In an unsigned emergency order on Nov. 6, 2025, the U.S. Supreme Court allowed the Trump administration to enforce a rule requiring U.S. passports to list sex as assigned at birth, pausing a lower-court injunction. Justices Ketanji Brown Jackson, Sonia Sotomayor, and Elena Kagan dissented.
On Thursday, Nov. 6, 2025, the Supreme Court granted the government’s request for an emergency stay in Trump v. Orr, permitting the administration to enforce its requirement that new U.S. passports display sex assigned at birth while litigation continues. The order, which did not disclose individual votes, stayed a class-wide injunction issued by a federal district court in Massachusetts and left in place dissents from the Court’s three liberal justices. The case proceeds in the First Circuit, and the stay remains effective during the appeal and any subsequent petition to the Supreme Court.
The unsigned order said the government is likely to succeed on the merits and emphasized that passports are government documents with foreign-affairs implications. It concluded the government would suffer irreparable injury if the lower-court injunction remained in force. The Court also analogized the listing of sex at birth on passports to the listing of country of birth as a historical fact, while rejecting arguments that the policy on its face discriminates against transgender people.
Background
- For more than three decades, the State Department allowed transgender Americans to obtain passports with sex markers matching their gender identity: surgical proof was required until 2010, a doctor’s certification sufficed thereafter, and in 2021 applicants could self-select “M,” “F,” or “X” without medical documentation.
- In January 2025, President Donald Trump signed Executive Order 14168, directing agencies to recognize only two sexes and to ensure government IDs, including passports, reflect “biological” sex. The State Department subsequently reversed course for new issuances, while previously issued passports remained valid until expiration.
Lower-court rulings
- In April 2025, U.S. District Judge Julia Kobick granted a preliminary injunction for named plaintiffs, finding they were likely to succeed on claims that the new policy violated the Administrative Procedure Act and raising serious equal-protection concerns. In June, after certifying classes, the court extended relief to a broader group of affected applicants. The First Circuit later declined to stay that injunction pending appeal.
Dissent
Justice Ketanji Brown Jackson, joined by Justices Sotomayor and Kagan, criticized the majority’s intervention at the stay stage, arguing the government had not shown it would be harmed by temporarily maintaining the prior policy, whereas the plaintiffs faced immediate, concrete harms if the new rule took effect. Calling the Court’s approach “Such senseless sidestepping of the obvious equitable outcome has become an unfortunate pattern,” she also pointed to language in the January executive order as evidence of animus and noted the policy shift followed 33 years of contrary practice.
What comes next
The stay does not resolve the merits. The First Circuit appeal will continue, and the Supreme Court could be asked to review the case after a final appellate ruling. In the interim, the administration’s policy governs new passport applications.
