Attestation, Not Discrimination: Sex-at-Birth Markers on Passports and Irreparable-Harm Presumptions in Trump v. Orr

Introduction

In Trump v. Orr, No. 25A319 (U.S. Nov. 6, 2025), the Supreme Court granted the Government’s emergency application to stay a district court’s preliminary injunction that had blocked immediate implementation of a new State Department policy requiring all new U.S. passports to display a passport holder’s sex as assigned at birth. The majority’s brief order frames the policy as a neutral “attestation to a historical fact,” rejects an animus-based equal protection challenge on the current record, and concludes the Government is likely to succeed on the merits. It also holds that the injunction imposes irreparable harm on the Executive because it enjoins a policy with foreign affairs implications concerning a government document. Justice Jackson, joined by Justices Sotomayor and Kagan, dissents, critiquing the Court’s stay practice and emphasizing equitable principles, the lack of any Government showing of irreparable harm, and the significant harms to transgender applicants forced to use gender-incongruent identification documents pending litigation.

The dispute arises against a 33-year backdrop in which the State Department permitted transgender Americans to obtain passports with sex markers aligned to their gender identity (with evolving evidentiary standards from 1992 through 2021). In January 2025, following Executive Order No. 14168 declaring a federal policy of recognizing only two sexes “at conception” and directing agencies to reflect “biological” sex on identification documents, the State Department rescinded prior practices prospectively. Several transgender plaintiffs challenged the change on equal protection and Administrative Procedure Act (APA) grounds; the District of Massachusetts enjoined the policy; the First Circuit declined a stay; the Government then obtained a stay from the Supreme Court.

Summary of the Opinion

The Court’s unsigned order grants a stay pending appellate review, emphasizing:

Likelihood of success on the merits: The Court states that displaying sex at birth on passports “no more offends equal protection principles than displaying [a passport holder’s] country of birth,” because the Government is “merely attesting to a historical fact without subjecting anyone to differential treatment.”
No animus on this record: Respondents have not shown that the choice to display sex at birth “lack[s] any purpose other than a bare … desire to harm a politically unpopular group,” quoting Trump v. Hawaii, 585 U.S. 667, 705 (2018).
APA claim unlikely to succeed: The State Department did not act arbitrarily and capriciously when it “declin[ed] to depart from Presidential rules that Congress expressly required it to follow,” citing 22 U.S.C. §211a (authorizing passport issuance “under such rules as the President shall designate and prescribe”).
Irreparable harm and equities: Because the district court issued class-wide relief enjoining an Executive policy with foreign affairs implications concerning a government document, “the Government will ‘suffer[] a form of irreparable injury’ absent a stay,” citing Trump v. CASA, Inc., 606 U.S. 831, 861 (2025).
Scope and duration: The district court’s June 17, 2025 order is stayed pending First Circuit proceedings and, if certiorari is sought, pending disposition of certiorari; if certiorari is denied, the stay dissolves automatically; if granted, it dissolves when the Supreme Court issues judgment.

Justice Jackson’s dissent argues that the Government failed to satisfy the equitable prerequisites for a stay—particularly irreparable harm and balance of harms—and critiques the majority for elevating the Government’s policy preferences over concrete, documented harms to plaintiffs. She also flags substantial merits issues: potential APA arbitrariness in reversing 33 years of practice without reasoned explanation, and equal protection concerns given the executive order’s rhetoric about transgender identity.

