Isaac Saul (18:44)
This is Associate Editor Lindsay Knuth, and this is my take. Since President Trump issued the executive order at the center of this case on Inauguration Day, I've been keeping an eye out for the supreme court to weigh in on a legal challenge. Sure enough, in a four paragraph decision last week, the court's majority summarily discarded a 56 page ruling from a federal court barring the implementation of this passport policy, a second federal court order, and three decades of existing practice. I won't feign surprise at the direction of the outcome, but I was frankly appalled by the majority's curt treatment of the case. The court framed its emergency ruling as a cut and dry win for the government without any regard to the harms the policy would impose on an extremely vulnerable group of citizens. Notably, this case came to the court through its increasingly utilized shadow docket after a class action lawsuit brought by a group of transgender citizens garnered an injunction from a US District judge in Massachusetts. Since it was considering granting an injunction for a policy that might be unlawful, the court needed to be extra cautious and apply a rigorous set of first, the likelihood of success on the merits, second, the likelihood of irreparable harm absent an injunction third, the balancing of harms to each party and fourth, the public interest. When the government appealed the stay to the Supreme Court, the justices had to apply that same balance of equities test again to reverse the judge's order, they had to determine that the government faced irreparable and more harm in not being able to immediately implement this policy than the people who claimed their constitutional rights were affected by the new required sex at birth designation. In other words, the court had a very high bar to clear, and honestly, I don't think it came close. What immediate harm to the government could the temporary prevention of this policy cause if people who have already changed the sex on their passports are entitled to keep them until their expirations, which is as long as a decade away. The majority's explanation was brief, asserting that the government will experience, quote, a form of irreparable injury due to foreign affairs implications. The court determined these implications were severe enough to supersede US Citizens Equal Protection Clause concerns, so I want to give as much credence to that explanation as possible. However, it's difficult to do so when the majority and the commentary supporting it has offered no evidence that a mismatch between a person's assigned sex at birth an identifier on their passport could pose a security threat. On the other hand, the harm in removing the ability to change one's listed sex is much more immediate. And I think District Court Judge Julia Kobick was right to block Trump's policy as a violation of the Equal Protection Clause. US Citizens are guaranteed the right to equal protection under laws. And this policy, as Judge Kobik notes, violates that guarantee by expressing a, quote, irrational prejudice toward transgender and non binary Americans. These small groups make up around 1% of the US population, and they're directly targeted under a policy that deems their identities inchoate and corrosive. Also, by requiring those groups to travel with documents that don't list their preferred sex, Kobik found the policy directly implicates their right to freedom of travel. Some plaintiffs in the case were accused of presenting fake identification, while others say they were sexually assaulted. Unlike age or height or national origin, if a person's listed gender or sex on their government documents doesn't match their gender identity, studies have shown they're at greater risk for psychological distress. That distress is understandable when you hear the stories a policy like this produces. First person reports and surveys have reported harassment, assault, or denial of services when a person's identification did not match their gender expression. I'm not transgender or non binary, but I've found that a little empathy and compassion can go a long way when trying to imagine what it might be like to have a government document that discords with the gender you present to the world. Legal scholar Vikram David Amar sees the majority's argument as centering on government speech. Here, the information on a passport against which private individuals, in this case transgender and non binary people, are compelling their own messages. But just like individual speech, government expression has limits. Imagine, Amar says, if government forms and passports capture race in a binary white, non white way, lumping all non whites together and characterizing them as different from whites. In Loving v. Virginia, 1967, the court unanimously found that this exact collapse was a central violation of the Equal Protection Clause even if it was equally applied while or doesn't cover a racial classification or trigger strict scrutiny. I think Loving's framework offers context for why the new passport requirements, even if, quote, equally applied, factual government classifications, can cause harm to the more vulnerable group. Before going on to find the policy violated the Equal Protection Clause twice, Judge Kobik noted that the Supreme Court has invalidated on rational basis review government actions that burdened, quote, historically disadvantaged or unpopular groups when the government justification for its actions seemed thin, unsupported, or impermissible apart from harm to individuals. It seems like requiring sex assigned at birth versus presented or identified sex is simply a bad policy for a document whose utility rests on aiding airport workers and Border Patrol agents in actually identifying people. As the New York Times M. Gessen rightly points out, if a person identifies as a woman and appears to be a woman to the agents and has her sex under the policy. The passport wouldn't even say sex at birth listed as M. Wouldn't that foment confusion and inefficiency? After all, your biological sex distinguishes you from roughly half the population, while markers like height, weight, eye color, and date of birth are more identifiable. A counterargument could be that these markers are also subject to change, but these characteristics have a key difference. No class of citizens are vulnerable to the types of harms described above from, say, a mismatch between their natural and current hair color. It is true that the restrictions on sex self identification on government documents have meaningfully loosened in the past few decades. In 2010, President Obama revoked the Bush era requirement for medical proof of reassignment surgery and President Biden added the X classification for sex in 2021. I think the fluidity of these rules is actually indicative of just how unhelpful sex is as an identifier in the first place. Dividing Americans into male or female hardly narrows down the person a TSA agent might be looking at. And an admittedly radical sounding proposition here is that we don't need sex on passports at all, especially not in an era of biometric identifiers or when someone's ID has their hair color, eye color, height, national origin, and other far more specific and helpful demarcations. Of course, I don't expect this administration to abandon sex identifiers on passports, and I understand why some people are reticent to make selecting one sex on their government ID as easy as checking a box. Yet the harms in adding friction to the process vastly outweigh the risks in making it seamless, both as a policy solution and in a legal sense. I'm left thinking that the court's decision is not about foreign affairs implications at all, but about what President Trump said in the text of his executive order the gender ideology that transgender and non binary people express, posing a quote, corrosive and socially coercive threat to the entire American system. That is the framework that underlies the government's argument. And when the court fails to expound on the litmus test they've set for themselves and their decisions, I'm not convinced they aren't simply tipping the balance of harms to favor the executive branch. For now, the class action suit remains alive in Massachusetts, where the lower courts seem poised to side with the plaintiffs and find the policy unlawful. If they do, the government will likely appeal the case again to the Supreme Court, who could accept or decline to hear the appeal. But with the decision it has just handed down, the court's majority has pretty clearly signaled it has made up its mind already. At this point, the prospect of them striking down Trump's policy on the merits seems dim. Now I'm going to pass it off to a dissent by my fellow associate editor, Audrey Moorhead. This is Associate Editor Audrey Moorhead with a staff dissent. While I think Lindsay is addressing the real thorniness of this issue, I disagree with her assessment that the Supreme Court's order does not meet the standard of harm to the government necessary to stay the injunction. In recent cases like casa, the court has held that impeding the enforcement of the law constitutes irreparable harm to the government. The court's opinion in this case shows that it thinks this executive order will be found lawful, meaning that impeding its enforcement is an irreparable harm. I further disagree with Lindsay that requiring a person's sex identification on their passport to match their biological sex causes harm worthy of special treatment under the law. While I sympathize with transgender individuals whose identities are discordant with their biological sex, that distinction still provides vital legal protections for natal women. I think a compromise position in which biological, sex and gender identity are listed on passports is the best policy to protect both sex based and identity based interests. Though, like Lindsey, I don't imagine the current administration is interested in such a compromise.
