U.S. Supreme Court Sides With Trump Policy On Passport Gender Identification – But It’s Not The Final Ruling

November 10, 2025 Margaret Hetherman

Reversing Biden policy, passports will be restricted to only “male” and “female” markers, based on sex assigned at birth, while the legal challenge plays out.

Featured Image: Getty Images (credit, David Buffington)

The Supreme Court has issued an unsigned order giving the Trump Administration authority to restrict passport gender markers to “male” and “female,” based on sex assigned at birth. The previous option of “X,” which had been introduced under Biden, will not be an option. The order, delivered on November 6, grants the Trump administration’s request to stay a preliminary injunction in Orr v. Trump, allowing the government to enforce it’s discriminatory passport policy while the legal challenge plays out.

While the conservative-majority court order states that this new policy is not discriminatory, it is widely seen as targeting transgender, gender-nonconforming, nonbinary, and intersex (TGNCNBI) Americans – and part of the larger campaign to strip trans people of the right to move freely in the world.

As GO reported in October, this has been in the making since “day one,” when Trump issued an Executive Order to “recognize two sexes, male and female.” In that EO, the State Department was directed to “require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex.”

The ACLU and Covington & Burling LLP had responded, challenging the Trump Administration’s attempt to stop issuing passports with the “X” designation and also to allow people to choose a gender marker different from the sex listed on their birth certificate. Following Thursday’s SCOTUS order, ACLU’s Jon Davidson, Senior Counsel said in a statement:

“This is a heartbreaking setback for the freedom of all people to be themselves, and fuel on the fire the Trump administration is stoking against transgender people and their constitutional rights. 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.”

On Sunday in a poignant opinion piece, M. Gessen, author and LGBTQ rights activist, also addressed the very real threat this development poses to gender non-conforming people, as well as the “meaninglessness and uselessness of all gender designations,” drawing on their own personal experience: “Why did the border officers need to know my gender at all? I match the age indicated in my passport. The photo is mine. New technology makes it close to impossible to travel using a look-alike’s documents; many passports contain iris scans and fingerprints.”

Gessen speaks to the possibility of “dire” consequences for Americans traveling abroad. “If your appearance does not match your gender presentation, you may be unable to move across borders or board planes. No airline wants to take the risk of transporting people who aren’t who they say they are.” Gessen mentions a friend who basically detransitions when she flies, hiding her long hair and wearing baggy men’s clothes so her look matches her documents. In some countries and scenarios, the discrepancy could place a traveler in grave danger.

This concern was exactly why three justices dissented. In the dissenting opinion, Justice Ketanji Brown Jackson (joined by Justices Sonia Sotomayor and Elena Kagan) wrote: “This Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification. Because I cannot acquiesce to this pointless but painful perversion of our equitable discretion,” she wrote, “I respectfully dissent.”

She also indicated that transgender and nonbinary people who sued over the policy have reported being sexually assaulted, strip-searched and accused of presenting fake documents at airport security checks.

That being said, Lamda Legal notes that there have been no confirmed incidents where individuals were unable to leave or reenter the United States using an unexpired passport issued prior to the 2025 policy changes, including those with an X gender marker. There have also been no verified reports of passports being confiscated upon reentry.

This new policy will affect renewals and first-time applicants. For TGNCNBI travelers who currently hold passports that reflect their gender identities, passports are valid until the expiration dates.

Lamda Legal updated guidance for travelers who might be affected.

“It’s understandable to feel scared, angry, or overwhelmed in response to the Gender Order and related federal actions,” the organization notes. “These policies are designed to create uncertainty and impose barriers in daily life—but they do not erase the existence, worth, or contributions of TGNCNBI people.”

Keep in mind that the legal challenge is still being played out, and the ACLU and other advocacy powerhouses are fighting hard around the merits of the case.

If you experience problems while traveling, reach out to Lambda Legal’s Help Desk for additional information and support.