In Trump v. Orr, (Sup. Ct., Nov. 6, 2025), the U.S. Supreme Court by a 6-3 vote granted an emergency stay of a preliminary injunction that had been entered by a Massachusetts federal district court. The district court had enjoined, pending appeal, enforcement of the Trump Administration's policy of requiring U.S. passports to display the sex assigned to the passport holder at birth rather than the sex marker that matches their current gender identity. The challenged policy was put in place in compliance with a 2025 Executive Order on ... "Restoring Biological Truth to the Federal Government." In staying the injunction, the Supreme Court's majority said in part:
Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment. And on this record, respondents have failed to establish that the Government’s choice to display biological sex “lack[s] any purpose other than a bare . . . desire to harm a politically unpopular group.”
Justice Jackson, joined by Justices Sotomayor and Kagan filed a dissenting opinion, saying in part:
What the Government needs (and what it does not have) is an explanation for why it faces harm unless the President’s chosen policy is implemented now....
... [The government] provides no evidence of harmful confusion or other problems caused by transgender Americans who are using passports with sex markers corresponding to their current gender identity. To the contrary, as the plaintiffs’ experiences demonstrate, it is gender-incongruent passports that cause confusion and fail to provide a meaningful basis for identification.
As for the Government’s suggestion that the President is harmed by not being able to impose a uniform definition of sex across various regulatory schemes, that assertion is just another species of the far-fetched contention that the President must be injured whenever he is prevented from doing as he wishes....
Politico reports on the decision.
