The Supreme Court has issued an emergency stay – a short-term procedural move – allowing the US government to prevent trans people using the correct gender markers on passports.

It marks Trump’s latest win on the high court’s emergency docket, and it means his administration can enforce the policy while a lawsuit over it (Orr v. Trump, et al.) plays out, The Guardian reports.

The stay, secured by the top court’s conservative majority, allows the Trump administration to block trans and non-binary people from changing their gender markers to align with their correct gender identity.

In a 6 to 3 decision, with all three Democratic justices dissenting, Supreme Court justices overturned a lower-court order blocking the anti-trans policy.

US attorney general Pam Bondi hailed the decision, saying it would allow the government to list US citizens’ “biological sex.”

“In other words: there are two sexes,” she wrote on X/Twitter. “Our attorneys will continue fighting for that simple truth.”

President Donald Trump’s directive, signed among a raft of anti-LGBTQ+ and anti-immigration executive orders, was blocked by a federal district judge in April 2025, which ordered the State Department to allow self-selction of M/F/X for certain plaintiffs. That injunction was later expanded via a federal court order in June, which deemed it legally necessary for trans people to accurately represent their gender identity on official documents.

The Supreme Court’s stay now suspends that injunction while the litigation continues.

Justice Ketanji Brown Jackson, dissenting, called the Supreme Court’s decision a “pointless but painful perversion.”

“Such senseless sidestepping of the obvious equitable outcome has become an unfortunate pattern. So, too, has my own refusal to look the other way when basic principales are selectively discarded,” she said. “This Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.”

Anti-trans passport policy ‘serves one purpose: discrimination’

Prior to the directive, trans and non-binary people were able to legally change gender markers on their passport to either male, female, or the gender-neutral ‘X’ marker.

Since the state department changed its rules, several trans people have reported receiving documents with the wrong gender marker, including trans actress Hunter Schafer, who said her new passport issued in February contained a male gender marker despite requesting one that accurately reflected her identity as a woman.

Cathryn Oakly, the Human Rights Campaign’s senior director of legal policy, condemned the Supreme Court’s judgement, arguing the policy “serves one purpose: discrimination.”

She added: “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.

“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.”

Sean Ebony Coleman, CEO of the LGBTQ+ nonprofit Destination Tomorrow, similarly blasted the move as “blatantly unconstitutional” which “undermines confidence in our court system” and is “deeply demoralising” for the US trans community.

“As a Black trans man living in the United States of America, I am deeply hurt and concerned by the Supreme Court ruling,” he said. “[It is] another reminder that basic civil human rights for transgender and gender nonconfirming Americans is not a ‘mainstream issue’ for too many judges, politicians and policymakers.

Supreme Court to consider same-sex marriage case

The decision comes as Supreme Court justices begin discussions on whether to hear a case that could threaten same-sex marriage protections in the US.

The Court’s panel will convene on Friday (7 November) to consider whether to take a case brought by former Kentucky county clerk Kim Davis, who infamously refused to issue marriage licenses to same-sex couples on religious grounds.

If the Court grants a review, it will decide whether Davis has a constitutional right to deny marriage licenses based on her personal beliefs, which could have significant implications on protections brought by Obergefell v Hodges, which legally encoded a federal constitutional right to marriage in 2015.

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