Trump asks the Supreme Court to allow him to enforce transgender and nonbinary passport policy

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WASHINGTON (AP) — President Donald Trump’s administration asked the Supreme Court on Friday to let it enforce a passport policy for transgender and nonbinary people that requires male or female sex designations based on birth certificates.

The Justice Department appealed a lower-court order allowing people use the gender or “X” identification marker that lines up with their gender identity.

It’s the latest in a series of emergency appeals from the Trump administration, many of which have resulted in victories amid litigation, including on banning transgender people from the military.

The government argues it can’t be required to use sex designations it considers inaccurate on official documents. The plaintiffs, meanwhile, say the policy violates the rights of transgender and nonbinary Americans.

The State Department changed its passport rules after Trump, a Republican, handed down an executive order in January declaring the United States would “recognize two sexes, male and female,” based on what it called “an individual’s immutable biological classification.”

Transgender actor Hunter Schafer, for example, said in February that her new passport had been issued with a male gender marker, even though she submitted the application with the female gender marker she’s used for years on her driver’s license and passport.

A judge blocked the Trump administration policy in June after a lawsuit from nonbinary and transgender people, some of whom said they were afraid to submit applications. An appeals court left the judge’s order in place.

The Trump administration on Friday asked the Supreme Court to put the order on hold while the lawsuit plays out.

“The Constitution does not prohibit the government from defining sex in terms of an individual’s biological classification,” Solicitor General D. John Sauer wrote.

He pointed to the high court’s recent ruling upholding a ban on transition-related health care for transgender minors. The courts conservative majority found that law doesn’t discriminate on the basis of sex, and Sauer argued that finding also supports the Trump administration’s decision to change passport rules issued in 2021.

An attorney for the plaintiffs, on the other hand, said the passport rules are discriminatory.

“This administration has taken escalating steps to limit transgender people’s health care, speech, and other rights under the Constitution, and we are committed to defending those rights,” said Jon Davidson, senior counsel for the LGBTQ & HIV Project at the American Civil Liberties Union.