Supreme Court moves against passports

The U.S. Supreme Court on November 6, granted the Trump administration's request to delay implementation of a lower court decision that said passport applicants could self-identify gender, including with an "X" designation.

The procedural action comes just two weeks after the Supreme Court refused a motion by a transgender college student who sought to withdraw her petition to the court in a case involving women's sports.

In this week's development, the Supreme Court divided 6 to 3 along fairly entrenched political lines to grant Trump's request to stay a U.S. District Court's nationwide injunction. The injunction, issued by the lower court in June and upheld by a First Circuit U.S. Court of Appeals panel September 4, temporarily prevented enforcement of a Trump executive order, signed January 20, declaring that all federal agencies would recognize only "male" or "female" as sex designations.

The ACLU filed the suit, Orr v. Trump, on behalf of Ashton Orr and 11 other transgender and non-binary citizens, saying the executive order violates their right to equal protection of the law and demonstrates "unconstitutional animus toward transgender Americans." The injunction would have allowed applicants to identify their own gender on their passports —as male, female, or X— until the court could hear arguments on the ACLU's constitutional challenge. 

The district court granted the injunction, pending arguments on the merits of the case, saying "the plaintiffs have introduced uncontroverted evidence of the harms that transgender and non-binary people face if they are required to use passports bearing sex designations aligning with their sex assigned at birth rather than their gender identity."

In granting a stay of the injunction, the Supreme Court majority, in an unsigned order, saying the injunction had "foreign policy implications" that could cause irreparable harm to the government. Anticipating a future appeal on the merits of the case, the majority said the stay would remain in place until the Supreme Court decides whether to hear the case.

"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 ACLU senior counsel Jon Davidson. "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."

Writing for herself and Justices Sonia Sotomayor and Elena Kagan, Justice Ketanji Brown Jackson said, "This Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification. Because I cannot acquiesce to this pointless but painful perversion of our equitable discretion, I respectfully dissent."

While the number of plaintiffs in the ACLU lawsuit numbers 12, the First Circuit estimated about 40 people could be affected by the Trump policy.

The case now returns to the First Circuit for a ruling on the merits of the dispute.

Trans athlete seeks to withdraw

In a separate case involving transgender plaintiffs, Hecox v. Idaho, the U.S. Supreme Court on October 20 rebuffed an ACLU request to withdraw its case in which a transgender female student sought the right to play competitive sports on teams of female athletes.

The student, Lindsay Hecox, won her lawsuit at the federal appeals court for the Ninth Circuit. She was challenging an Idaho law enacted in 2020, that barred transgender women from women's athletics at the high school and college levels.

But the state of Idaho, with the help of the anti-LGBTQ+ organization Alliance Defending Freedom, petitioned the U.S. Supreme Court to overturn the lower court ruling. The Supreme Court announced July 3 that it would hear the state's appeal, but the ACLU formally notified the Supreme Court September 2 that Hecox had voluntarily withdrawn her original lawsuit. The organization said that makes the legal conflict moot.

Idaho and the Alliance filed a brief, opposing a declaration that the case was moot. They said Hecox was trying to manipulate the legal system to avoid a decision from the Supreme Court on the matter. And they noted that, as a current student at Boise State University, the 24-year-old Hecox could still try to play on a women's sports team.

In a one-sentence order October 20, the Supreme Court said only that Hecox's "request that the Court dismiss the case as moot is deferred pending oral argument." A date has not yet been set for that argument but it was not put on the December calendar so January is likely the soonest the court will take up the matter.

On October 7, it heard oral arguments in a case, Chiles v. Salazar (Colorado), asking whether a state law that bans therapists from using conversion therapy on minors violates the First Amendment speech rights of therapists. Many court observers said following that argument that the court appeared to side with the therapist, represented by the Alliance Defending Freedom.

The Supreme Court also has a number of other LGBTQ+-related petitions before it. One that is getting the most attention is Kim Davis v. Ermold, primarily because it is the first case before the Supreme Court seeking to overturn Obergefell v. Hodges. The Obergefell decision, in 2015, ruled that state laws could not refuse marriage licenses to same-sex couples. Kim Davis was a clerk for a Kentucky county in 2015 and refused to issue marriage licenses to same-sex couples. In this, her second, petition to the Supreme Court, Davis is asking to be excused from personally paying a $100,000 fine for refusing to issue a license to David Ermold and David Moore. In filing that petition, she added a question, asking the Supreme Court to overturn Obergefell.

Jenny Pizer, Senior Director of Strategic Initiatives at Lambda Legal, said "it's hard to say for sure what's going to happen" but that reversal of Obergefell "has not been a top goal" of the Trump administration. While both Justices Clarence Thomas and Samuel Alito have expressed a desire to overturn Obergefell, noted Pizer, "this is not a good case to do that."

The Davis case and several other LGBTQ+-related cases are scheduled to be discussed in the justices' private conference Friday (November 7), but cases are often "re-listed" on the conference agenda several times before the court decides whether to hear them or not. The next scheduled Orders List is due out November 17.

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