Trump asks Supreme Court to block ‘gender identity’ passports

President Trump took the transgender fight back to the Supreme Court on Friday, asking the justices to block lower court rulings that would force him to issue passports conforming to applicants’ own gender identity, saying it’s at odds with “scientific reality.”

Solicitor General D. John Sauer said passports aren’t places for free speech or individual expression but rather are a form of communication with other governments that falls under a president’s foreign policy powers. Refusing to let the president set the policy infringes on his powers.

“A U.S. passport is a government document; it represents the speech of the government, not respondents,” he said.

President Biden created gender identity-friendly passports, letting Americans select M or F or even X as they chose. Mr. Trump issued an executive order revoking that and returning to the previous situation for passports to “accurately reflect the holder’s sex.”

Mr. Trump said that was safer and more secure than relying on a “subjective sense of self.”

“That policy is eminently lawful. The Constitution does not prohibit the government from defining sex in terms of an individual’s biological classification,” Mr. Sauer told the justices in a filing asking the high court to block the lower court rulings on the matter.

U.S. District Judge Julia Kobick, a Biden appointee to the court in Massachusetts, had issued an injunction erasing Mr. Trump’s policy nationwide.

She ruled that the restriction amounted to unlawful discrimination on the basis of sex, citing a 2020 Supreme Court case that found employment discrimination against transgender people illegal.

The 1st U.S. Circuit Court of Appeals backed Judge Kobick’s ruling.

Mr. Sauer, though, said the case is closer to last term’s Supreme Court ruling involving medical treatment for transgender children. In that case, the justices didn’t find sex discrimination in state laws restricting such treatment.

The solicitor general asked the justices to issue a stay blocking the lower court rulings from taking effect while the case continues to develop.

The Biden administration adopted the gender-identity-friendly policy in 2021.

The new “X” category was intended to allow for “identifying as non-binary, intersex and/or gender non-conforming.”

Intersex is the name given to when someone possesses sexual organs characteristic of both sexes.

Judge Kobick, in blocking the Trump policy, said withdrawing the Biden policy was a clear decision based on sex, which is what puts it into constitutionally suspect territory.

“The Passport Policy does indeed impose a special disadvantage on the plaintiffs due to their sex, and the court therefore concludes that it discriminates on the basis of sex,” she wrote.

That doesn’t automatically make it unconstitutional, but she said the government must have good justifications for such discrimination for it to survive scrutiny. She said the State Department’s stated goal of having a consistent definition of sex across government — which she called “an administrative convenience” — doesn’t meet that standard.