SCOTUS Echoes Plessy v Ferguson in Greenlighting Trump's Transphobic Passport Policy

Repeating a pattern that has become all too familiar, late last week the Roberts Court issued a per curiam order staying a lower court ruling that had temporarily halted a plainly immoral and very likely unlawful Trump administration policy. In Trump v. Orr, the Court stayed an injunction against the administration's transphobic policy requiring that new and renewed passports list the passport holder's sex as their sex assigned at birth. As Justice Jackson (joined by Justices Sotomayor and Kagan) explained in dissent, the new policy reversed 33 years of prior practice (including in the first Trump administration) whereby transgender citizens could obtain passports that accorded with their current gender identity.

The federal district court granted a preliminary injunction based on the likelihood that plaintiffs who challenged the policy would prevail in their equal protection claims that the policy: (1) discriminates based on sex and therefore must satisfy, but fails to satisfy, intermediate scrutiny; and/or (2) is rooted in animus and is therefore subject to and fails a form of heightened rational basis scrutiny. Last week's order indicates that the plaintiffs will likely fail on the merits, however, because, according to the SCOTUS majority, "[d]isplaying 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."

It is difficult to read that statement without being reminded of what the Supreme Court, in its glorious obtuseness, said about state-mandated segregation that was challenged in Plessy v. Ferguson on the ground that it "stamp[ed]. the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act," Justice Brown asserted for the majority, "but solely because the colored race chooses to put that construction upon it."

The Orr Court's similar don't-be-so-sensitive pronouncement is either naïve or disingenuous. For one thing, as indicated by a prominent case that reached the Supreme Court two separate times (in Zivotofsky I and Zivotofsky II), listing a country of birth on a passport is not a simple historical fact; it can carry political content of great importance to the government and the individual on whose passport it appears.

What about other characteristics? In a column on Verdict, Professor Vikram Amar gives the following hypothetical example:

Imagine the government recorded race (on birth certificates and thus on passports) in a way that used a racial epithet (even one less extreme than the N-word) for black persons.  Or, perhaps more realistically, what if government forms and passports capture race in a binary white/non-white way, lumping all non-whites together and characterizing them as different from whites?  As the Court in Loving v. Virginia pointed out, collapsing all non-whites and distinguishing them from whites might inherently send messages of differential respect that centrally implicate equal protection values.

Or consider a real example. My own birth certificate was issued by the City of New York. It includes a space for "Usual Occupation" and "Kind of business or industry in which work was done" for Father but not for Mother, while for Mother but not for Father, it includes a space for the total number of previous children born to her and the total number of those children currently living. In blatantly stereotyping men as employed in the labor force and women as reproductive agents only, NYC was clearly engaging in what we would now recognize as unconstitutional sex discrimination. Admittedly, my birth certificate dates to the 1960s, before the Supreme Court's recognition that sex discrimination triggers heightened scrutiny, although the stereotype was unfair even then. My mother's Usual Occupation, had the city bothered to ask, would have been listed as high school teacher.

Professor Amar's point is that how the government chooses to characterize "a historical fact" can be discriminatory. My further point is that the very choice of what information to include on an official document can implicate equal protection principles. Both principles are in play in Orr.

Per Professor Amar's point, passports currently issued by the U.S. do not have a field for "sex assigned at birth," which would arguably be a matter of historical fact. They have a field for "sex." Characterizing a transgender man as female--which is what will appear on passports under the new Trump administration policy that SCOTUS has just greenlighted--is not a matter of "historical fact." It is a statement of trans erasure by the government.

But even if (as surely will not occur under the current administration), the "Sex" field on new passports were to be designated officially as "Sex assigned at birth," that would not cure the equal protection problem--per my point above. The very choice to list "Sex assigned at birth"--even if it is accurately recorded in each case--is problematic. It implies that sex assigned at birth is a person's real sex or at least that it's the definition of sex that matters.

Yet there is no sound reason why that would be. It is not as though airport screeners check travelers' DNA to determine whether they have the right combination of X and Y chromosomes to match the sex assigned at birth listed on their passports. And in a hypothetical future in which biometrics including DNA analysis figure into checking identities, one would expect much more sophisticated and detailed measures than sorting travelers into one or the other half of the global population.

