a result of the policy.
“Forcing transgender people to carry passports that out them against their will increases the risk that they will face harassment and violence and adds to the considerable barriers they already face in securing freedom, safety, and acceptance,” said Jon Davidson, senior counsel for the ACLU’s LGBTQ & HIV Project.
The attorneys argued last month before the Supreme Court that the policy "irrationally undermines the very purpose of passports—identifying a US citizen when they travel” and also is “motivated by anti-transgender animus.”
That animus has been on display since Trump’s first day in office this term, when he signed an executive order declaring that his administration would only recognize “two sexes, male and female," based on one’s “biological classification” at birth.
The passport policy has already led to confusion, which the actress Hunter Schafer—a transgender woman—put on display in February, when she was issued a passport that identified her as male in conflict with both her appearance and other legal documents like her driver’s license.
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“This decision will cause immediate, widespread, and irreparable harm to all those who are being denied accurate identity documents,” said Jessie Rossman, legal director of the ACLU of Massachusetts, following the Supreme Court’s ruling Thursday. “The Trump administration’s policy is an unlawful attempt to dehumanize, humiliate, and endanger transgender, nonbinary, and intersex Americans, and we will continue to seek its ultimate reversal in the courts.”
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