11-12-2025
Early in his second presidency, President Trump signed an executive order directing the federal government to recognize only two sexes. Thus, the State Department began issuing passports with solely male or female designations, based on the individual’s gender at birth. Since 1992, the U.S. has allowed individuals to designate a sex different from that recorded at their birth with medical documentation. In 2021, the Biden Administration allowed people to self-select their gender on passports and added a third option, an “X,” for nonbinary individuals.
A group of transgender and nonbinary individuals sued following the executive order. They argued that the changes to the gender field on the passport application hurt them, harmed the government’s ability to identify citizens, and was unconstitutional in violation of the Fourteenth Amendment’s equal protection guarantee. A Massachusetts federal district court issued a preliminary injunction that stopped the policy from taking effect. The First Circuit Court of Appeals declined a request to pause the lower court’s injunction.
The Supreme Court issued a short, unsigned opinion granting the government’s request to pause the injunction. In its opinion, the Court stated that the passport policy did not violate the challengers’ right to equal treatment, and the policy could be explained beyond a “desire to harm a politically unpopular group.” The Court stated, “Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth.” It is “merely attesting to a historical fact without subjecting anyone to differential treatment.” The Court’s three liberal justices dissented.
Employers should remain aware of this evolving issue.