NEWS / US Supreme Court allows State Department to limit passport sex to birth certificate gender marker

The United States Supreme Court has ruled in favor of allowing the State Department to issue passports with a sex marker that only matches the same marker on that individual’s birth certificate.

Moreover, in accordance with the 6-3 ruling, the US State Department will now have the right to stop issuing passports with an “X” gender marker, originally implemented in 2022 under the presidency of Joe Biden.

The Supreme Court issued an unsigned order comparing the gender marker to the “country of birth” marker and arguing that in both cases, the “government is merely attesting to a historical fact without subjecting anyone to differential treatment.”

According to Politico, liberal Justice Ketanji Brown Jackson dissented, noting that the government failed to show how a delay in the implementation of the policy would cause harm, while transgender Americans “produced evidence it could cause them real harm while traveling.”

The Supreme Court ruling is not final but rather puts a hold on an injunction from a federal district judge in Massachusetts which argued that the US State Department’s policy change under Donald Trump and Marco Rubio was “arbitrary and capricious” and appeared to be motivated by “animus toward transgender people.”

The policy change came about as a result of an Executive Order signed by President Donald Trump on his first day in office in January 2025 decrying “gender ideology extremism.” In particular, the order directed the State Department to make sure passports “accurately reflect the holder’s sex.”

The American Civil Rights Union sued Donald Trump in February, arguing that the policy change violated the constitutional equal protection rights of transgender people and some other federal laws. This was followed by a preliminary injunction issued by US District Judge Julia Kobick in Massachusetts in April preventing the State Department from enforcing the new policy against 6 plaintiffs. In June, Kobick expanded her order banning the US State Department entirely from implementing the policy change.

The US Department of State began allowing individuals to change the gender marker in their passports under the presidency of George H. W. Bush in 1992, providing the individuals in question could produce evidence of gender reassignment surgery. In 2021, under President Joe Biden and Secretary of State Antony Blinken, the US State Department allowed individuals to select their gender on passport applications without any medical proof and also added the option of “X” as an option for gender in addition to “male” and “female”.

If you need to retrieve a certified copy of your birth certificate or to get US-issued vital records apostilled or authenticated for use abroad, please do not hesitate to contact us by e-mail at info@apostille.us or by phone at (212) 233-7061. You can also place an order on our website.