Trump’s order, signed on Inauguration Day, reversed the Biden-era policy, which “has no basis in law or logic,” Solicitor General D. John Sauer wrote in a filing with the high court.
“Private citizens cannot force the government to use inaccurate sex designations on identification documents that fail to reflect the person’s biological sex – especially not on identification documents that are government property and an exercise of the President’s constitutional and statutory power to communicate with foreign governments,” Sauer wrote.
In a major decision over the summer, the high court upheld Tennessee’s ban on gender transition treatment for minors. That ruling bolstered the government’s position in the passport case, Sauer argued.
The Tennessee ruling found that a policy does not discriminate based on sex if it applies equally without treating any member of one gender worse than a similarly situated member of the other. Sauer wrote that Trump’s order meets that test because it applies equally, “defining sex for everyone in terms of biology rather than self-identification”.
Trump’s order declared that US policy is “to recognise two sexes, male and female”. After his order, the State Department required that passports be issued only with a gender identity of “M” or “F” that corresponded to the holder’s biological sex.
A dozen transgender, non-binary and intersex people filed a class-action lawsuit seeking to block the Trump initiative, saying it discriminated on the basis of sex.
“I’ve lived virtually my entire adult life as a man,” Reid Solomon-Lane, one of the plaintiffs, said in a statement at the time the lawsuit was filed. “If my passport were to reflect a sex designation that is inconsistent with who I am, I would be forcibly outed every time I used my passport for travel or identification, causing potential risk to my safety and my family’s safety.”
A federal judge in Massachusetts issued a preliminary injunction finding that the policy displayed “unconstitutional animus” toward transgender people and violated equal-protection guarantees in the Constitution.
That ruling was upheld by an appeals court before the Trump administration filed its emergency appeal with the Supreme Court.
The Supreme Court has steadily rolled back protections for gay and transgender people in recent rulings. Earlier this year, the justices temporarily allowed the Trump administration to ban transgender soldiers from the military.
The justices also ruled that religious parents can opt their children out of school lessons featuring gay- and lesbian-themed books that conflict with the parents’ religious beliefs.
The justices are weighing two major cases this term that deal with gay and transgender issues. In one, they will rule on the constitutionality of state bans on transgender people playing on girls’ and women’s sports teams in schools and universities.
In the other, the court will decide whether Colorado violated the free-speech rights of a Christian therapist by banning conversion therapy for minors, which aims to change the sexual or gender identity of gay and transgender young people.
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