The U.S. Supreme Court ruled on Thursday that the Trump administration can prohibit the State Department from issuing passports that list the correct genders of transgender and nonbinary people. The case, decided on the court’s emergency docket, will allow Trump’s discriminatory policy to proceed while legal challenges against the policy proceed in lower courts.

Lower courts had blocked the Trump directive for being rooted in “irrational bias,” but the Supreme Court’s unsigned ruling concluded that “Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth,” adding, “In both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment.”

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Of course, the conservative-leaning court’s decision is disingenuous since a person’s gender isn’t merely a “historical fact” but can change over a person’s lifetime. Nevertheless, State Department Solicitor General D. John Sauer said that the lower court block on Trump’s policy infringed on Trump’s constitutional authority over foreign affairs. 

A dissent written by the court’s three liberal justices said the policy would lead to “increased violence, harassment, and discrimination” toward trans and nonbinary communities.

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Trump’s anti-trans Executive Order 14168, signed on his first day in office declared that the U.S. would only recognize two sexes, male and female, as determined by biology. The order directed federal agencies to only issue government documents, including passports, that reflect a person’s sex assigned at birth.

Consequently, the U.S. State Department suspended its previous policy allowing trans and nonbinary Americans to update the gender listed on their passports to reflect their gender identity — including an “X” marker for nonbinary people.

The American Civil Liberties Union (ACLU) sued on behalf of seven trans and nonbinary individuals who said that the policy violates their First Amendment rights to freedom of expression. Their case will proceed while the discriminatory policy continues.

“This decision undermines the freedom of transgender, nonbinary, and intersex people to have our IDS to reflect who we are,” the ACLU wrote on Bluesky of the Court’s decision, adding, “This fight isn’t over. Our case challenging President Trump’s executive order will still move forward.”

In a statement Cathryn Oakley, the Human Rights Campaign’s senior director of legal policy, criticized the ruling.

“The Trump administration’s policy serves one purpose: discrimination. It exists to out our transgender friends and loved ones, to make their lives more difficult, to demean and embarrass them at the border, in the airport, and throughout their daily lives,” Oakley said. “The State Department had a process in place for decades that allowed trans and, more recently, non-binary people to have documents to present that identified them appropriately. These policies worked. There is no reason to change it other than malice.”

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