Supreme Court: Trump Administration Rules on Passport Gender Markers Can Go into Effect While Appeals Move Forward

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.

Passport Denial Violated RFRA

In Jordan v. Rubio, (D DC, July 29, 2025), a D.C. federal district court held that the State Department violated the Religious Freedom Restoration Act by denying a passport to plaintiff because she refused for religious reasons to furnish a birth certificate or a letter confirming that she lacks one. The court said in part:

All her life, Abigail Carmichael Jordan has avoided the perceived stain of a Social Security Number (“SSN”)....  Her devout Christian faith teaches her “that her God-given identity is sacred, and that the allegiance she owes to her government as a citizen of the United States must be subordinate to her allegiance to her Creator.”...  She thus rejects the possibility of being “enumerated” or “marked” by the government, such as by obtaining an SSN, as to do so “would be treating the Government as if it were God.” ... (citing Revelation 13:16–18)....  Indeed, her parents “did everything in their power to ensure that [she] did not receive a birth certificate when she was born ... for fear that applying for a birth certificate would result in the issuance of an SSN....

In short:  The Department withheld a coveted public benefit unless Jordan abandoned the teachings of her faith.  Such carrot-dangling is the classic example of a substantial burden on religious exercise....

It very well may be that Jordan never faced a substantial risk of receiving an unwanted SSN—at birth or during adulthood.  But for Jordan’s RFRA claim, the actual risk is irrelevant.  What matters is whether Jordan sincerely believes that applying for a Letter of No Record conflicted with her faith because it exposed her to the unacceptable possibility that she would be stained with an SSN.  And here, there is no dispute that Jordan honestly believes this.... So the Court must credit her fears—it may not tell Jordan that she is mistaken about the dictates of her own faith.

State Department Will Accommodate LGBTQI+ Citizens In Passport Designations

The U.S. State Department in a press release dated June 30 announced: 

the Department will be taking further steps toward ensuring the fair treatment of LGBTQI+ U.S. citizens, regardless of their gender or sex, by beginning the process of updating our procedures for the issuance of U.S. Passports and Consular Reports of Birth Abroad (CRBA).

Most immediately, we will be updating our procedures to allow applicants to self-select their gender as “M” or “F” and will no longer require medical certification if an applicant’s self-selected gender does not match the gender on their other citizenship or identity documents.  The Department has begun moving towards adding a gender marker for non-binary, intersex, and gender non-conforming persons applying for a passport or CRBA.  We are evaluating the best approach to achieve this goal.

TLDEF issued a press release reacting to the announcement.

State Department Allows "Israel" To Be Listed As Birthplace On Passports of Americans Born In Jerusalem

Last Wednesday, Politco reported:

The Trump administration is expected to soon announce that the U.S. passports of Americans born in Jerusalem can now mention Israel as the country of birth.

The decision, confirmed by a U.S. official Wednesday, is the latest by President Donald Trump that favors Israel in the long-running Israeli-Palestinian conflict. It could be revealed as early as Thursday, just days before next week’s U.S. presidential election, and it could help Trump as he seeks to turn out evangelical Christians and other voters in his base who strongly support Israel.

Public confirmation of this policy change appears to have been made through a Tweet by Secretary of State Mike Pompeo reading:

Consistent with President @realDonaldTrump's policy, I am happy to announce U.S. citizens born in Jerusalem can now elect to list their place of birth as either "Jerusalem" or "Israel" on their passports. We remain committed to lasting peace between Israelis and Palestinians.

As reported by Al Jazeera, yesterday US Ambassador to Israel David Friedman ceremonially presented the first such passport to Menachem Zivotofsky.

An attempt by Congress to change the passport policy was invalidated by the Supreme Court in 2015 on the grounds that it infringed the President's exclusive power to recognize foreign governments. (See prior posting.)

RFRA Claim For Insisting On Social Security Number In Passport Application Moves Ahead

 In Carmichael v. Pompeo, (D DC, Aug. 28, 2020), three individuals sued the State Department because it insisted that they furnish their Social Security numbers in order to renew their passports. Plaintiffs claim that identifying themselves with Social Security numbers violates their Christian beliefs. The court dismissed most of plaintiffs' claims, but allowed them to move forward, among others, with their claim under the Religious Freedom Restoration Act. The court concluded that plaintiffs had adequately alleged a substantial burden on their religious exercise:

They must choose between adhering to their religious beliefs—the sincerity of which is not challenged by the Government nor questioned by the Court—and receiving a government benefit.

10th Circuit Hears Oral Arguments On Passport Gender Markers

The U.S. Court of Appeals for the 10th Circuit yesterday heard oral arguments (audio of full arguments) in Zzyym v. Pompeo. In the case, a Colorado federal district court held that the State Department's policy on passport gender designations is arbitrary and capricious under the Administrative Procedure Act. (Full text of district court's 2018 opinion). The Department requires selection of "M" or "F" as gender on passport applications, and refused to allow plaintiff who is an intersex individual to select "X" as a gender marker. Lambda Legal's case page has extensive additional information and links to pleadings, briefs and decisions in the case.