United States | Supreme Court allows passport policy recognizing gender assigned at birth to proceed during ongoing litigation

In their Nov. 6, 2025, ruling on Trump v. Orr, the Supreme Court of the United States (SCOTUS) granted the federal government’s request to stay a lower court injunction blocking enforcement of the Jan. 20 executive order requiring all new U.S. passports to display an individual’s biological sex at birth.

Key Points:

• In granting the stay, SCOTUS reasoned, “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.”
• SCOTUS also found that the Government’s argument would likely succeed on the merits and the respondent’s argument would likely not 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. See 22 U. S. C. §211a.”
• The stay will remain in effect while the case proceeds on appeal and allows the Government to implement the Jan. 20 executive order.
• The State Department has not provided any additional guidance to date but did provide the following on its website: “We are taking steps to implement the U.S. Supreme Court’s ruling which granted the Department’s request to stay the U.S. District Court’s preliminary injunction in June 2025 in Orr v. Trump. We are rapidly developing guidance to comply with the Supreme Court’s decision. Please continue to check our website for updates.”

Additional Information: As background, the new passport policy, announced earlier this year by the State Department, provided guidance on the use of sex markers stipulating that the department will no longer issue U.S. passports or Consular Reports of Birth Abroad (CRBAs) with an “X” marker. The U.S. District Court for the District of Massachusetts issued a preliminary injunction against the policy in June, and the First Circuit declined to stay that order.

BAL will continue to monitor litigation related to this policy and provide updates.

This alert has been provided by the BAL U.S. Practice Group.

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