The Supreme Court Delivers a Blow to Transgender Cases, Including the Recent Injunction on Trump Passport Changes

Yesterday, the Supreme Court issued its 7-3 ruling upholding a Tennessee ban on transgender medical treatments for adolescents. The ruling has major implications for pending transgender cases, particularly the concurrence of Justice Amy Coney Barrett rejecting the claim that transgender status qualifies as a group entitled to heightened scrutiny under the Constitution.  One of those cases just resulted in a major ruling in Boston against the move by the Trump Administration to restore the binary options of “male” and “female” sex designations on U.S. passports.

District Judge Julia Kobick’s ruling extended her earlier decision that the Trump Administration cannot limit Americans to male or female genders on passports. Judge Kobick ruled that the executive order by President Donald Trump reflects irrational animus toward transgender citizens and violates the Equal Protection Clause of the Constitution as well as federal statutory law. In reaching that conclusion, the court adopted a number of positions that go beyond existing precedent of the Supreme Court. Now, with the decision in United States v. Skrmetti, her analysis seems even more uncertain and challengeable.

United States passports historically required a designation of either “M” or “F.” However, in 1992, the government allowed people to submit evidence of surgical reassignment as proof of sex. In 2010, that option was changed to discard the required proof of surgical reassignment and instead allow a physician’s certification of appropriate clinical treatment for gender transition.

Then, in 2022, President Joe Biden changed the passport application forms to include an “X” gender marker option in addition to “M” and “F.” It also added a checkbox to indicate a change in their gender. Id. The resulting changes impacted DS-11 (new passport), DS-82 (passport renewal), and DS-5504 (data correction, name change, and limited validity passport) in allowing an option “X.” However, those forms expired on April 30, 2025.

On January 20, 2025, President Donald Trump reversed the Biden policy and issued Executive Order 14,168, declaring that “It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality.”

The EO also provides that certain definitions “shall govern all Executive interpretation of and application of Federal law and administration policy.” Id. Those definitions include:

“Sex” shall refer to an individual’s immutable biological classification as either male or female. “Sex” is not a synonym for and does not include the concept o “gender identity.” . . .

(d) “Female” means a person belonging, at conception, to the sex that produces the large reproductive cell.

(e) “Male” means a person belonging, at conception, to the sex that produces the small reproductive cell. . . .

(g) “Gender identity” reflects a fully internal and subjective sense of self, disconnected from biological reality and sex and existing on an infinite continuum, that does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex.

Notably, the EO directed the Secretary of Health and Human Services (HHS) to “provide to the U.S. Government, external partners, and the public clear guidance expanding on the sex-based definitions set forth in this order.” Id. at 8,616. HHS did so, Defining Sex, HHS (Defining Sex) (Feb. 19, 2025), https://perma.cc/9DNS-CHSZ,  and concluded:

“Sex is a person’s immutable biological classification as either male or female”

“Female is a person of the sex characterized by a reproductive system with the biological function of producing eggs (ova)”; and

“Male is a person of the sex characterized by a reproductive system with the biological function of producing sperm.”

Judge Kobick, however, agreed with the transgender plaintiffs that the return to the prior designation of only male and female options was discriminatory and arbitrary. She rejected the arguments of the Trump Administration that, if this matter is even reviewable, it should be reviewed under a rational basis test – the lowest standard of review in such cases. It noted that gender identity has never been found to be a suspect class by the Supreme Court. However, the court applied the intermediate test, requiring the government to demonstrate that its actions are substantially related to an important governmental interest.” It found that it failed this test despite the government arguing at length that the change is based on a need for uniformity and continuity in federal forms. The court found in her earlier April ruling that:

“Viewed as a whole, the language of the Executive Order is candid in its rejection of the identity of an entire group—transgender Americans—who have always existed and have long been recognized in, among other fields, law and the medical profession.”

In one of the more notable lines, Judge Kobick found that “[e]ven assuming a preliminary injunction inflicts some constitutional harm on the Executive Branch, such harm is the consequence of the State Department’s adoption of a Passport Policy that likely violates the constitutional rights of thousands of Americans.”

The court seemed to treat this as the balancing of interests between two parties.  “Constitutional harm on the Executive Branch” sounds like a violation of Article II authority. The court is suggesting that, while this may violate Article II, it has an even greater impact on these individuals. The Administration cited cases like Gore v. Lee, 107 F.4th 548, 561 (6th Cir. 2024) that have recognized that the government has a legitimate interest “in maintaining a consistent, historical, and biologically based definition of sex.” See also Corbitt v. Sec’y of the Ala. Law Enf’t Agency, 115 F.4th 1335, 1348 (11th Cir. 2024) (recognizing a “State’s interest in ensuring consistency with the State’s existing requirements for amending a birth certificate” by “‘objectively defining sex’ for purposes of driver’s license designations”).

The court also brushes aside the prior precedent giving presidents great deference in matters related to foreign relations and entry into the United States.

The Supreme Court left room for possible challenges by transgender litigants. Chief Justice John Roberts does write that “The Equal Protection Clause does not resolve these disagreements.” However, the Court found that there was no discrimination on the basis of transgender status and noted that “absent a showing that SB1’s prohibitions are pretexts designed to effect invidious discrimination against transgender individuals, the law does not classify on the basis of transgender status.”

Yet, the majority writes that “This Court has not previously held that transgender individuals are a suspect or quasisuspect class. And this case, in any event, does not raise that question because SB1 does not classify on the basis of transgender status.” That is precisely what Judge Kobick did. In her concurrence, Justice Amy Coney Barrett directly rejected the claim in a blow to transgender litigants who might have hoped that she could be a swing vote. Barrett wrote that:

The Sixth Circuit held that transgender individuals do not constitute a suspect class, and it was right to do so.3 To begin, transgender status is not marked by the same sort of “‘obvious, immutable, or distinguishing characteristics’” as race or sex.

…Nor is the transgender population a “discrete group,” as our cases require.

…The boundaries of the group, in other words, are not defined by an easily ascertainable characteristic that is fixed and consistent across the group. Finally, holding that transgender people constitute a suspect class would require courts to oversee all manner of policy choices normally committed to legislative discretion.

…The conclusion that transgender individuals do not share the “obvious, immutable, or distinguishing characteristics” of “a discrete group” is enough to demonstrate that transgender status does not define a suspect class.

…The Equal Protection Clause does not demand heightened judicial scrutiny of laws that classify based on transgender status. Rational-basis review applies, which means that courts must give legislatures flexibility to make policy in this area.

While that was a concurrence with only Justice Thomas, it likely speaks to the view of a three or four other members on the Court. It makes the Boston opinion even more precarious as it goes forward on appeal.