The U.S. Supreme Court on Nov. 6 allowed the Trump administration to enforce a policy requiring passport sex markers to reflect biological sex assigned at birth. The decision reverses recent federal protections for transgender and nonbinary individuals seeking accurate identification documents. The unsigned order from the court enables the government to implement a policy that removes the option for an “X” gender marker on passports and requires transgender individuals to carry identification documents reflecting their sex assigned at birth.
The decision came despite a federal judge in Massachusetts having blocked the policy nationwide earlier this year, finding it likely violated constitutional equal protection principles.
The Trump administration’s passport policy, implemented this month, alters decades of State Department practice. Since 1992, Americans could obtain passports with sex markers different from those assigned at birth by providing certain medical documentation. In 2021, the Biden administration expanded these protections, allowing passport applicants to select an “X” marker for intersex and nonbinary individuals. The new rules require all passports to display the sex assigned to individuals at birth. Within 48 hours of the policy’s implementation, the State Department began pausing applications from transgender, intersex, and nonbinary people, while others received newly issued passports marked with their sex assigned at birth.
“Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth,” the Supreme Court stated in its order. The court’s majority concluded that the government was attesting to a historical fact without subjecting anyone to differential treatment.
Justice Ketanji Brown Jackson issued a dissent, joined by Justices Sonia Sotomayor and Elena Kagan. Jackson wrote that the court “has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.” She described the decision as part of a pattern she characterized as “senseless sidestepping of the obvious equitable outcome.”
Advocates have raised concerns about the practical implications of the policy. The ACLU, which challenged the policy on behalf of 12 transgender, nonbinary, and intersex plaintiffs, argued that requiring people to carry documents that do not match their gender identity creates additional risks.
Jon Davidson, senior counsel for the ACLU’s LGBTQ & HIV Project, stated, “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.”
Jessie Rossman, legal director of the ACLU of Massachusetts, said, “This decision will cause immediate, widespread, and irreparable harm to all those who are being denied accurate identity documents. The Trump administration’s policy is an unlawful attempt to dehumanize, humiliate, and endanger transgender, nonbinary, and intersex Americans.”
Melissa Firstenberg (she/her), a trans woman from Marlton, expressed concern about the policy’s impact. “I feel horrible for anybody who is transitioning now and attempting to deal with the pain that’s being inflicted upon them. It’s just done to inflict pain on a marginalized community. I’m afraid that my passport will be confiscated on the way out of the country.”
The federal government’s policy contrasts with New Jersey’s approach to gender identity recognition. The state allows residents to have their identities recognized on state-issued documents in ways that extend beyond binary categories.
Kyler Dineen (he/any), who identifies as nonbinary and is from Old Bridge, noted this difference, “Our state government at least is recognizing even an extension beyond male, female, and nonbinary, but a variety of ways in which people or terms, which people may want to identify themselves, which I think [is] really uncharted territory in a lot of states, and we’re lucky to live in a state that allows for that kind of freedom of expression. I think there’s a free speech argument here.”
Dineen also raised questions about the practical implications of mismatched documentation, “Let’s say I’m going into a court, right? Like, why am I having to disclose what my gender identity is or isn’t? Let’s say somebody’s pulled over, right? Like, you worry, ‘Oh, is a police officer going to treat me differently because of the X on my driver’s license?’ So that’s already a concern.”
New Jersey residents may now have state identification that differs from their federal documents, potentially creating complications when traveling internationally or interacting with federal agencies.
For applications already in process, outcomes remain uncertain and will depend on the progression of the court case
Garden State Equality provided guidance to affected community members following the ruling. The organization noted that the Supreme Court’s decision does not represent the final outcome of the legal challenge. Passports issued before the Nov. 6 ruling remain valid, including those with “X” gender markers. However, the organization advised transgender and nonbinary people against applying for new passports currently, noting that applications for gender marker changes will be rejected. For applications already in process, outcomes remain uncertain and will depend on the progression of the court case.
The Human Rights Campaign also responded to the decision. Cathryn Oakley, HRC senior director of legal policy, stated, “The Trump administration’s policy serves one purpose: discrimination. It exists to out our transgender friends and loved ones, to make their lives more difficult, to demean and embarrass them at the border, in the airport, and throughout their daily lives. The State Department had a process in place for decades that allowed trans and, more recently, non-binary people to have documents to present that identified them appropriately. These policies worked. There is no reason to change it other than malice.” Oakley noted that the Supreme Court that recognized marriage equality now “denies the dignity of transgender people by forcing them to carry identification documents that do not represent who they are and how they navigate the world.”
The ruling represents the second time the Supreme Court has allowed Trump administration policies affecting transgender Americans to proceed. In May, a divided court permitted enforcement of a ban on transgender service members in the military. Neither decision represents a final ruling on these policies, but rather determinations about their enforcement while litigation continues. The passport case took the Supreme Court more than a month to consider, longer than the less than two weeks required for the military ban decision.
The ACLU and its partners continue to challenge the policy in court. The preliminary injunction that was stayed by the Nov. 6 order had allowed the ACLU’s nationwide affiliate network to help transgender, nonbinary, and intersex people obtain accurate passports earlier this year. The case, Orr v. Trump, was filed in February 2025 in federal District Court for the District of Massachusetts by the American Civil Liberties Union, the ACLU of Massachusetts, and Covington and Burling LLP. The complaint was filed on behalf of seven individuals who had been unable to obtain passports matching their gender identity and was later amended to add five additional plaintiffs.
In April, the court granted a preliminary injunction, which was expanded in June following class certification. After the First Circuit Court of Appeals unanimously denied the government’s request to stay the preliminary injunction, the Trump administration filed an emergency appeal to the Supreme Court. Over 214,000 public comments opposing the State Department’s policy were collected by the ACLU and Advocates for Transgender Equality.
For New Jersey residents affected by this policy, several facts remain relevant. Existing passports with accurate gender markers remain valid under current guidance. Those considering international travel should verify their current documentation status. State-issued identification in New Jersey continues to operate under state policies that recognize gender identity beyond binary categories.
Local organizations including Garden State Equality continue to provide resources and information to community members navigating these policy changes. The legal challenge to the federal policy remains active in the court system, though the timeline for resolution is uncertain.
The administration’s policy applies to new passport applications, corrections, replacements, and renewals. The State Department has indicated it will enforce the policy as written while the legal challenge proceeds through the courts.
