189. The Breezy Inequity of Trump v. Orr

The Supreme Court's latest grant of emergency relief to the Trump administration illustrates in technicolor the direct (and ugly) consequences of the two different ways it keeps messing up "equity."

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I was impelled to write yet another post (the fourth of this week) in response to the Supreme Court’s Thursday afternoon ruling in Trump v. Orr, in which the justices, over a dissent from the three Democratic appointees, put back into effect a Trump administration policy that requires all new passports to reflect the bearer’s biological sex at birth—even if they are transgender or non-binary.

Specifically, as I elaborate upon below, the ruling provides an unusually accessible example of two of the problematic moves a majority of the justices keep making with respect to Trump-related emergency applications (and no others): The assertion without any deep analytical support that the lower-court ruling at issue is inflicting “irreparable harm” on the executive branch; and the refusal to seriously consider whether that harm is more-than-outweighed by the harm it would cause to put the blocked policy back into effect. The ruling also includes one of the uglier sentences I’ve seen a majority of the Supreme Court sign onto in quite some time. Thus, beyond being the 24th consecutive grant of emergency relief to the Trump administration, the cryptic ruling in Orr is a reminder of just how bankrupt the Court’s proffered justifications are in these cases—both legally and in other ways, too.

The Background

The lawsuit in Orr arose out of a new policy the State Department adopted on January 22, requiring all passports issued from that date onward to reflect the bearer’s biological sex at birth. From 1992 to 2010, the Department had allowed individuals who had undergone surgical reassignment to have their passports reflect as much; from 2010 through this year, it allowed individuals to submit a doctor’s certification that they had received clinical treatment for gender transition. But the new policy reverted to the pre-1992 regime—based on an executive order President Trump signed that described transgender identity as “false” and “corrosive” to American society, and which asserted that “the policy of the United States” is “to recognize two sexes, male and female,” which it defined based on the sex assigned “at conception.”

The policy shift was challenged on both procedural and substantive grounds in federal district court in Boston. On April 18, in a 56-page opinion, the district court granted the plaintiffs’ request for a preliminary injunction in principal part—concluding that the policy likely violated both statutory procedural requirements in the Administrative Procedure Act and the Paperwork Reduction Act, and the constitutional requirement of equal protection. As part of its ruling, the court analyzed, in detail, why enforcement of the policy would cause irreparable harm to six of the seven plaintiffs.¹ In Judge Kobick’s words:

If the plaintiffs use passports [identifying them by their biological sex at birth], they are likely to experience worsened gender dysphoria, anxiety, and psychological distress, and they will face a greater risk of experiencing harassment and violence. Injuries like these cannot be accurately measured or compensated by money damages or other legal remedies

The district court subsequently granted the plaintiffs’ motion to certify a class action of those affected by the policy, and extended the injunction to cover the class. The First Circuit, which is still considering the government’s appeal (and has stayed the briefing deadlines due to the shutdown), declined to stay either the initial ruling or its extension to the class. Like the district court, it devoted at least some of its analysis to the obvious imbalance of the equities:

In its motion papers, the government mostly describes certain long-term institutional interests of the executive branch that may be harmed if the challenged policy is enjoined. In contrast, based on the named plaintiffs’ affidavits and the expert declarations submitted by the plaintiffs, the district court made factual findings that the plaintiffs will suffer a variety of immediate and irreparable harms from the present enforcement of the challenged policy, including “a greater risk of experiencing harassment and violence” while traveling abroad.

The Trump administration then sought a stay from the Supreme Court. On Thursday afternoon, 48 days after the application was filed (the longest to date for any Trump-related application that wasn’t argued), the Court granted it.

The Majority’s Order

Although the Court once again did not write a majority opinion, it did write four paragraphs—the first of which describes the posture and the fourth of which provides the boilerplate language for relief. The heart of the matter is the second and third paragraphs, starting with one whopper of a sentence (with my emphasis added):

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. And on this record, 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.” Trump v. Hawaii, 585 U. S. 667, 705 (2018) (internal quotation marks omitted). 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. See 22 U. S. C. §211a.

