'Patently inequitable': Ketanji Brown Jackson whines after SCOTUS stays Biden judge's order in trans passport case

The U.S. Supreme Court delivered the Trump administration a victory on Thursday, prompting bitterness not only from trans activists but from Justice Ketanji Brown Jackson, who suggested that the "regrettable" ruling might leave transgender-identifying individuals at risk of "harassment and bodily invasions."

President Donald Trump signed an executive order on Jan. 20 directing his secretaries of state and homeland security to ensure that government-issued identification documents, including passports and visas, "accurately reflect the holder's sex."

'Today, the Court refuses to answer equity's call.'

The Trump administration's reversal of the Biden-era policy that enabled people to choose their own sex marker as well as a third marker, "X," instead of an "M" or an "F" marker, was poorly received by some radicals.

Keen to have the government continue indulging their delusions, several transvestites joined the American Civil Liberties Union, the ACLU of Massachusetts, and Covington & Burling LLP in a lawsuit over the passport policy in February.

In April, U.S. District Judge Julia Kobick, a Biden appointee, granted them a preliminary injunction preventing the State Department's enforcement of Trump's Executive Order 14168 while the lawsuit played out — but only as it applied to six of the plaintiffs. Months later, Kobick granted a class certification request and expanded the scope of her injunction.

After its appeal was rejected by the First Circuit Court of Appeals, the Trump administration filed an emergency stay request to the Supreme Court.

To the chagrin of non-straight activists, the high court granted the stay on Thursday, stating, "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."

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Photo by Hyoung Chang/Denver Post/Getty Images

The court noted further in its unsigned order, which was opposed by all three liberal justices, that the "respondents have failed to establish that the Government's choice to display biological sex 'lack[s] any purpose other than a bare ... desire to harm a politically unpopular group.' ... Nor are respondents likely to prevail in arguing that the State Department acted arbitrarily and capriciously by declining to depart from Presidential rules that Congress expressly required it to follow."

The high court concluded that absent a stay, the government would suffer a form of irreparable injury as the Biden judge's injunction could lead to foreign affairs implications.

Justice Jackson noted in her dissenting opinion that "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 casting doubt on her "obliging" colleagues' comprehension skills, Jackson — whose past opinions have bewildered her conservative and liberal peers alike — characterized the reality-affirming passport policy as "new" and legally questionable. Then sentences later, she acknowledged that it was not new so much as a reversion to the government's long-standing policy as it existed until at least the early 1990s.

Jackson argued that the cross-dressing plaintiffs face greater harm absent injunctive relief than the government would face absent a stay, and expressed doubt whether the government faces any irreparable harm at all.

"But the Court somehow sees fit to grant the Government's stay request regardless, waving away its abject failure to show any irreparable harm and promoting a patently inequitable outcome to boot," wrote Jackson.

Jackson suggested further that the indication of an individual's actual sex on a passport amounts to a concrete injury and echoed the Biden-appointed district court judge, writing 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 her conclusion, the leftist justice complained that "today, the Court refuses to answer equity's call."

Jon Davidson, senior counsel for the ACLU's LGBTQ & HIV Project, joined Jackson in complaining about the court's decision, stating, "This is a heartbreaking setback for the freedom of all people to be themselves and fuel on the fire the Trump administration is stoking against transgender people and their constitutional rights."

"This decision will cause immediate, widespread, and irreparable harm to all those who are being denied accurate identity documents," said Jessie Rossman, legal director of the ACLU of Massachusetts. "The Trump administration's policy is an unlawful attempt to dehumanize, humiliate, and endanger transgender, nonbinary, and intersex Americans, and we will continue to seek its ultimate reversal in the courts."

Attorney General Pam Bondi referred to the court's ruling as the administration's "24th victory at the Supreme Court's emergency docket" and noted, "Today’s stay allows the government to require citizens to list their biological sex on their passport. In other words: there are two sexes, and our attorneys will continue fighting for that simple truth."

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