Equal rights denied as Supreme Court allows Trump administration discriminatory passport policy

ACLU Washington, DC – The Supreme Court of the United States today granted a request from the Trump administration to stay a preliminary injunction in Orr v. Trump, allowing the government to enforce a discriminatory passport policy against transgender, nonbinary, and intersex people. The ACLU’s challenge to the policy continues.

“This is a heartbreaking setback for the freedom of all people to be themselves, and fuel on the fire the Trump administration is stoking against transgender people and their constitutional rights,” said Jon Davidson, Senior Counsel for the ACLU’s LGBTQ & HIV Project.

“Forcing transgender people to carry passports that ‘out’ them against their will increases the risk that they will face harassment and violence and adds to the considerable barriers they already face in securing freedom, safety, and acceptance. We will continue to fight this policy and work for a future where no one is denied self-determination over their identity.”  

Jessie Rossman, legal director of the ACLU of Massachusetts, said, “This decision will cause immediate, widespread, and irreparable harm to all those who are being denied accurate identity documents. The Trump administration’s policy is an unlawful attempt to dehumanize, humiliate, and endanger transgender, nonbinary, and intersex Americans, and we will continue to seek its ultimate reversal in the courts.”

The ACLU and its nationwide affiliate network have helped transgender, nonbinary, and intersex people around the country secure accurate passports since the preliminary injunction was put in place. Now that the policy will be enforced, anyone who applies for a new, corrected, or replacement passport or for a passport renewal is at risk of having their passport issued bearing the sex they were assigned at birth.

We will work to update those at risk of being affected by today’s Court order as we learn more from the State Department.  

On his first day in office in January 2025, Trump signed an executive order attempting to mandate discrimination against transgender people across the federal government and government programs. This included a directive to the Departments of State and Homeland Security “to require that government-issued identification documents, including passports, visas, and Global Entry cards, reflect a person’s sex “at conception.”

Within 48 hours, the State Department paused the processing of some passport applications submitted by transgender, intersex, and nonbinary people. It returned others with a newly-issued passport marked with their sex assigned at birth. The ACLU and Advocates for Transgender Equality collected over 214,000 public comments opposing the State Department’s new policy. 

In February 2025, Orr v. Trump was filed by the American Civil Liberties Union, the ACLU of Massachusetts, and Covington and Burling LLP, on behalf of seven people who had not been able to obtain passports that match who they are because of the State Department’s new Passport Policy or were likely to be impacted by the new policy upon their next renewal. The complaint was filed in the federal District Court for the District of Massachusetts.  The complaint was subsequently amended to add five additional transgender, nonbinary, and intersex plaintiffs and to seek to represent a class of transgender, nonbinary, and intersex passport holders. All twelve individual plaintiffs were appointed as class representatives. 

In April, the court granted a preliminary injunction requiring the State Department to allow six transgender and nonbinary plaintiffs in Orr v. Trump to obtain passports with sex designations consistent with their gender identity or with an “X” sex designation while the lawsuit proceeds. In June, the court granted a class certification request and expanded the scope of the preliminary injunction.

After the First Circuit Court of Appeals unanimously denied the government’s request to stay the preliminary injunction, the Trump administration filed a stay request to the Supreme Court of the United States.  Justice Jackson issued a dissent to today’s order, joined by Justices Sotomayor and Kagan.

The Gayly online. 11/6/2025 @ 3:39 p.m. CST.