Elusive Discrimination

The Supreme Court's continued unwillingness to vindicate trans rights.

The Supreme Court again intervened on the “emergency” docket to green light a cruel and discriminatory Trump administration policy. The Court’s order in Trump v. Orr will allow the State Department to restart enforcement of its policy requiring passports to list an applicant’s sex assigned at birth. The policy had been blocked nationwide for months after a Massachusetts federal judge held that it likely violated the Constitution and federal law.

There are some important things to note about the Court’s decision, what it means as a practical matter and what it portends more broadly.

This latest action from Court on the “emergency docket” is part of a drastic shift in how the Court engages with lower court decisions with far-reaching material and doctrinal consequences. By May of this year it was already clear that the Trump administration was going to rely on the emergency/shadow docket far more than prior administrations. As Steve Vladek then reported, the administration had filed 13 emergency applications in 15 weeks as compared with a total of 8 applications in the sixteen years of the George W. Bush and Obama presidencies. Now, it feels like the administration is rushing to the Supreme Court almost weekly whenever they get an adverse decision from a lower court. Most recently, the administration rushed to the Court in an effort to block a lower court order that would have required them to provide SNAP benefits for November.

And as we have seen, the Supreme Court is eager to side with the administration. Time and time again.

With the decision in Trump v. Orr, not only did the Supreme Court intervene in this rushed posture, displacing the careful analysis and findings of the district court, the majority gratuitously opined on the merits of the underlying claims in three paragraphs with almost no reasoning but far-reaching consequences.

The Court not only gave trans people and our legal rights the back of the hand but also signaled its interest in continuing to deny the existence of discrimination against trans people (or maybe the existence of trans people at all). This Order comes on the heels of last term’s emergency Order allowing the ban on open service for transgender people in the military to go into effect and the merits decision in United States v. Skrmetti concluding that banning health care for transgender adolescents was not discrimination based on sex or transgender status. Discrimination, it seems, is never present when the litigant is trans.

This language from the Order also portends nothing good for future Supreme Court action in cases involving trans people: “Displaying passport holders’ 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.” If the government can enforce rules based on the “historical fact” of our sex assigned at birth without offending equal protection principles, then what does that mean for the conditions of our lives in the present? It would seem that we - as trans people - cannot face discrimination involving the refusal to honor our gender identity. To this Court, that is not discrimination, just an historical fact.

One sentence with no citation makes it is difficult to predict how this language will affect other trans rights claims in the lower courts and before the Supreme Court. But at least as to passports, for now, future applicants will be forced to carry a passport that reflects an outdated documentation of our sex. As M. Gessen writes for the New York Times, enforcement of this policy “makes passports less useful for identifying people as they move through the world.” “But if the new rule weakens passports’ manifest function,” Gessen explains, “it greatly strengthens their other function: as a tool to enforce social hierarchy.”

Though there is understandable panic about how enforcement of the passport and other Trump administration policies will play out, it is important to remember that trans people have navigated arcane and conflicting administrative rules regarding how we are classified for much of history. For many of us, identification is an instrument to navigate with less harassment and violence, not an attestation of who we are.

Recently, I did a panel with Torrey Peters in which she reflected on a future in which she may be forced to carry a passport classifying her as male. “I don’t need a pat on the back from Marco Rubio telling me I am a woman,” Torrey reflected. Marco Rubio and Donald Trump, after all, are not the arbiters of our sex. I share Torrey’s view about the (lack of) symbolic value of identification. It is about utility not dignity.

But in some sense, that is beside the point because for the government, this is not about identification at all. As Gessen writes: “The point of the [Gender Ideology] executive order was not to restore ‘historical facts’ but to enforce a gendered social hierarchy and to punish those who do not conform to it.”

At core, this about surveillance and punishment. And so the question I am asking is: how do we navigate these systems of surveillance and punishment to minimize the harms we - and our community members - face? This is not a new question. It is the forever question. We are all navigating these conditions every day regardless of which set of byzantine rules control.

Ultimately, the reason I am invested in having an “M” on my passport is to decrease the likelihood that encounters will cause me delay, annoyance, embarrassment, harassment, or harm. If that is my objective, what other things can I do to decrease those things if I cannot carry a document with an “M”? People’s goals and tools will differ across context, experience, and geography. There is not a single way that we are policed in border - and other - crossings.

But across experience we can work collectively to minimize harm. We can travel together, share strategies and pool information.

The majority of trans people have had mismatching and inaccurate identification for part or all of our lives. We have an endless well of strategies for navigating around and through systems of governance that never contemplated our existence. And so now, we tap into and deepen that well.

***

For more information about what this means for individual applicants, the ACLU has updated the FAQ on this case here.