Trans, nonbinary passport protections remain in effect, judge rules

Judge Kobick denied DOJ's request to allow State to enforce Rubio's anti-trans/anti-nonbinary passport policy after the SCOTUS Skrmetti decision, but DOJ is appealing.

On Friday, a federal judge denied the Trump administration's request to allow the State Department to enforce Secretary Marco Rubio's anti-transgender/anti-nonbinary passport policy.

As such, the classwide preliminary injunction blocking the Rubio policy — and allowing trans and nonbinary people to obtain the appropriate marker on their passport — remains in effect.

On June 17, U.S. District Judge Julia Kobick had granted preliminary relief to two classes of people challenging the policy — essentially, trans people seeking an “M” or “F” marker on their passport and people seeking an “X” marker. After the U.S. Supreme Court’s decision in U.S. v. Skrmetti, which came down the next day, the Justice Department filed a motion asking Kobick to dissolve the preliminary injunction in the case.

On Friday, Kobick — a federal judge in Massachusetts who is a Biden appointee — denied that request.

“Whether or not Skrmetti alters the Court's conclusion that the Executive Order and Passport Policy must be reviewed under intermediate scrutiny—an issue on which the Court expresses no opinion—the government has not argued that Skrmetti or any other change in law disturbs the Court's independent conclusion that PI Class members are likely to succeed on their claim that the Executive Order and Passport Policy are based on unconstitutional animus toward transgender Americans,” she wrote.

Additionally, she noted, the government “has not identified any change in law or fact that alters the Court's conclusion that [Preliminary Injunction] Class members are likely to succeed on their independent claim that the Passport Policy is arbitrary and capricious, in violation of the [Administrative Procedure Act].“

Kobick also denied any request to stay the injunction pending appeal.

[Update, 6:25 p.m.: The Justice Department, which had already appealed the underlying individual preliminary injunction in the case, filed a notice that it is appealing the class certification and classwide preliminary injunction from June and Friday’s order as well.]

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