Today the Supreme Court issued an order in Trump v. Orr, the case that challenges Trump’s executive order to the effect that a person’s sex as shown on his or her passport will be the sex at birth. This order was challenged in the federal court in Massachusetts, and a Democratic Party judge issued an injunction barring implementation of the order while the case proceeds through the federal courts.
This is the Democrats’ familiar strategy: bring a case before a loyal judge who will, without hearing the case on the merits, issue a preliminary injunction preventing the Trump administration from carrying out the policy in question. The “preliminary” injunction will for all practical purposes be permanent, since by the time the case is finally resolved, Trump most likely will be out of office. Through this means, the Democratic Party has effectively tried to seize control of the Executive Branch.
But the Supreme Court is on to them, and the administration has consistently gotten these preliminary injunctions dissolved in the Supreme Court. That is what happened here. The unsigned (as is the case with such orders) majority opinion says:
This case concerns an Executive Branch policy requiring all new passports to display an individual’s biological sex at birth. The United States District Court for the District of Massachusetts preliminarily enjoined the Government from enforcing the policy, and the First Circuit declined to stay the injunction pending appeal. The Government then filed this stay application. Applying our familiar stay factors at this preliminary stage, we grant the application.
Displaying 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.
The New York Times recounts the history of sex on passports:
The State Department’s passport policies have grown more permissive since the agency issued its first directive on the subject in 1971. At the time, passports did not include a sex marker. In the late 1970s, the department began to include them on passports, a move that the government then attributed to the rise of unisex fashion and hair styles.
The State Department began allowing transgender people to obtain passports with updated sex markers in the 1990s, so long as they provided evidence of having undergone gender transition surgery. That requirement was rescinded in 2010, under then-Secretary of State Hillary Clinton, and the department began asking only that transgender passport applicants provide a doctor’s letter affirming that they had received “appropriate clinical treatment for gender transition.”
In 2021, the State Department issued the first passport with a gender-neutral marker — an “x.” The following year, the Biden administration announced a policy allowing passport applicants to select any gender marker.
There is no legislation here: all of these changes have been dictated by the President or his agent, the Secretary of State. The position of the Democratic Party is that Hillary Clinton or Joe Biden can establish a policy on passports, but Donald Trump can’t change it. Because he is Donald Trump, and doesn’t have the same powers a Democratic president would have.
Shockingly, the three Democrat Supreme Court justices found this logic persuasive, and would have continued the district court’s “temporary” injunction in place. This is the solid phalanx of Democratic Party obstruction that President Trump deals with every day, in the judiciary as in every other arena.
