The U.S. Supreme Court is expected to say this week whether a lower court injunction that allows citizens to self-designate their sex on their passports shall continue in force. The injunction, issued by a federal district court judge in Boston in June and upheld by a federal appeals panel September 4, applies to citizens nationwide. Unless the Supreme Court stays the injunction, it will remain effective for the many months it will take for a pending lawsuit to resolve the constitutional issues concerning President Trump’s executive order declaring the federal government would recognize only “male” or “female” as sex designations.

Twelve people filed the lawsuit, Orr v. Trump, challenging the executive order, on behalf of themselves and other transgender and non-binary people. The lawsuit said Trump’s executive order and the subsequent new policy at the State Department is based on “unconstitutional animus toward transgender Americans” and violates their right to equal protection of the law.

The Orr case is now one of at least twelve LGBTQ-related cases seeking hearings before the Court during its 2025-26 session, which begins October 6. The Court has agreed to hear three of those cases already —two involving attempts to ban transgender females from women’s athletic competitions and one asking whether therapists can be barred from discussing conversion therapy with their patients. The Court has scheduled the latter case for argument on October 7.

In its brief Friday to the Supreme Court, the Trump administration says the challenged executive order “applies equally, regardless of sex —defining sex for everyone in terms of biology rather than self-identification.” It pointed to the Supreme Court’s June 18 decision in U.S. v. Skrmetti (Tennessee), saying states may bar people under 18 from seeking treatment for gender dysphoria. The Court ruled in that case that the treatment bans did not discriminate based on sex and, thus, require only a simple rationale for justification.

“Under the challenged policy, no one may self-select a marker of “M,” “F,” or “X” based on gender identity; every sex marker, for any individual, must reflect immutable biological characteristics instead. The challenged policy thus applies equally to each sex —defining sex for everyone in terms of biology rather than self-identification,” stated the September 19 brief. Plaintiffs “may prefer an identity-based definition of sex over a biology-based one,” said the brief, “but the government’s rejection of [plaintiffs’] preferred definition is not sex discrimination.”

After being sworn in for a second term January 20 of this year, President Trump signed Executive Order 14168, stating that “It is the policy of the United States to recognize two sexes, male and female.” It defined female as “a person belonging, at conception, to the sex that produces the large reproductive cell” [aka the ovum] and male as “a person belonging, at conception, to the sex that produces the small reproductive cell” [aka sperm].

The Trump executive order directed all federal agencies and federal employees” to “promote this reality” when “interpreting or applying statutes, regulations, or guidance and in all other official agency business, documents, and communications.” The State Department, headed by Secretary Marco Rubio, interpreted the executive order as requiring passports identify the sex as designated at birth.

The brief notes that the plaintiffs in Boston do not challenge the fact that passports include information about a person’s sex; they challenge only how the government states the answer to that question be determined.

The brief does not discuss the fact that there are several medical conditions that make a person’s body unable to produce either the large or small reproductive cell.

Beginning with the administration of President Joe Biden, a passport holder could self-designate their sex/gender as male, female, or X. The X was provided for citizens who could not or did not wish to identify as either male or female.

A three-judge federal appeals court panel in Boston, on September 4, rejected the Trump administration’s request for a stay of the distinct court injunction. The injunction allows citizens to have their passports reflect their current physical gender. Two weeks later, September 19, President Trump took the matter directly to the U.S. Supreme Court.

The current injunction is a preliminary matter; preserving existing law until the district court and the appeals court can rule on the merits of the legal challenge to the new Trump policy.

The Supreme Court has not yet responded to the Trump request to stay the injunction. It was filed with Justice Ketanji Brown Jackson, who oversees emergency orders and issues from the First Circuit.

The June 17 injunction out of the federal district court in Boston covers citizens nationwide. It requires the U.S. State Department to enable passport applicants to designate their gender, and the current State Department website explains that, as of now and due to the injunction, applicants can still designate M, F, or X.

Meanwhile, on September 9, U.S. district court Judge George Russell (an Obama appointee) in Maryland issued an opinion and a preliminary injunction, requiring the State Department to allow passport applicants to self-designate their sex/gender as M, F, or X. But the injunction there extended only to six of the seven plaintiffs who brought the lawsuit. The district court opinion said Trump’s executive order discriminates based on sex and violates the constitutional guarantee of equal protection of the law. (The judge dismissed the seventh plaintiff’s claim because of complications around the timing of his application for a diplomatic passport. The plaintiff, identified as Robert Roe, is a U.S. Foreign Service Officer.) The Trump administration is expected to appeal this case, Schlacter v. U.S., to the Fourth Circuit.

The U.S. first began seeking information on passport applications about applicants’ sex in 1977. The development came about as changes in fashion and haircuts began to blur the visual distinction between male and female, making it more difficult for some customs officials to verify the identity of some citizens returning to the U.S.

The U.S., Canada, and seven other nations currently allow passport applicants to put an “X” in the document’s gender box, indicating that the passport holder does not consider themselves to be either a male (M) or a female (F).

In the U.S. District Court for the District of Massachusetts, the Trump administration had argued that the passport policy was carrying out President Trump’s executive order and was not subject to judicial review. But U.S. district court Judge Julia Kobick (a Biden appointee) and the First Circuit appeals panel said the policy is subject to review under the Administrative Procedures Act. As its title suggests, the Act regulates the procedures the federal government uses to administer the laws that Congress passes. Section 10 of the 80-year-old Act states that “any person suffering legal wrong because of any agency action…shall be entitled to judicial review thereof.”

The appeals panel said “we cannot conclude on the present submissions that the government has made a strong showing that the Passport Policy is unreviewable” under the APA.

All three federal appeals judges in the Orr v. Trump preliminary injunction —Lara Montecalvo, Julie Rikelman, and Seth Aframe— are appointees of President Joe Biden.