For these reasons, the Government is likely to succeed on the merits. And the District Court’s grant of class-wide relief enjoins enforcement of an Executive Branch policy with foreign affairs implications concerning a Government document. In light of the foregoing, the Government will “suffer[] a form of irreparable injury” absent a stay. Trump v. CASA, Inc., 606 U. S. 831, 861 (2025) (internal quotation marks omitted).

The reason why I thought these two paragraphs deserve a post of their own is because of how perfectly they crystallize much of what has been wrong in how the justices in the majority keep justifying grants of emergency relief to the Trump administration.

Problem #1: Irreparable Harm

Let’s start with irreparable harm: As I’ve explained previously, one of the moves the Court keeps making in these cases is to conflate the idea that the government is irreparably harmed whenever a statute is blocked by a lower court with the idea that the “government” is irreparably harmed whenever an executive branch policy is blocked.² The former idea can be traced back to the “presumption of constitutionality,” the prosaic idea that statutes come to court on the assumption that they are valid. Not only is there no such presumption for executive branch action, but even the presumption of constitutionality gives way in the face of a colorable constitutional claim—where the plaintiffs make at least a plausible argument that the statute at issue violates the Constitution.

In a case like this one, where the plaintiffs’ central substantive claims both come from the equal protection principles required by the Fifth Amendment’s Due Process Clause, it is thus doubly inappropriate to treat a district court injunction as necessarily inflicting irreparable harm on the executive branch.

Perhaps mindful of this, the unsigned order in Orr waves its hands at irreparable harm—asserting, with precisely zero support, that the district court’s injunction irreparably harms the government because it “enjoins enforcement of an Executive Branch policy with foreign affairs implications concerning a Government document.” As you might have noticed, there’s no discussion of how sex markers on a passport have any “foreign affairs implications,” let alone how those implications, whatever they may be, are somehow “irreparable.” This last point is especially telling, since the district court’s injunction simply returned the status quo to the very policy that the U.S. government had followed for the preceding 33 years. And lest this seem like a technical point, it’s absolutely essential to the majority’s analysis; without “irreparable harm,” the Trump administration would not be entitled to relief no matter what else is true about this case.

Problem #2: Inequitably Balancing the Equities

As bad as the irreparable harm “discussion” is, what’s even more brazen is how the majority balances the equities: it doesn’t.

As a reminder, when adjudicating requests for emergency relief, the Court is supposed to consider which outcome will cause more harm—leaving the challenged policy blocked, or unblocking it. Thus, even if one accepts that the “government” is irreparably harmed by having to continue a 33-year-old policy, that harm is supposed to be measured against the harm of allowing the Trump administration to terminate it. We don’t need to look that far back to see a non-Trump-related case in which this balance of the equities appears to have been dispositive.

Now take a moment and go back and read the two operative paragraphs of the Court’s ruling—looking for where it acknowledges the irreparable harms that both the district court and First Circuit held the Trump administration policy would inflict on the plaintiffs. (Hint: It didn’t.) Instead, the closest the Court comes to even nodding toward the plaintiffs is the first sentence of the second paragraph—which takes a preposterously dismissive attitude toward the merits of their claims: “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.”

What is so galling about this sentence (which sure reads like it was written by Justice Alito) is that, in dismissing the merits of the plaintiffs’ claims, it utterly ignores why there’s such a critical distinction between having those two data points on a passport. There is nothing about an individual’s country of birth that ought to affect how they are identified, screened, or otherwise perceived by foreign (or even U.S.) immigration officers, even if their current citizenship is otherwise. But a passport that identifies a transgender woman as a man, or a nonbinary individual whose physical appearance might be stereotyped as masculine as a woman, is a different matter altogether. Don’t just take my word for it, though; the district court made specific factual findings to that effect, and the First Circuit reasserted them.

