Supreme Court's 6-3 Passport Ruling Intensifies Debate Over Legal Definition of Sex

The U.S. Supreme Court recently upheld the Trump administration's policy requiring passports to reflect an individual's sex assigned at birth, a decision that has further fueled the contentious national debate over the legal definition of sex. In a 6-3 ruling in Trump v. Orr, the Court granted a request to temporarily halt lower court orders that would have allowed transgender and nonbinary Americans to choose their sex designation on passports. The majority stated that "displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth."

Justice Ketanji Brown Jackson issued a sharp dissent, joined by Justices Sonia Sotomayor and Elena Kagan, arguing that the majority's decision "paved the way for the immediate infliction of injury without adequate (or, really, any) justification." She contended that the government failed to explain any urgent foreign policy interest in dictating sex markers on passports, while the challengers faced "concrete injuries" including psychological distress and increased risk of violence. This ruling aligns with a broader legal push to solidify biological definitions of sex in law.

The American Civil Liberties Union (ACLU) has consistently argued against such fixed biological definitions, asserting that the USA does not need a stable definition of sex in its laws, particularly when it excludes transgender and nonbinary individuals. The organization views legislative efforts to define "man" and "woman" solely by biological sex at birth as discriminatory and an attempt to codify antiquated gender assumptions. The ACLU has been actively involved in challenging laws, including Tennessee's ban on gender-affirming care for minors in the Skrmetti case, arguing these violate equal protection.

Justice Jackson has previously signaled her judicial perspective on these matters. During her confirmation hearing, when pressed to define "woman," she famously responded, "I'm not a biologist," emphasizing her role as a judge to interpret laws based on legal arguments. In oral arguments for the Skrmetti case, she drew parallels between the Tennessee law and historical anti-miscegenation statutes, suggesting the law prohibited actions "inconsistent with your own characteristics." This stance underscores a judicial skepticism towards state-imposed biological definitions that may impact individual rights.

The ongoing legal battles reflect a deep societal division. As one social media commentator, Glenna Goldis, sarcastically remarked, "ACLU argues the USA doesn't need to have a stable definition of sex in its laws. 'Prove it, Trump! Prove that words should have meaning!' Jackson is on board." This highlights the public perception of the ACLU's advocacy and Justice Jackson's alignment with a more fluid interpretation of sex in legal contexts. The Supreme Court's recent actions ensure that the legal definition of sex will remain a central and contested issue in American jurisprudence.