Supreme Court makes ruling on passports and biological sex

On Thursday, November 6th, the Supreme Court, in Trump v. Orr, upheld the federal government’s right to issue U.S. passports indicating a person’s true sex. The Administration abandoned the Biden State Department policy that basically made U.S. passports indicate whatever “gender” an applicant wanted. Alas, even the Bidenites were restrictive: you could be “M” (male), “F” (female), or ‘X” (anything else), but you could still not insert your own alphabet soup gender.

The Trump Administration said it would issue passports in alignment with a person’s sex as soon as it entered office. Those who disagreed, especially those who had to renew passports previously issued in their make-believe gender, were outraged that the Administration chose to follow the science and restore sexual truth to the passport’s biographical page.

As usual, they sued. As usual, they found upset and sexually confused plaintiffs in Massachusetts to run to a federal district court judge there and obtain a nationwide injunction to block the Trump policy. As usual, they found a judge willing to oblige. The administration then appealed to the First Circuit Court of Appeals, which covers New England, and lost. No surprise there: its five active judges were all appointed by Democratic presidents, four by Joe Biden.

“I’m not a biologist…”

The Administration then sought an emergency appeal to the U.S. Supreme Court to overturn the injunction and reinstate its policy. The Court granted that yesterday, 6-3. Justices Jackson, Kagan, and Sotomayor dissented, and Justice Ketanji Brown Jackson wrote on behalf of the three.

I wrote recently about why I believe Justice Jackson is out of her league on the Supreme Court. I consider her to be an ideologue politician in judicial robes, and precisely because of these sexual and identity issues. During Jackson’s confirmation, Tennessee Senator Marsha Blackburn asked her, “What is a woman?” Brown Jackson’s dodge was her infamous comment: “I’m not a biologist…”

That answer suggested either stupidity or disingenuousness, neither of which recommends one as an associate justice of the Supreme Court of the United States. That a woman, explicitly chosen by Joe Biden because she was a woman (and black), could not explain what a woman is was game-playing.

Recalling that non-answer is not my idée-fixe: it is absolutely relevant to this case. To have answered Senator Blackburn’s question honestly would have either required her to acknowledge biological sex (which would have put her on the ideological outs with the Biden-Harris administration) or admitted her commitment to the fictions that men can be women, women men, and who knows what else. That, in turn, would have absolutely polarized her confirmation (though, with Democrats voting in lockstep in the 117th Congress on judicial nominations, she probably would have squeaked through).

Brown Jackson’s dissimulation is in keeping with the well-worn act of liberals to pretend liberal presidential nominees have no pre-formed views about anything while conservative nominees betray their closed minds by what they wrote in a friend’s high school yearbook. Ruth Bader Ginsburg was a longtime lawyer for Planned Parenthood but–of course!–she had an “open mind” on abortion legislation. And of course, Brown Jackson had no views on sex versus gender.

That is, until November 6, 2025, when she discovered her voice to dissent in Trump v. Orr.

The Ruling: Preliminaries

Trump v. Orr is a “shadow docket” ruling, but that term is not nefarious, even if it sounds it. It means that it came to the Court on emergency appeal for the limited purpose of addressing one issue: the injunction.

Few cases ever get to the Supreme Court. Those that do usually arrive after several years of litigation in lower courts, of which there are two on the federal level. The average case in the Supreme Court usually percolates there for a year before being decided. So, by the time a case works its way through the federal judiciary, several years often pass.

The Orr litigants—like most of the cases trying to stop individual Trump policies—count on that. The strategy is: find a federal district court likely to be unfriendly to Trump’s vision of the law. (Federal district courts in Massachusetts, Rhode Island, southern New York, California, and the District of Columbia are typical venues. If you want to stop Trump, you do not file in the U.S. District Court for the District of North Dakota.) One federal judge is enough to issue a nationwide injunction blocking a policy.

Then, multiply the legal challenges to drag out a long preliminary trial over the facts and law. If you win at the district court, the administration will probably appeal to the circuit court of appeals (which, in New England, has no conservatives): lather, rinse, repeat the lower court process. After some time there, seek a full-blown, generally year-long review in the U.S. Supreme Court. By then, Trump (and his policy) will be gone.

The “shadow docket” allows the government to seek expedited Supreme Court review of limited questions while the case proceeds through normal channels. The usual review involves the question, “Can the government go ahead with its policy in the interim?” That decision usually follows a preliminary sense from the Court about who is likely to win (“prevail”) and whose rights would be damaged if the status quo is maintained.