Analysis

Precedents and Authorities Cited and Their Influence

Nken v. Holder, 556 U.S. 418 (2009): Establishes the familiar stay factors—likelihood of success, irreparable injury, harm to other parties, and the public interest. The dissent leans heavily on Nken, stressing that a stay is “an intrusion into the ordinary processes of administration and judicial review,” requiring a rigorous showing, especially on irreparable harm and equitable balance.
Trump v. Hawaii, 585 U.S. 667 (2018): The majority imports Hawaii’s rational-basis-with-animus framework, concluding the record does not show a “bare … desire to harm” transgender people. This positions the passport sex-marker decision within the deferential rational basis paradigm, rather than heightened scrutiny for sex or gender identity discrimination, at least at the stay stage.
Trump v. CASA, Inc., 606 U.S. 831 (2025): Cited to support that the Government “suffers a form of irreparable injury” when enjoined from implementing its policy, especially where foreign affairs are implicated. The citation underscores the Court’s recent tendency to presume or readily find irreparable harm to the sovereign when nationwide or class-wide injunctions disrupt executive policy.
22 U.S.C. §211a: Authorizes passport issuance “under such rules as the President shall designate and prescribe.” The majority uses this statutory hook to conclude that State did not act arbitrarily in adhering to presidential directives. Justice Jackson counters that agencies cannot evade APA obligations merely by invoking presidential instruction; even where the President sets policy, the implementing agency must provide reasoned explanation and consider relevant factors and reliance interests.
Winter v. NRDC, 555 U.S. 7 (2008); Amoco Production Co. v. Gambell, 480 U.S. 531 (1987); Hecht Co. v. Bowles, 321 U.S. 321 (1944); Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982); Di Giovanni v. Camden Fire Ins. Ass’n, 296 U.S. 64 (1935): The dissent collects these canonical equity cases to emphasize tailoring, balancing harms, and the fundamentally discretionary and fairness-oriented nature of interim relief.
Lackey v. Stinnie, 604 U.S. 192 (2025): Quoted by the dissent for the proposition that preliminary injunctions preserve the status quo and balance the equities pending final decision. Jackson analogizes stays to preliminary injunctions in their equitable character, stressing that the Court should not make merits determinations that short-circuit full lower-court review.
Department of Homeland Security v. Regents of the Univ. of California, 591 U.S. 1 (2020): Cited by the dissent to argue that agencies must offer reasoned explanations, especially when reversing longstanding policies and when reliance interests are at stake, even if policy changes are directed by the President.
Paperwork Reduction Act, 44 U.S.C. §3506(c)(2)(A): The dissent notes plaintiffs’ argument that the State Department altered information-collection forms without required notice and comment under the PRA. The majority does not address this in its short order, but the dissent includes it in the suite of likely-merits arguments.
Maryland v. King, 567 U.S. 1301 (2012) (Roberts, C.J., in chambers) and related “in chambers” stay practice: The dissent references the line of cases recognizing sovereign interests in enforcing duly enacted statutes but argues that executive orders do not necessarily carry the same presumption for irreparable harm.
A series of recent emergency-docket stays (e.g., Noem v. Doe, Department of Ed. v. California, McMahon v. New York): Justice Jackson uses these to depict a broader trend—what she views as the Court’s increasing readiness to intervene on the emergency docket and to “pick winners and losers” before full merits consideration.

Legal Reasoning

1) The majority’s core moves

Equal Protection framing: attestation rather than classification. The order’s most consequential doctrinal move is to characterize a sex-at-birth passport marker as an objective, neutral, historical datum—akin to country of birth—that does not, by itself, “subject[] anyone to differential treatment.” This formulation sidesteps the question whether choosing which attributes to encode on identity documents can itself be discriminatory where one group (transgender people) bears disproportionate burdens from that choice.
Animus not shown on the current record. Borrowing Trump v. Hawaii’s articulation of irrational-animus review, the Court finds the policy may serve legitimate interests (accuracy, uniformity across federal programs, foreign affairs considerations) and that respondents have not shown an impermissible purpose “to harm a politically unpopular group.”
APA deference when Congress ties agency to presidential rules. The order signals a constrained scope for arbitrary-and-capricious review when an agency implements presidentially prescribed rules under §211a. The reasoning suggests that, where Congress authorizes the President to set rules, the agency’s refusal to deviate from those rules cannot easily be deemed arbitrary—implicitly lowering the explanatory burden on the implementing agency.
Irreparable harm to the sovereign in foreign-affairs-adjacent contexts. The Court deems the class-wide injunction an intrusion into Executive authority over a document with “foreign affairs implications,” and thus an irreparable injury absent a stay. This reasoning strengthens a presumption of irreparable harm when injunctions inhibit executive action in areas touching foreign relations, identity documents, or national uniformity.

2) The dissent’s counter-analysis

Equitable first principles. Justice Jackson emphasizes that stays are extraordinary and turn on fairness and concrete harms. On this record, the Government did not identify any immediate injury from preserving the status quo while litigation proceeds—especially because existing gender-congruent passports remain valid until expiration under the new policy, undermining claims of urgent foreign-affairs necessity.
Balance of harms. The dissent details real-world, immediate harms to plaintiffs forced to travel with gender-incongruent IDs: elevated risks of harassment, invasive searches, accusations of fraud, and psychological distress. She underscores data that barriers to gender-congruent identification correlate with increased suicidal ideation among transgender people.
APA merits. The dissent argues the State Department offered “zero explanation” for abruptly reversing three decades of practice, triggering Regents-style requirements to consider reliance and relevant factors. Presidential direction, she contends, does not absolve an agency of APA obligations.
Procedural regularity (PRA). By changing the content of a government identification form, the State Department may have triggered PRA notice obligations, which the dissent notes were allegedly not observed.
Concern about the emergency docket. The dissent situates this stay within a pattern of the Court intervening early and often, potentially “thwart[ing] the full legal process” by pre-judging merits and reweighing equities that lower courts have already addressed.

Impact

A. Equal Protection and transgender rights litigation

The majority’s “attestation of historical fact” framing narrows the equal protection lens for identity-document policies. By analogizing sex at birth to country of birth, the order suggests that the Government’s choice of which data fields to include on state-issued identification may be treated as neutral unless plaintiffs can show differential treatment or purposive discrimination. This approach may influence:

Challenges to other federal or state identification policies (passports, Social Security, driver’s licenses) that encode sex at birth or limit changes to sex markers.
Policy areas where “uniform definitions of sex” are asserted (education, health, sports) to the extent litigants argue the data fields are neutral “attestations,” rather than classifications requiring heightened scrutiny or demonstrating disparate treatment.

