The Supreme Court’s Latest Shadow Docket Ruling Reeks of Vicious, Casual Transphobia
Once again, the six-justice conservative supermajority rides gallantly to the rescue of their very favorite president.
Here is a series of words I am very tired of writing: Yesterday, the Supreme Court issued an unsigned opinion allowing the Trump administration to implement yet another dubiously legal, profoundly vile aspect of its policy agenda, over the dissent of three liberal justices who are running out of ways to politely say that their conservative colleagues are cowardly little bigot sympathizers who have abandoned any pretense of caring about their jobs in order to give President Donald Trump whatever he wants, whenever he wants it.
This time, the legal fight is about the State Department’s “Passport Policy,” which requires that newly issued passports reflect the holder’s sex assigned at birth, regardless of their gender identity. This changed a Biden-era policy that allowed transgender and nonbinary people to choose sex markers that matched their gender identities, which both demonstrates basic respect for transgender and nonbinary people and also tracks the actual function of putting a gender marker on a passport, which is identifying the person who presents it.
The Trump administration, ever watchful for new opportunities to inflict cruelty on groups of people who make Fox News viewers upset, reversed course on Trump’s third day in office. To justify the change, Trump issued an executive order describing the concept of transgender identity as “false,” “corrosive,” and “unmoored from biological facts,” and reiterating his administration’s commitment in all things to recognizing “two sexes, male and female,” as determined “at conception.” Under the Passport Policy, people with passports with gender identity markers other than the one associated with their sex assigned at birth can continue to use those passports until they expire, at which point holders will have to apply for passports that comply with Trump’s new, bigotry-inflected requirements.
A group of transgender people sued, and a federal district court had little trouble concluding that the Passport Policy is probably illegal under the Equal Protection Clause. The judge in that case, Biden appointee Julia Kobick, thus blocked the federal government from implementing the policy while the case continues, finding that immediate enforcement would, among other things, cause the plaintiffs to “experience worsened gender dysphoria, anxiety, and psychological distress,” and to “face a greater risk of experiencing harassment and violence.”
But on Thursday, the Supreme Court swooped to the administration’s rescue in Trump v. Orr, unwilling to let its very favorite president wait any longer to make rank transphobia the law of the land. Because the Passport Policy imposes the same sex marker rule on all applicants, the Court wrote in its unsigned opinion, it simply conveys “a historical fact”—a passport holder’s sex assigned at birth—“without subjecting anyone to differential treatment.” And because the issue entails “implications” for “foreign affairs,” the Court concluded, the justices had an obligation to stay the lower order and allow for immediate enforcement, in order to protect the Trump administration from the “irreparable injury” it would suffer if they did not.
You do not need to understand the intricacies of the legal test for granting equitable relief to clock this as incoherent, bootlicking gibberish. As Justice Ketanji Brown Jackson wrote in a dissent joined by Justices Sonia Sotomayor and Elena Kagan, temporarily blocking the Passport Policy only “harms” the government in that it does not allow the government to implement the Passport Policy as quickly as it would like. In its filing with the Court, the White House made what I would characterize as very halfhearted appeals to national security, calling the status quo an “intolerable intrusion on the President’s foreign affairs prerogative” that “forces the government to misrepresent the sex of passport holders to foreign nations.”
Set aside, for a moment, the implication that customs officials in other countries have strong feelings about sex marker conventions on U.S. passports. A more fundamental problem with this argument is that, as Jackson pointed out, the Passport Policy explicitly permits people to keep using non-conforming passports, which sort of undermines the contention that the State Department has some urgent need to enforce the policy Right Now Or Else.
Alas, all of this is confined to a dissenting opinion, because for the six conservative justices, there is no legal emergency quite as urgent as a lower court judge who has the gall to insinuate that the law applies to Donald Trump the same as it does to anyone else. Time and again, they have responded to his assertions of power by obediently cranking out boilerplate orders like this one, running a find-and-replace macro to change the name opposite Trump’s in the case caption and then calling it a day. As Jackson put it earlier this year, this six-justice conservative supermajority has only two real rules for dealing with the administration’s demands: that “there are no fixed rules,” and that the administration “always wins.”
When the conservative justices issue a shadow docket opinion like this one, they often stress that they are not ruling on the merits. But the only snippet of legal argument the majority dares to include—the assertion that the Passport Policy conveys “a historical fact without subjecting anyone to differential treatment”—reveals a lot about how the justices really feel about the transgender plaintiffs before them. By allowing the administration to require people to use the marker associated with the “historical fact” of their sex assigned at birth, the conservatives are tacitly endorsing Trump’s position that any other gender identity is, in some sense, “false”—not real, not serious, and not entitled to their respect. The logic is every bit as transphobic as Trump’s executive order; the Court simply uses more legalese to embrace it.
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Irreparable harm? Maybe they could elaborate on that.
Shadow docket must be used for EMERGENCIES ONLY !!