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The Trump administration on Friday asked the US supreme court to halt a judge’s order allowing transgender and non-binary people to choose the sex marker on their passports.
The justice department filed an emergency request to lift a federal judge’s order that bars the US state department from enforcing a Trump-directed policy.
The dispute is one of several over an executive order Trump signed after returning to office on 20 January directing the government to recognize only two biologically distinct sexes, male and female.
The court order allows transgender or non-binary people to request a male, female or “X” identification marker rather than being limited to the marker that matches the gender on their birth certificate.
The justice department argues the government cannot be required to use sex designations that it considers inaccurate on official documents. The administration in court papers argued that the judge’s order “has no basis in law or logic”.
“Private citizens cannot force the government to use inaccurate sex designations on identification documents that fail to reflect the person’s biological sex – especially not on identification documents that are government property and an exercise of the president’s constitutional and statutory power to communicate with foreign governments,” justice department lawyers wrote.
US district judge Julia Kobick in Boston issued a preliminary injunction in April that stopped the enforcement of the policy against six of the seven transgender and nonbinary people who sued to challenge the policy. She later expanded the scope of her ruling to halt the policy’s enforcement against all similarly situated transgender, nonbinary and intersex passport holders.
Kobick, an appointee of Joe Biden, found that the state department policy was arbitrary and rooted in an irrational prejudice toward transgender Americans that violated their equal protection rights under the US constitution’s fifth amendment.
The Boston-based first US circuit court of appeals declined on 4 September to put the judge’s injunction on hold, prompting the Trump administration’s request to the supreme court.
The plaintiffs are represented by the ACLU, the civil liberties group. Jon Davidson, senior counsel for the ACLU’s LGBTQ & HIV Project, on Friday called the administration’s policy “an unjustifiable and discriminatory action that restricts the essential rights of transgender, nonbinary, and intersex citizens”.
“This administration has taken escalating steps to limit transgender people’s health care, speech, and other rights under the constitution, and we are committed to defending those rights including the freedom to travel safely and the freedom of everyone to be themselves without wrongful government discrimination,” Davidson said.
Before Trump, the state department for more than three decades allowed people to update the sex designation on passports.
In 2022, Biden’s administration allowed passport applicants to choose “X” as a neutral sex marker on passport applications.
