“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
What’s at stake in this case?
Trump’s State Department recently required all new passports to identify the holder’s gender at birth, exposing transgender individuals to violence, harassment and discrimination. Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett cast deciding votes in a 6-3 shadow docket ruling that let Trump force trans people to misgender themselves on their passports. The November 2025 Court ruling was in Trump v Orr.
What happened in this case?
In January 2025, contrary to federal law and practice in force for more than 30 years, Trump issued an executive order pursuant to which the State Department required all passports to identify the holder’s gender at birth.
Several transgender individuals filed suit. The district court agreed that following the new Trump policy was harmful and dangerous,and issued a preliminary injunction against it. Neither the district court nor the First Circuit court of appeals would stay the decision, so the government went to the Supreme Court to seek an immediate stay on the shadow docket as the case continued in the lower courts.
What did Trump justices Gorsuch, Kavanaugh, and Barrett, along with the rest of the 6-3 majority, decide?
The three Trump justices, along with Chief Justice Roberts and Justices Alito and Thomas, issued an unsigned opinion of several paragraphs that granted the government’s motion and effectively permitted the new Trump policy to take effect while the case moves forward. The majority claimed that requiring that passports display holders’ gender at birth “no more offends equal protection principles than displaying their country of birth,” a “historical fact” that does not subject “anyone to differential treatment.”
What did Justice Ketanji Brown Jackson and others say in dissent?
Justice Ketanji Brown Jackson, joined by Justices Sonia Sotomayor and Elena Kagan, strongly dissented. She called the majority’s holding a “pointless but painful perversion of our equitable discretion.” This was because, she explained, the government did not show any real harm from waiting until the litigation was decided to implement Trump’s new policy. In contrast, , while transgender passport holders would suffer “significant injuries” from being unable to obtain passports listing their current gender identity, as the district court found. The record shows, she explains, that transgender people who are forced to travel with passports that comply with Trump’s new policy “are exposed to violence, harassment and discrimination.” For example, she went on, named plaintiff AC Goldberg maintained that TSA officials had “sexually assaulted” him while “conducting searches on his body.”
Why is the result harmful?
The shadow docket ruling made possible by Trump justices Gorsuch, Kavanaugh, and Barrett will harm not only the transgender Individuals who filed suit, but will also subject all transgender travelers who use US passports to discrimination and other harm. The case is also another example of the current Court’s misuse of the shadow docket, and clearly illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.