The U.S. Supreme Court momentarily paused a lower court injunction on Thursday that sought to force the Trump administration to deny biological reality when issuing passports to trans-identifying individuals.
In its order in Trump v. Orr, the high court granted the federal government’s request to temporarily stay a sweeping preliminary injunction issued by Biden-appointed District Judge Julia Kobick in mid-June. That order attempted to block enforcement of part of a January executive order by Trump that directed the secretaries of State and Department of Homeland Security and director of the Office of Personnel Management to “implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex.”
Associate Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson would have denied the administration’s request for relief.
According to CBS News, Kobick ruled that “any individual who needs to renew their passport because it expires within one year, apply for a new passport, or change their name or sex designation” may select the sex they “identify” as. This June ruling “expanded an earlier decision in April that only applied to six of the original plaintiffs.” A three-judge panel for the First Circuit Court of Appeals rejected the Trump administration’s request to stay Kobick’s injunction in early September.
In its temporary ruling, the Supreme Court noted that “[d]isplaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment.”
“And on this record, respondents have failed to establish that the Government’s choice to display biological sex ‘lack[s] any purpose other than a bare . . . desire to harm a politically unpopular group,’” the order reads. “Nor are respondents likely to prevail in arguing that the State Department acted arbitrarily and capriciously by declining to depart from Presidential rules that Congress expressly required it to follow.”
“For these reasons, the Government is likely to succeed on the merits,” the court added, noting that the government would also “suffer[] a form of irreparable injury” if the injunction were allowed to remain in place throughout litigation.
Writing for the dissent, Jackson accused the majority of “ignor[ing] the[] critical limits on its equitable discretion.” She further claimed that the Trump administration “seeks to enforce a questionably legal new policy immediately, but it offers no evidence that it will suffer any harm if it is temporarily enjoined from doing so, while the plaintiffs will be subject to imminent, concrete injury if the policy goes into effect.”
“The Court nonetheless fails to spill any ink considering the plaintiffs, opting instead to intervene in the Government’s favor without equitable justification, and in a manner that permits harm to be inflicted on the most vulnerable party,” Jackson wrote. “Such senseless sidestepping of the obvious equitable outcome has become an unfortunate pattern. So, too, has my own refusal to look the other way when basic principles are selectively discarded.”
“Because I cannot acquiesce to this pointless but painful perversion of our equitable discretion, I respectfully dissent,” she added.
According to Thursday’s order, Kobick’s order is “stayed pending the disposition of the appeal in the United States Court of Appeals for the First Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.” The Supreme Court’s stay will terminate if a potential petition from the administration to SCOTUS is denied by the high court or if SCOTUS agrees to consider the matter and issue a verdict in the case.
Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood
