For most Americans, a passport is a simple booklet, a key to international travel. But in a new, high-stakes legal battle, the American passport has become the center of a profound constitutional conflict.
The Trump administration on Friday asked the Supreme Court for an emergency order to enforce its policy requiring all passports to reflect a person’s sex as assigned at birth.
The request is more than just a flashpoint in a culture war. It is a bold assertion of presidential power that pits the government’s vast authority in foreign affairs against the fundamental rights of its citizens.
At a Glance: The Passport Policy Battle
- What’s Happening: The Trump administration has asked the Supreme Court for an emergency ruling to allow it to enforce its new passport policy.
- The Policy: Requires passport applicants to list their sex as male or female based on their birth certificate, reversing a previous policy that allowed self-selection and a gender-neutral “X” marker.
- The Legal Fight: Lower federal courts have blocked the policy, finding it likely violates the constitutional rights of transgender and nonbinary people.
- The Constitutional Issue: A major clash between the President’s Article II foreign policy powers (how the U.S. “speaks” to other nations) and an individual’s Fifth Amendment rights to Due Process and Equal Protection.
A Policy on Ice, An Appeal to the High Court
The administration’s policy, enacted by an executive order on President Trump’s first day in office, reverses a multi-decade practice at the State Department. For years, the department had allowed individuals to update the sex designation on their passport to reflect their identity. In 2022, the Biden administration formally introduced the option of a gender-neutral “X” marker.
President Trump’s new rule seeks to eliminate these options.
However, the policy has never taken effect. It was immediately challenged in court, and in June, U.S. District Judge Julia Kobick in Massachusetts issued a preliminary injunction, blocking it nationwide. She found the policy likely violated the constitutional rights of transgender and nonbinary applicants. After a federal appeals court declined to lift that injunction, the administration has now escalated the fight to the Supreme Court.
The President as the Nation’s Voice
The administration’s legal argument to the Supreme Court is a powerful and novel assertion of executive power.
Solicitor General John Sauer argues that a passport is not merely an ID card for a private citizen. He contends it is a formal act of communication from the U.S. government to foreign governments.
“Private citizens cannot force the government to use inaccurate sex designations on identification documents… especially not on… an exercise of the President’s constitutional and statutory power to communicate with foreign governments.” – Solicitor General John Sauer
Under Article II of the Constitution, the President has near-exclusive authority over how the United States “speaks” to the rest of the world. The administration’s case is that a court forcing the State Department to issue a passport with a gender marker that contradicts the President’s policy is an unconstitutional infringement on this core foreign policy power.
The Citizen’s Right to Identity
The plaintiffs and the lower courts see the issue through a different constitutional lens: the Fifth Amendment, which guarantees Due Process and Equal Protection of the laws.
Their argument is that a passport is also a fundamental declaration of an individual’s identity. They contend that forcing a transgender person to carry an official government document that misidentifies them is a form of compelled speech and a violation of their liberty and privacy rights. Furthermore, they argue it exposes them to potential harassment, discrimination, and even danger when traveling.
“The core of the counter-argument is that a passport is also a declaration of an individual’s identity. Forcing someone to carry a document they believe is false violates their fundamental rights to liberty and equal protection under the law.”
The lower court agreed that these harms to the individual outweighed the government’s stated foreign policy interest, at least for now.
Another Test for the ‘Shadow Docket’
This case is the administration’s 28th emergency petition to the Supreme Court in just the first eight months of the President’s second term – a historically unprecedented pace.
This reliance on the “shadow docket” is itself a source of major controversy. The Court is being asked to make a major ruling on a sensitive constitutional issue on an accelerated timeline, without the benefit of full public arguments or a detailed, signed opinion.
The justices’ decision on whether to grant the administration’s emergency request will not only determine the immediate fate of the passport policy. It will also be another major signal about the Court’s willingness to use its emergency powers to side with the executive branch in its most contentious legal battles.