Advocates argue that mandating male or female gender markers on passports is discriminatory and lacks justification.
Published On 20 Sep 2025
The Trump administration has petitioned the Supreme Court to permit enforcement of a policy that prohibits passports from reflecting the gender identities of transgender and non-binary individuals.
On Friday, the Department of Justice submitted an urgent appeal seeking to overturn a federal judge’s injunction that barred the State Department from implementing a rule mandating that passports display only male or female sex markers.
Government attorneys contended that officials should not be compelled to assign “inaccurate sex designations on official identification,” emphasizing that passports are federal property and represent the president’s constitutional and statutory authority in diplomatic communications.
Jon Davidson, senior legal counsel at the ACLU, which represents the plaintiffs, condemned the administration’s stance as “an unjustifiable and discriminatory measure that infringes on the fundamental rights of transgender, nonbinary, and intersex individuals.”
He added, “This administration has progressively curtailed transgender people’s access to healthcare, freedom of expression, and constitutional protections. We remain steadfast in defending their rights, including the ability to travel safely and live authentically.”
The current administration aims to rescind a policy introduced under President Joe Biden in 2022, which permitted passport applicants to select “X” as a gender-neutral option or self-identify as “M” or “F.”
According to data from UCLA’s Williams Institute, approximately 1.6 million Americans identify as transgender, 1.2 million as non-binary, and 5 million as intersex.
Presidential Directive
This legal battle is part of a broader conflict stemming from an executive order issued by President Trump upon his return to office in January, which mandates recognition of only two biologically defined sexes.
The order characterizes “sex” strictly as an individual’s unchangeable biological classification as male or female and instructs the State Department to issue passports that “accurately reflect the holder’s sex” according to this definition.
Consequently, numerous transgender individuals have reported receiving passports with gender markers that do not correspond to their gender identity.
For instance, transgender actress Hunter Schafer revealed in February that her newly issued passport bore a male gender marker, despite her application specifying female, consistent with her driver’s license and previous passport.
In June, a federal judge blocked the Trump administration’s policy following a lawsuit filed by transgender and nonbinary plaintiffs, some of whom expressed fear about applying for passports under the new rules.
An appellate court upheld the injunction, maintaining the prohibition on enforcing the policy.
On Friday, the Trump administration requested the Supreme Court to suspend the injunction pending the outcome of ongoing litigation.
Solicitor General D. John Sauer argued, “The Constitution does not forbid the government from defining sex based on biological classification.”
He referenced the Supreme Court’s recent decision upholding restrictions on transition-related healthcare for transgender minors, ruling that such measures do not constitute sex discrimination.
