On November 6, 2025, the Supreme Court of the United States (“SCOTUS”) issued a decision in Trump v. Orr, granting the Government’s request to stay a preliminary injunction that would have required it to continue issuing passports with the “X” gender marker.
In her latest article, KingSpry’s Adoption and ART Practice Chair and Family Law Attorney, Dorota Gasienica-Kozak, Esq., discusses the case and its implications on transgender and non-binary U.S. citizens.
Historical Background
For over thirty (30) years, transgender Americans have been able to obtain a passport that reflects their gender identity. Starting in 1992, the Department of State (the “Department”) began permitting applicants to select a sex marker that differed from their sex assigned at birth, provided they submitted evidence of “surgical reassignment.” In 2010, this evidentiary requirement was eliminated. Instead, the Department began accepting a physician’s certification that the applicant was receiving “appropriate clinical treatment for gender transition.”
Later, under the Biden Administration, the Department announced that all U.S. citizens would be able to select an “X” as their gender marker on their U.S. passport application—as opposed to only “M” or “F.” Applicants would also be allowed to select their sex marker based on their gender identity. These changes were made to expand access to accurate identification documents for transgender and non-binary U.S. citizens.
Executive Order
On January 20, 2025, President Trump issued Executive Order No. 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (the “Order”). The Order re-defined “sex” as “an individual’s immutable biological classification as either male or female.”
Under the Order, Federal agencies were directed to take all necessary steps, as permitted by law, to end the Federal funding of “gender ideology.” Specifically, the Secretaries of State and Homeland Security and the Director of the Office of Personnel Management were directed “to implement changes to require . . . passports, visas, and Global entry cards, [to] accurately reflect the holder’s sex” (the “Passport Policy”).
The Passport Policy eliminated the option for applicants to obtain a passport with a sex marker reflective of their gender identity and to select an X marker.
The Case
In February 2025, seven transgender or nonbinary Americans (the “Plaintiffs”) filed a lawsuit against President Trump, Secretary of State Marco Rubio, and the Department (the “Government”). The Plaintiffs challenged the Passport Policy, arguing that it violates the Administrative Procedure Act and several constitutional rights.
In April 2025, the United States District Court for the District of Massachusetts granted the Plaintiffs’ motion for a preliminary injunction, which prevented the Government from enforcing the Passport Policy. Thereafter, the Plaintiffs filed an amended complaint to add additional plaintiffs to the lawsuit. The Plaintiffs also filed a class certification request which would extend the protections of the preliminary injunction to additional affected Americans.
In June 2025, the Court granted the Plaintiff’s class certification request and preliminary injunction, which extended the preliminary injunction to the following classes:
- “A class of all people (1) whose gender identity is different from the sex assigned to them under the Passport Policy and/or who have been diagnosed with gender dysphoria, and (2) who have applied, or who, but for the Passport Policy, would apply, for a U.S. passport issued with an “M” or “F” sex designation that is different from the sex assigned to that individual under the Passport Policy (“M/F Designation Class”);”
- “A class of all people whose gender identity is different from the sex assigned to them under the Passport Policy and who have applied, or who, but for the Passport Policy, would apply, for a U.S. passport with an “X” designation (“X Designation Class”).”
Thereafter, the Government filed a motion for a stay of the preliminary injunction with the United States District Court for the District of Massachusetts. However, the Court denied this request, and the Government filed an application for a stay with SCOTUS.
SCOTUS Weighs In
On November 6, 2025, SCOTUS granted the Government’s request to stay the preliminary injunction. This puts a temporary hold on the Massachusetts Court’s injunction and allows the Government to enforce the Passport Policy.
In its Majority Opinion, SCOTUS reasoned that “[d]isplaying 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.”
In her Dissenting Opinion, Justice Jackson adopted a different view from that of the Majority, writing, “[t]he Government seeks to enforce a questionably legal new policy, but it offers no evidence that it will suffer any harm if it is temporarily enjoyed from doing so, while the [P]laintiffs will be subject to imminent, concrete injury if the [Passport Policy] goes into effect.” Justice Jackson also expressed that the Majority “permits harm to be inflicted on the most vulnerable party.”
Current Standing
For now, the Government will continue to enforce the Passport Policy. The Department’s website indicates that it is no longer issuing U.S. passports or Consular Reports of Birth Abroad (CRBAs) with an X marker, providing, “[w]e only issue a passport with an M or F sex marker that matches the customer’s biological sex at birth.”
The Department reports that applicants may experience delays if they submit a passport application requesting an X marker or a marker that differs from their sex assigned at birth. Applicants may also receive correspondence requesting more information.
KingSpry’s Adoption and ART Practice Team will continue monitoring this case as the litigation continues.
