The Trump administration on Friday filed an emergency appeal asking the Supreme Court to halt a lower court order that allowed transgender and nonbinary people to change the sex marker on their passports despite an earlier administration policy denying such changes. It is the 26th emergency appeal the Trump administration has made to the court in the nine months since he retook the Oval Office.

A judge blocked the policy in June, finding that plaintiffs who sued against it could successfully prove the administration’s order is “based on irrational prejudice toward transgender Americans,” is “arbitrary and capricious,” and “was not adopted in compliance with the procedures required by the Paperwork Reduction Act and Administrative Procedure Act.”

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In its filing to the Supreme Court, Trump’s Solicitor General D. John Sauer wrote, “The Constitution does not prohibit the government from defining sex in terms of an individual’s biological classification,” and noted the court’s recent ruling upholding state bans on gender-affirming healthcare for trans minors. 

In a statement, Jon Davidson, senior counsel for the ACLU’s LGBTQ & HIV Project said, “The State Department’s policy is an unjustifiable and discriminatory action that restricts the essential rights of transgender, nonbinary, and intersex citizens…. including the freedom to travel safely and the freedom of everyone to be themselves without wrongful government discrimination.”

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Trans and nonbinary people with incorrect gender markers on their government-issued ID are more likely to face harassment and violence, studies have shown.

In a Bluesky post, gay legal journalist Mark Joseph Stern wrote, “I think it is extremely likely that the Supreme Court will freeze the current injunction and allow Trump’s State Department” to continue its policy, adding, “[The Supreme Court] has stayed plenty of rulings against the Trump administration that were NOT nationwide injunctions. It basically just goes straight to the merits now, with some hand-waving about equities. And it will agree with the government on the merits.”

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