In this case, those are the government’s rights. The government is not just another “party” with a different “opinion” alongside Ashton Orr. The government is sovereign; it represents the people. That’s why it is elected, whether one likes the outcome of an election or not. It is chosen to make policies for the common good …and did.

Except that the plaintiffs do not like that policy and–as on multiple other Trump policies–have sought to gum up policy implementation through prolonged court fights, generally pursued in hostile venues. The Administration has called that bluff and seeks interim Supreme Court permission to enforce its policies pending final decisions.

As I wrote in criticism of some recent Church statements claiming U.S. immigration policy offends illegal aliens’ “dignity,” dignity is not a one-sided concept exclusively belonging to aliens. The community has dignity, too: the policy decisions made by the community, enshrined in its laws and regulations duly promulgated, are expressions of collective sovereignty and common good that deserve respect and deference. They are the choices of a free community that has chosen by legal means to do A instead of B. That collective choice must count for something more than “another opinion” that might offend the “dignity” of an individual.

That’s how Trump v. Orr reached the Supreme Court.

The ruling and the dissent

The Court majority’s decision runs one page; the Brown Jackson dissent, ten pages. The majority held that listing a passport holder’s “sex at birth” (I dislike that qualification, as sex doesn’t change during one’s life) no more violates the Constitution’s equal protection clause than listing his country of birth. Sex is a historical fact, both in terms of this individual (A was born a girl) and U.S. practice (American passports, like most world passports, have traditionally included the sex of the bearer). There is no intended, overt discrimination here, so the government will likely win someday. Until that decision is made, however, the government may go ahead with listing sex on the passport.

Brown Jackson’s dissent seeks to up the ante. It should not just consider whether the government might prevail in the future but—regardless—whether it deserves “our extraordinary intervention” (p. 2). In plain language, the government should have to wait for a long and drawn-out, dilatory process to execute the policies that those elected by the people promised to pursue. She pretends the delay is only temporary (p. 3), willfully feigning ignorance (like ‘what is a woman?’) about how long “temporarily” is.

Some would call this lawfare. Brown Jackson wants to call it the Court not doing its job, citing herself (in an earlier dissent) as justification for that claim (p. 2).

Brown Jackson wants to have it both ways. She brands the Administration’s policy of listing sex as “new” but the do-it-yourself gender listing as old (by at least 33 years). The truth is that what is “new” is the do-it-yourself gender policy. It came in under Bill Clinton, but back then, you had to prove you underwent “surgical reassignment.” In the Hillary Clinton State Department, the threshold was reduced to any “clinical treatment” (e.g., taking hormones). With Biden, it was just a matter of individually declared “self-select[ion].” What is “old” is that until 1992, American passports always listed sex as a biological fact. It’s that policy Brown Jackson would make us believe will cause Orr and others “irreparable harm.”

Most of the rest of Brown Jackson’s extended diatribe is about the alleged “harm” transgender Americans will suffer if their biological sex is included in their passport and why, therefore, it is the government that should have to wait to go back to a historically grounded practice.

Why it matters

Transgender ideology, promoted so strongly by the last administration, essentially subverts both science and civil documents. Sex is no longer a biological fact; it is a state of mind. It is one thing when an individual nurses that delusion, but it is another when an organized society is expected to put its voice behind it, affirming it.

We see this happening in what I, as a theologian, would call the “dis-incarnating of the person.” The person is no longer a bodily being; the person has a body attached, a physical extension that may actually be the “wrong” one. Contrary to most of human history, sex is no longer normally what you see is what you get. A breast-bearing person may be a “man” who “chest feeds.” A penis-bearing person may be a “woman.”

Whatever the implications of such ideas on a personal level, they acquire a whole other meaning when the civil community is expected to affirm the claim. We see the progressive and pernicious effect of this in civil documents. Passports claim this is a “woman.” Birth certificates now dis-incarnate motherhood and fatherhood: we have “parent one” and “parent two,” the names filled in grounded not in any biological reality but the say-so of interested parties. The answer to whether somebody is a sex pervert voyeur in the opposite sex’s private spaces or just a “transitioning individual” using the “appropriate locker room” comes not from biology but the person’s say-so. The burden of proof of perversion has moved from the mind of the sex pervert to the victim accusing him of it.

These are radical implications for any society. They originate when Harvard elites dissemble about “what is a woman?”