The Trump administration is asking the Supreme Court to reinstate a policy preventing Americans from being able to choose the gender identity they want displayed on their passports. 

The solicitor general, John Sauer, defended the policy in an emergency appeal to the Supreme Court on Friday, arguing that the policy is “eminently lawful.”

“The Constitution does not prohibit the government from defining sex in terms of an individual’s biological classification,” Mr. Sauer said.

In June, a federal judge in Massachusetts, Julie Kobick, blocked the Department of State from requiring Americans to choose the gender that matches the biological sex they were assigned at birth. The policy also eliminated the option for Americans to choose “X” instead of male or female for their gender.

On his first day in office, President Trump took aim at “gender ideology” with an executive order that stated there are only two sexes and that they are “not changeable and are grounded in fundamental and incontrovertible reality.”

Days later, the state department issued its passport policy. Judge Kobick ruled that the policy “is candid in its rejection of the identity of an entire group — transgender Americans.” 

In the government’s appeal on Friday, the solicitor general said the Supreme Court’s United States v. Skrmetti decision, which upheld Tennessee’s ban on gender affirming care for minors, “reaffirmed … a policy does not discriminate based on sex if it applies equally to each sex without treating any member of one sex worse than a similarly situated member of the other.”

“And here, the challenged policy applies equally, regardless of sex – defining sex for everyone in terms of biology rather than self-identification,” Mr. Sauer said.

“Indeed, just as it would not be discrimination based on national origin to define a person’s national origin as the person’s birth country rather than the country with which the person self-identifies, so too it is not discrimination based on sex to define a person’s sex as the person’s immutable biological classification rather than the sex with which the person self-identifies.”

The Biden administration allowed Americans to choose the gender they identify with and choose “X” as a gender beginning in 2022. 

Judge Kobick said in June that the Trump administration’s policy threatens “irreparable harm” to members of the LGBTQ community due to “inability to use their passports anywhere without outing themselves.”

She also said that under the Trump administration’s policy, members of the LGBTQ community might face “anxiety, psychological distress, discrimination, harassment, or violence any time they use their passports, not simply because they face these risks when using their passports for international travel.”

However, Mr. Sauer wrote to the justices, “Private citizens cannot force the government to use inaccurate sex designations on identification documents that fail to reflect the person’s biological sex — especially not on identification documents that are government property and an exercise of the President’s constitutional and statutory power to communicate with foreign governments.”

A senior counsel for the ACLU’s LGBTQ & HIV Project, Jon Davidson, said in a statement that the Trump administration’s policy is “an unjustifiable and discriminatory action that restricts the essential rights of transgender, nonbinary, and intersex citizens.”

“This administration has taken escalating steps to limit transgender people’s health care, speech, and other rights under the Constitution, and we are committed to defending those rights including the freedom to travel safely and the freedom of everyone to be themselves without wrongful government discrimination,” Mr. Davidson said. 

Some states have implemented similar policies. In 2024, Florida banned residents from changing the gender on their driver’s licenses. Texas enacted a similar policy that year.