Moreover, to the extent that sex is useful as an identifier, when they differ, current sex is much more useful than sex assigned at birth. A passport that lists a transgender man's sex as female will cause confusion, leading screeners to question his identity. That will not only cause delay and dignitary harm to the transgender traveler but endanger the safety of everyone, because it will divert attention of screeners who will have less time to focus on genuine impostors.

Thus, the Orr majority's claim that the sex designation on a passport "merely attest[s] to a historical fact" is just wrong.

To be sure, the majority also thought that the government would suffer irreparable injury, citing its decision in Trump v. CASA, which in turn cited and quoted a chambers opinion of Chief Justice Roberts for the proposition that "any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury." But even though the Court has repeatedly relied on this principle in its emergency docket cases, it makes little sense.

Of course the government has an interest in enforcing the law--and thus in some sense whenever some period of time goes by during which the government is unable to enforce some law, the government suffers irreparable injury. However, the government has no valid interest in enforcing an unconstitutional law. And meanwhile, persons whose constitutional rights are violated by the enforcement of an unconstitutional law suffer irreparable injury during the period when the law is being enforced against them. Thus, the government's generic interest in enforcing any particular law is canceled out by that law's challengers' generic interest in not having their constitutional rights burdened.

Which side's interests outweigh the other thus depends on two things. One is which side is right about the law's constitutionality, but that concern is factored into the likelihood of success on the merits. To the extent that the risk of irreparable injury enters the calculus, it should be something more concrete than either a generic interest in law enforcement or a generic interest in vindicating constitutional rights. Justice Jackson's dissent in Orr and in other emergency docket cases makes that point repeatedly--at least with respect to the assertion of the government's generic interest in law enforcement.

In his Verdict column on Orr, Professor Amar wonders why Justices Jackson, Sotomayor, and Kagan don't feel compelled to accept that the government's generic interest in law enforcement can give rise to irreparable injury as a matter of stare decisis. He's right that they would seem to have some obligation to explain their repeated dissents on the same point. Could they?

Justices Brennan and Marshall persistently dissented from the Court's rulings whenever it affirmed a death penalty. They believed that the death penalty was cruel and unusual punishment in all circumstances. Given the enormous stakes, they deemed it inappropriate to accept stare decisis as a sufficient basis for overcoming what they considered a matter of not just constitutional interpretation but morality.

The application of the irreparable injury portion of the standard for granting injunctive relief hardly has the same moral gravity as the permissibility of the death penalty, so the Brennan/Marshall principle is not available here. However, maybe the dissenters don't need a ground for overcoming stare decisis because it doesn't come into play in the first place.

Each case in which the Court has credited the government's generic interest in law enforcement as giving rise to irreparable harm arose on the Court's emergency docket. True, the Court took full briefing and heard oral argument in Trump v. CASA, wherein it once again credited the generic interest in law enforcement, but it did so based on a string cite of per curiam and in chambers opinions. The Court has never given plenary consideration to or remotely adequately justified the generic interest as a basis for finding irreparable injury.

It might be objected that because the issue only ever arises by way of emergency stay application, the Court will never have occasion to consider it on the plenary docket. But that's not true. First, as CASA itself illustrates, some emergency stay applications end up being transferred to the plenary docket. Second, the SCOTUS stay standard doesn't differ substantially from the standard for preliminary injunctions by a district court. The Court could, in a case reviewing a district court's grant or denial of a preliminary injunction, ask for briefing and argument on the question whether the government's generic interest in law enforcement inevitably gives rise to irreparable injury that is not canceled out by the law's challengers' generic interest in not being subject to an unconstitutional law.

Unless and until that happens, Justices Jackson, Sotomayor, and Kagan have an answer to the question why they're not following precedent: there is no binding precedent to follow.

That said, I agree with Professor Amar's bottom line: they should not limit their dissents to complaints about the rather bloodless question of whether the Court has been applying the correct standard for reviewing stay applications; they should instead forcefully engage the merits. After all, as we have seen all too often in President Trump's current term, there is no shortage of legal merits arguments to be made against his policies.

-- Michael C. Dorf