United States: Supreme Court Permits State Department to Implement New Gender Policy on U.S. Passports While Litigation Continues
November 6, 2025
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At a glance
- The U.S. Supreme Court has stayed a district court preliminary injunction that had permitted U.S. citizens to apply for a passport that reflects their gender identity.
- The State Department is again permitted to enforce the passport policy that implements President Trump’s January 20 Executive Order, which directed U.S. federal agencies to recognize only male and female genders and to only issue documents in the gender assigned to an individual at birth.
- The State Department will be permitted to apply the Executive Order gender policy to U.S. passports while litigation challenging the policy continues.
The issue
The U.S. Supreme Court has stayed a district court preliminary injunction in litigation challenging the Trump Administration’s new gender policy as applied to U.S. passports, meaning the State Department is now permitted to resume implementation of the policy requiring U.S. citizens to be issued a passport in the male or female gender assigned to them at birth. The case is Orr v. Trump, Case No. 1:25-cv-10313 (D. Mass., filed February 7, 2025), and is being appealed in the First Circuit Court of Appeals (No. 25-01579).
The passport policy stems from President Trump’s January 20, 2025 Executive Order (EO) 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which ordered the federal government to recognize only two sexes – male and female – and to recognize only the sex assigned to an individual at birth.
The State Department implemented the EO policy as applied to U.S. passports in the early months of the Trump administration. In February 2025, the State Department issued public guidance confirming the validity of all existing passports, regardless of the sex marker listed, but requiring that any passport renewals or replacements comply with the new policy by reflecting the individual’s male or female assignment at birth. As a result of the Supreme Court decision, it is likely that the State Department will revert to the guidance that was in place prior to the preliminary injunction, though it is also possible that the agency will issue updated guidance.
Litigation background
In June 2025, a Massachusetts district court granted a preliminary injunction which prohibited the State Department from enforcing the gender EO passport policy against a certified class of affected U.S. citizens. The Trump administration appealed the injunction to the First Circuit Court of Appeals and to the U.S. Supreme Court. The First Circuit declined to stay the injunction, but the Supreme Court has granted the stay, permitting the State Department to implement the government’s passport gender policy during the pendency of the government’s appeals.
What it means
The Supreme Court decision means that unless and until there is a contrary court order, U.S. citizens who do not identify with their gender assigned at birth can no longer apply for and receive a passport that reflects their gender identity; they are again restricted to receiving a passport reflecting the male or female gender they were assigned at birth. The State Department could again reject new passport applications requesting an “X” marker or a marker that differs from the applicant’s gender assigned at birth. However, if the State Department adheres to the policy in place before the injunction was imposed, issued U.S. passports will remain valid, regardless of the gender listed, and any new passports will need to comply with the government’s gender policy. If the State Department intends to depart from any of its previously issued guidance, updated guidance is expected.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
