MARY LOUISE KELLY, HOST:
Today, the Supreme Court allowed President Trump to proceed with his plan to require that passport applicants list their sex as designated on their birth certificate without any accommodation for transgender individuals. The court's decision overturns, at least for now, a lower court decision that had blocked the Trump passport policy from going into effect. The vote was 6 to 3 along ideological lines. Joining me now, NPR legal affairs correspondent Nina Totenberg. Hey, Nina.
NINA TOTENBERG, BYLINE: Hi there.
KELLY: Start with what the Trump policy is. How does it differ from previous policy?
TOTENBERG: Well, for 33 years, across six presidential administrations, the State Department has allowed transgender people to list their gender identity on passport applications instead of their sex listed at birth. But the Trump administration broke with those policies, putting in place a requirement that everyone getting a passport list their gender as their sex at birth. A group of transgender individuals brought a class action challenging the policy and contending that it amounted to unconstitutional sex discrimination. And they won in the lower courts. The Trump administration then went to the Supreme Court asking that those lower court orders be blocked, at least for now, and the court gave the administration what it wanted.
KELLY: And I gather, Nina, this is another of these cases that have been brought to the court on the emergency docket. A lot of those cases have been criticized 'cause the court has failed to explain its reasoning. Was today's court order any different?
TOTENBERG: You know, I think so. While the explanation was only about a page and a half long, it was unusually blunt. And here let me quote from what the court said, "displaying passport holders' sex at birth no more offends equal protection principles than does the requirement that the passport show the person's country at birth." In both cases, the justices said, the government is merely attesting to a historical fact without subjecting anyone to different treatment.
KELLY: Although, there have been allegations that some of the plaintiffs who joined this case - that they had been beaten up. They had been subjected to strip searches once it became clear that they were transgender.
TOTENBERG: Yes. That is true. But the court didn't give much weight to those claims, and therefore, the unsigned opinion said that the government was likely to prevail when and if the case comes back to the court after the court of appeals, which had refused to intervene, reviews the trial court decision. In fact, the Supreme Court said it was the Trump administration that was suffering from an irreparable injury by not being able to carry out a policy with foreign affairs implications.
KELLY: We said this was a 6 to 3 decision. Are the three dissenters the ones who I am imagining they were?
TOTENBERG: Yes, they are. Justice Ketanji Brown Jackson wrote for the three liberal justices. She accused the majority of allowing a questionable policy to be adopted without any justification, while at the same time blinding itself to the actual demonstrations of harm to individuals who brought this case. As Jackson put it in her sizzling dissent, (reading) the court has once again paved the way for immediate infliction of injury without adequate or really any justification. Because I cannot acquiesce to this pointless but painful perversion of our equitable discretion, I respectfully dissent.
KELLY: Thank you, Nina.
TOTENBERG: Thank you.
KELLY: NPR's Nina Totenberg. Transcript provided by NPR, Copyright NPR.
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