Trump v. Orr Re: October 7, 2025
On the first day of his second term, President Trump issued Executive Order 14168, ordering every federal agency to strip self-attested gender identity from official records and to align markers with birth-assigned sex. Within 48 hours, the State Department froze adjudication of passport applications from transgender, intersex, and nonbinary Americans; some passports were returned with sex markers reset, displacing the prior self-designation regime (including the “X” option).
In February, the American Civil Liberties Union of Massachusetts filed suit on behalf of seven transgender and nonbinary Americans, seeking declaratory and injunctive relief under the Equal Protection, Due Process, and Administrative Procedure Act. District Judge Julia Kobick agreed in part and issued a preliminary injunction that restored the previous self-designation system for the plaintiffs and, later, certified classes of similarly situated individuals. She concluded that the policy “likely violates the constitutional rights of thousands of Americans.”
The First Circuit Court of Appeals declined the Trump Administration’s request to stay that injunction. On September 19, 2025, the Administration filed an emergency application with the Supreme Court to vacate the order. The case moves forward on the Court’s emergency docket.
Defending the rule, the Administration invokes the Passport Act’s broad delegation to the Executive to issue passports “under such rules as the President shall designate and prescribe” (22 U.S.C. 211a) and invokes Haig v. Agee (1981) to characterize passports as “political document[s]... addressed to foreign powers.” As such, just like other tools of foreign policy, the President has broad discretion over their content, including sex designations. It also cites United States v. Skrmetti (2025) to argue the policy is not sex discrimination because it “applies equally to each sex,” while amici from 26 states urge deference to executive definitions and judgment in the interest of uniformity.
The plaintiffs argue the injunction should remain in place because the policy is unlawful on multiple independent grounds. On justiciability, they cite Zivotofsky v. Clinton (2012) and Kent v. Dulles (1958), which emphasize that courts have regularly adjudicated passport disputes, and invoking “foreign affairs” is not an escape from statutory constraints. On Equal Protection, the plaintiffs argue that the policy facially classifies by sex and gender identity and fails rational-basis review, given the thin evidentiary record. They further contend that the record shows impermissible animus against transgender people, and that the rollback was arbitrary and capricious because the Department abruptly reversed settled policy without providing evidence or a reasoned explanation.
To a casual observer, a fight over a letter printed on a travel document may appear trivial and bureaucratic. Trans and nonbinary identities have existed long before any government checkbox, and gender identity is lived and personal; its validity does not hinge on a stamp. Yet in practice, documents govern safety. Reid Solomon-Lane, a transgender man from western Massachusetts and a plaintiff in this case, explains that the executive order would “forcibly… out [him]” during travel, risking his and his family’s safety. As the 2022 U.S. Transgender Survey reports, 22% of respondents who presented an ID that did not match their gender presentation experienced harassment, denial of services, ejection, or assault.
A merits signal in favor of the Administration would not end at the passport counter. A birth-sex baseline would migrate through TSA and DHS screening databases, Social Security, and then into private rails that mirror federal fields, from E-Verify to airline risk tools. For self-designated marker changes, database mismatches would appear at identity checkpoints and result in added screenings, travel delays, and failed employment verification. States would be pressed to align or litigate, and abroad, the promise of uniformity would read as extra scrutiny because consular and border protocols track cross-document consistency.
Furthermore, the emergency docket was designed for genuine exigencies, not for the refashioning of national policy through an unsigned paragraph. A stay turns on two inquiries: prospect of success and irreparable harm, and both weigh against intervention. On one side sit interests in administrative tidiness and uniform messaging. On the other hand, there are immediate and noncompensable risks to personal safety, freedom of movement, and dignity. To reset the national baseline before testing the merits would repurpose an exceptional procedure into policymaking by injunction, with attendant costs to the Court’s own authority.
If the injunction stands, the signal is not that the policy is frozen but that the Executive must do the administrative work in the open. After Loper Bright Enterprises v. Raimondo (2024), evidence is required, not assertions, and reliance and foreseeable harms must be addressed in daylight. The Court can rest on the Administrative Procedure Act, reserve equality questions for full argument, and demand a developed record and proper process before any redesign of identity fields. In either course, Trump v. Orr will set the architecture of identity governance, deciding whether foreign affairs framing narrows ordinary scrutiny or whether agencies must justify trade-offs in proportion to the human stakes.