The point is not that one needs to agree with the plaintiffs on the merits here. Or even with the district court’s factual findings. Rather, it’s that the very specific findings of irreparable harm made by the district court were completely ignored by the majority. It’s bad enough that, in other cases, the majority has refused to balance the equities when a stay seemed far less harmful than the alternative (Vasquez Perdomo—the ICE raids case—is a good example); here, the majority never even bothers to explain why the district court was wrong on irreparable harm—or, if it wasn’t, why the irreparable harm to the “government” outweighs the serious harms the district court identified.

The inference that first sentence leaves is that the majority just doesn’t think discrimination against transgender and nonbinary individuals is a thing. But whether or not the Constitution forbids such discrimination, acting as if it doesn’t happen is not just violating long-settled standards of appellate procedure; it is unbecomingly mean.

And it’s compounded by yet another error in the second and third sentences—placing the burden on the respondents (the plaintiffs) to show that the new passport policy is motivated by animus against transgender or nonbinary individuals, and that it violates the APA. It’s the Trump administration that’s seeking emergency relief; the burden is, or at least should be, on it to explain why the lower courts were wrong on these fronts—including by explaining what possible reason it could have for the policy other than the transparent animus reflected in President Trump’s executive order.

Again, as with the underlying irreparable harm finding, these moves were also critical to the case—because one could believe that the government is harmed and still think that the harms in the other direction are sufficiently serious to justify leaving the district court’s injunction in place. But for the Supreme Court and emergency applications from the Trump administration, the rules are just … different.

***

Justice Jackson, yet again, pointed out most of these shortcomings in her dissenting opinion—which was, yet again, joined in full by both Justices Sotomayor and Kagan. Jackson’s 12-page dissent is worth reading in full, but it will suffice for present purposes to quote its opening and closing lines. Here’s the opening:

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.

And here’s the closing:

The documented real-world harms to these plaintiffs obviously outweigh the Government’s unexplained (and inexplicable) interest in immediate implementation of the Passport Policy. That incongruity is where equity comes in. Because granting the stay application will be “of little advantage” to the Government, Di Giovanni, 296 U. S., at 71, while needlessly and significantly burdening the plaintiffs, equity cannot justify the Court’s intervention. But, today, the Court refuses to answer equity’s call. In my view, the Court’s failure to acknowledge the basic norms of equity jurisdiction is more than merely regrettable. It is an abdication of the Court’s duty to ensure that equitable standards apply equally to all litigants—to transgender people and the Government alike.

Once again, Justice Jackson is exactly right. Once again, the majority offers no response, let alone a remotely satisfactory one. And once again, both Justices Sotomayor and Kagan joined Justice Jackson in full—providing yet further evidence that media reports of deep disagreements among the three Democratic appointees may be … greatly exaggerated.

Indeed, the fact that Justices Sotomayor and Kagan signed on to everything Justice Jackson wrote in Orr is a message that shouldn’t be lost on Justice Jackson’s intended audience—which, it is increasingly clear, is not the justices in the majority, but the rest of us.

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We’ll be back Monday with our regular coverage of the Supreme Court. Usually, I’d include an “(if not sooner)” parenthetical in that sentence, but I’m going to tempt fate and say four posts in a week is enough.

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Have a great weekend, all. And, as ever, stay safe out there.

1. The seventh plaintiff currently has a passport reflecting his gender identity, which is not set to expire until 2028. Thus, the district court held that application of the new policy to him would not cause immediate, irreparable harm—and so he was not entitled to preliminary relief.

2. Among other things, as Justice Kagan has pointed out, when a statute is enjoined, it really can be said that the federal government, as such, has been harmed. But when it’s an executive branch policy, especially one claimed to be inconsistent with statutes, to treat the executive branch as the “government” is to write Congress out of the equation altogether.