“It was the best of times, it was the worst of times,” the opening line of Charles Dickens’ 1859 novel “A Tale of Two Cities,” could be used in 2025 to describe the differences between the approach of the two major political parties in determining how a government agent can decided if that passport is yours.
Historical Development of Passports
Before World War I, passports and other identity documents were not frequently required for crossing international borders. Instead, letters of safe passage were issued by a variety of authorities, including the church or local officials often unrelated to the country of nationality of the traveler.
Following World War I many European countries installed border controls and continued the travel document requirements, including passports, in order to identify travelers.
The League of Nations in the 1920s organized a series of passport conferences that resulted in the first international standards for the format of such documents to facilitate their recognition and trustworthiness against fraud. The British passport, which emerged as the gold standard, provided the groundwork for a system of stringent border controls and immigration restrictions that remains in place today.
Travel documents serve primarily as carriers of personal and biometric data that enable countries to enforce a legal identity on its citizens by defining key attributes, such as official name, sex and country of citizenship.
U.S. Passports and Gender I.D.
The objective of a passport was, and is, “to test to the identity and nationality of the bearer.” 22 CFR 51.1.
The testing can be done by the government or private companies by using the photo, the listed gender, or sex, and the color of the binder for the passport.
In the U.S. until 2010, passport applicants who wished to obtain passports with sex markers that were different from the sex assigned to them at birth had to submit evidence of “surgical reassignment.”
In 2010, under President Barack Obama (D) the State Department began allowing passport applicants to submit a doctor’s certification avowing that they had undergone “clinical treatment,” instead of surgical reassignment, for gender transition.
In 2021, under President Joe Biden (D) the State Department allowed applicants to “self-select” the sex marker that matched their gender identity without any proof of surgical reassignment or even a doctor’s certification of clinical treatment. Under this change, applicants were permitted to list their gender as “X.”
The effect of Presidents Obama and Biden in permitting anyone to change genders whenever, and as often, as one chose, eliminates the ability of an inspector to use gender to identify whether the passport belonged to the bearer.
Same issue for photos, as the appearance of the person is frequently altered to fit a preference for a gender. How does a gender X person look?
In 2025, the Republican President Donald Trump’s State Department mandated that individuals must be identified by their sex at birth on travel document and enabled inspectors to comply with the federal law to “test the identity of the bearer.”
On St. Patrick’s Day 2025, the Democrats in California submitted a comment in opposition.
District Court
As usual, the inclusion of Trump’s name caused Democrats to race to find a Democrat-appointed judge.
The Biden-appointed Federal Judge Julia Kobick of the District Court of Massachusetts issued a nationwide injunction asserting that the “Trump policy” discriminated on the basis of sex.
After the First Circuit Court of Appeals declined to reverse it, Trump filed an Emergency appeal to the U.S. Supreme Court.
The U.S. Supreme Court
The SUPREME COURT OF THE UNITED STATES in DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. ASHTON ORR, ET AL, ON APPLICATION FOR STAY, held that:
“Displaying a passport holder’s sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment.”
The Court held that the injunction did not satisfy the requirements for an injunction under the Federal Rules and sent the case back to the district court for a decision on the merits.
Dissent
After the Court’s half-page opinion, JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN joined, wrote a ten-and-a-half-page dissent:
“As is becoming routine, the Government seeks an emergency stay of a District Court’s preliminary injunction pending appeal. As is also becoming routine, this Court misunderstands the assignment.”
After advising the Republican appointed Justices that they “misunderstood the assignment,” Justice Jackson continued by citing her dissent from another case:
“Our task in deciding stay applications is not simply to make a “back-of-the-napkin assessment of which party has the better legal argument.” Noem v. Doe, 605 U. S. ___, ___ (2025). The Court ignores these critical limits on its equitable discretion today.
The Court “ignored equitable discretion,” because that is not the proper standard to apply.
Justice Jackson continued:
“The District Court found that this is a significant harm, noting that transgender people who encounter obstacles to obtaining gender-congruent identity documents are almost twice as likely to experience suicidal ideation, and report more severe psychological distress, than transgender people who do not face such barriers. In addition, the current record demonstrates that transgender people who use gender-incongruent passports are exposed to increased violence, harassment, and discrimination.”
“For example, plaintiff, Chastain Anderson, attests to having been strip searched when traveling with identity documents that do not match her current gender expression. Another, Zaya Perysian, has been subjected to invasive pat downs by TSA agents to confirm her gender after they observed the disjunction between her female gender expression and the male sex marker on her passport.
And two others, Ashton Orr and Ray Gorlin, have been accused of presenting fake identity documents, and were forced to out themselves as transgender and nonbinary to TSA agents.
These folks were lucky as what would they have done if the agents did not attempt to verify the authenticity of the passports but simply rejected them?
Justice Jackson continued “…the plaintiffs and the classes of transgender Americans they represent are forced to make a difficult choice that no other Americans face: use gender-incongruent passports and risk harassment and bodily invasions, on the one hand, or avoid all activities (travel, opening a bank account, renting a car, starting a new job) that may require a passport, on the other.”
A bit of a stretch from the facts as none of the complaints involved “harassment” or “bodily invasions.”
Conclusion
The different approaches by the two political parties to passports is captured in the continuation of the opening sentence from “A Tale of Two Cities”: “it was the age of wisdom, it was the age of foolishness.”
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“Foolishness“ does not begin to describe the absurdities of the left in this day and age.
Excellent piece, Brent. One of the things that really annoys me about the tactics used by the transgender lobbyists is their “but if you don't go along with what we want, there will be suicides!” There are certain laws I don't like, for example having to pay exorbitant taxes to a state and local government that wastes money. However, I have never gone to a city council meeting and wept about how if they don't lower my taxes I will commit suicide. But now that I think about it, maybe I should.