The Supreme Court on November 6, 2025, granted a stay allowing the Biden administration’s successor to enforce a revised State Department policy requiring all newly issued U.S. passports to display a person’s sex assigned at birth, not their self-identified gender. This decision reverses a lower court’s injunction that had blocked the rule’s implementation nationwide.
The Court’s unsigned order clears the way for the Executive Branch to begin enforcing the passport directive immediately, even while litigation continues in the U.S. Court of Appeals for the First Circuit. Justice Ketanji Brown Jackson, joined by Justices Sonia Sotomayor and Elena Kagan, dissented, warning that the stay would impose real and immediate harm on transgender applicants who rely on accurate identity documentation.
At the heart of the case is a challenge brought by a group of transgender plaintiffs in Orr v. Trump, 1:25-cv-10313, U.S. District Court, District of Massachusetts. The plaintiffs argue that the policy, instituted by President Trump via Executive Order No. 14168 in January 2025, discriminates on the basis of sex and transgender status, violating the Equal Protection Clause and the Administrative Procedure Act (APA). The executive order mandated that all federal agencies adopt a uniform definition of sex based on “biological sex at conception” and directed the Secretary of State to align passport documentation accordingly.
Transgender Americans had been able to self-identify the sex marker on their passports since 2021. Prior to that, they could do so with a doctor’s certification. Before 2010, proof of surgical transition was required. The policy now in effect reverts to a standard not seen since before 1992.
In granting the stay, the Court held that “displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth.” The majority also stated that the government is “likely to succeed on the merits” of its position and would suffer “a form of irreparable injury” if the injunction remained in place.
Justice Jackson, dissenting in a 13-page opinion, said the government showed no urgency that justified immediate implementation of the policy. “All the Government is able to muster is the statement that ‘the injunction forces the government to misrepresent the sex of passport holders to foreign nations,’” she wrote, calling this insufficient. She added that transgender plaintiffs face not abstract, but concrete harms: heightened scrutiny, harassment, and violence when forced to present documents that misrepresent their identities.
The plaintiffs, including Zaya Perysian and Ashton Orr, submitted sworn testimony of past mistreatment by Transportation Security Administration officers when traveling with gender-incongruent documents. The District Court found that requiring use of such documents caused irreparable harm and issued a nationwide preliminary injunction in June 2025.
The Biden administration’s appeal of that injunction remains pending in the First Circuit. Unless the Supreme Court denies review, the stay will remain in place until a final ruling.
A petition for certiorari is expected if the First Circuit does not overturn the lower court’s ruling. No timeline for a final merits decision has been announced.
TLDR (Too Long / Didn’t Read Summary):
On November 6, 2025, the Supreme Court granted a stay allowing the enforcement of a Trump-era State Department policy that requires new U.S. passports to list the sex assigned at birth. The policy reverses a 33-year practice allowing transgender Americans to change sex markers on passports to reflect their gender identity. A district court had issued a nationwide injunction against the policy, citing irreparable harm to plaintiffs, but the Supreme Court lifted that injunction while the appeal proceeds. A final decision could come if the Court grants certiorari after the First Circuit appeal.
Legal Analysis and Commentary:
The Court’s ruling granting the government’s stay shifts the status quo in favor of the Executive Branch’s policy interests while legal challenges remain unresolved. At the heart of this case is a separation-of-powers question: How much leeway does the President have in dictating agency action when it intersects with protected constitutional rights?
The Court’s majority appears to treat the passport sex-marker issue as one of administrative formality, framing it as a historical record rather than a living identity document. This formalism could open the door to broader agency leeway in identifying personal characteristics, regardless of evolving social understandings or practical impact.
Justice Jackson’s dissent forcefully challenges this view by grounding the issue in concrete realities faced by transgender individuals. Her analysis shows that equity jurisprudence is not only about law, but also about real-world consequences. The State Department’s claim of harm lacks specificity, while the plaintiffs have shown credible, documented threats to their physical and emotional safety.
This case may also test how much weight courts give to executive orders when agencies use them to justify policy changes without new rulemaking. The dissent suggests the APA may still require procedural safeguards, even when agencies claim to be merely following presidential direction.
Ultimately, the stay doesn’t resolve the underlying legal claims. But it signals how the current Court views executive authority, statutory interpretation, and equitable harm. Whether that reading holds when the case returns on the merits could shape federal identity policy for years.
Case Caption and Link to Decision:
Trump v. Orr, No. 25A319, November 6, 2025
Supreme Court of the United States
Read the decision here (PDF): https://www.supremecourt.gov/opinions/25pdf/25a319_i4dj.pdf
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AI Disclaimer: This article was produced with the assistance of AI tools based on publicly available documents. All facts and quotations are drawn directly from the official Supreme Court opinion. No interpretations or quotes are fabricated.
Tags: transgender rights, passport policy, Supreme Court, executive order, equal protection