B. Administrative law: the “presidentially compelled” problem

The Court’s reliance on §211a to deflect APA arbitrariness charges hints at a contested doctrinal development: whether and when an agency can satisfy its reasoned-explanation duty by invoking presidential direction where Congress authorized presidential rulemaking. If adopted more broadly, this position could:

Reduce judicial scrutiny of agency reversals that closely track executive orders, especially in domains where statutes channel policy-setting to the President.
Narrow the force of Regents in contexts where an agency asserts it is implementing the President’s rules rather than exercising independent policy discretion.

C. Stays, irreparable harm, and the “shadow docket”

The order intensifies a trend toward recognizing sovereign irreparable harm when nationwide or class-wide injunctions impede executive policies with foreign affairs or national uniformity features. Practically, this may:

Make emergency stays more likely in federal-policy cases, even when lower courts have already weighed equities against the Government.
Signal skepticism of broad injunctive relief (including class-wide or universal injunctions) that halt executive policies across the board.

D. Foreign affairs deference and government documents

By characterizing passports as instruments with foreign affairs implications and by emphasizing international presentation of identity data, the order provides a rationale for heightened deference to executive choices about passport content. Expect future cases to invoke this logic in disputes over the informational architecture of passports and potentially other travel documents.

E. Practical effects on individuals

The stay reinstates the new policy pending appeal, meaning transgender applicants seeking new or renewed passports will receive sex-at-birth markers. While existing gender-congruent passports remain valid through their expiration, many individuals needing first-time or replacement passports will face the harms described by the district court and dissent—heightened scrutiny, potential misgendering at checkpoints, and barriers in transactions where passports serve as primary ID.

Complex Concepts Simplified

Stay pending appeal: A temporary order that pauses (stays) a lower court’s injunction while an appeal proceeds. To get a stay, the applicant must show, among other things, a high likelihood of success and that they will suffer harm that cannot be undone if the stay is not granted.
Preliminary injunction: A temporary court order that prevents a party from acting (or compels action) to preserve the status quo until the court can decide the case on the merits.
Irreparable harm: Harm that cannot be remedied by money or later court orders—for instance, an injury to constitutional rights or exposure to unique harms that cannot be undone.
Equal Protection (animus-based review): Even under the lenient “rational basis” standard, the government cannot act solely out of a bare desire to harm a disfavored group. Courts look for legitimate objectives and reasonable fit; proof of improper purpose can invalidate a policy.
APA “arbitrary and capricious” review: Courts require agencies to explain their decisions, consider important factors, and account for reliance interests when changing policy. A sudden reversal without reasoned explanation can be unlawful.
22 U.S.C. §211a: A statute giving the President authority to set rules for passport issuance. Agencies implementing rules under such a grant may argue their discretion is constrained by the President’s directives.
Paperwork Reduction Act: Requires agencies to provide notice and seek public comment for changes that affect government information collections (like forms), to reduce unnecessary paperwork burdens and enhance public participation.
“Shadow docket”: A colloquial (and controversial) term for the Supreme Court’s emergency orders and summary decisions outside its regular merits docket, often issued without full briefing and argument.
Sex assigned at birth vs. gender identity: “Sex assigned at birth” refers to the classification (male/female) recorded at birth, typically based on anatomical observations. “Gender identity” is an individual’s internal sense of their gender, which may or may not align with sex assigned at birth.

Conclusion

Trump v. Orr is formally an emergency stay ruling, not a definitive merits decision. Yet it meaningfully reframes the legal landscape in two ways. First, it casts the inclusion of sex-at-birth markers on passports as a neutral “attestation” that, on the current record, does not trigger equal protection concerns—signaling skepticism toward arguments that identity-document field selection itself is discriminatory. Second, it strengthens the Government’s hand on the stay standard by treating broad injunctions that impede executive action in foreign-affairs-adjacent contexts as inflicting “a form of irreparable injury.”

Justice Jackson’s dissent, by contrast, centers equity and immediate human consequences. She faults the Government for failing to show any urgent harm from preserving the status quo pending review, highlights the significant and documented harms to transgender people forced to use gender-incongruent IDs, and underscores that agencies remain bound by APA obligations even when following presidential directives. Her analysis preserves a robust view of judicial responsibility to balance harms fairly and to avoid prejudging merits on the emergency docket.

The decision will influence future litigation over identity documents, executive-branch deference in foreign-affairs contexts, and the contours of arbitrary-and-capricious review when agencies implement presidentially dictated policies pursuant to statutory delegations like §211a. It also reinforces a broader institutional trend: the Court’s willingness to grant stays that reconfigure the status quo based on preliminary assessments of likely success and sovereign injury. As the case proceeds through the First Circuit and potentially returns on certiorari, the merits will test the durability of the majority’s “attestation” framing and the extent to which APA principles constrain abrupt policy reversals rooted in presidential directives.