No. 25A_______
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`In the Supreme Court of the United States
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`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., APPLICANTS
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`v.
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`ASHTON ORR, ET AL.
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`APPLICATION FOR A STAY OF THE INJUNCTION
`ISSUED BY THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`───────────
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`D. JOHN SAUER
` Solicitor General
` Counsel of Record
` Department of Justice
` Washington, D.C. 20530-0001
` SupremeCtBriefs@usdoj.gov
` (202) 514-2217
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`(i)
`TABLE OF CONTENTS
`Statement ....................................................................................................................... 4
`A. Legal background ..................................................................................... 4
`B. Procedural history .................................................................................... 6
`Argument ..................................................................................................................... 13
`I. The government is likely to succeed on the merits .......................................... 13
`A. The challenged policy is consistent with equal protection ................... 13
`1. The challenged policy warrants only rational-basis review ...... 15
`a. The challenged policy does not discriminate based
`on sex ................................................................................. 15
`b. The challenged policy does not discriminate based
`on trans-identifying status ............................................... 18
`2. The challenged policy satisfies rational-basis review ................ 20
`B. Respondents’ arbitrary-or-capricious claim fails .................................. 26
`1. The challenged policy is not reviewable under the APA ............ 26
`2. In any event, respondents’ arbitrary-or-capricious claim
`fails on the merits ........................................................................ 28
`C. There is no Paperwork Reduction Act violation that could
`support the injunction ........................................................................... 30
`II. The other factors support staying the district court’s injunction ................... 32
`A. The issues raised by the district court’s injunction warrant this
`Court’s review ......................................................................................... 32
`B. The district court’s injunction causes irreparable harm to the
`government and to the public ................................................................ 33
`C. The balance of equities favors staying the district court’s
`injunction ................................................................................................ 34
`Conclusion .................................................................................................................... 38
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`ii
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`PARTIES TO THE PROCEEDING
`Applicants (defendants-appellants below) are Donald J. Trump, President of
`the United States ; the United States of America; Marco Rubio, Secretary of State;
`and the U.S. Department of State.
`Respondents (plaintiffs -appellees below) are Ashton Orr, Zaya Perysian,
`Sawyer Soe, Chastain Anderson, Drew Hall, Bella Boe, Reid Solomon -Lane, Viktor
`Agatha, David Doe, AC Goldberg, Ray Gorlin, and Chelle LeBlanc, on behalf of them-
`selves and others similarly situated.
`RELATED PROCEEDINGS
`United States District Court (D. Mass):
`Orr v. Trump, No. 25-cv-10313 (July 11, 2025)
`United States Court of Appeals (1st Cir.):
`Orr v. Trump, No. 25-1579 (Sept. 4, 2025)
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`(1)
`In the Supreme Court of the United States
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`───────────
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`No. 25A_______
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`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., APPLICANTS
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`v.
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`ASHTON ORR, ET AL.
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`───────────
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`APPLICATION FOR A STAY OF THE INJUNCTION
`ISSUED BY THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`───────────
`Pursuant to Rule 23 of the Rules of this Court and the All Writs Act, 28 U.S.C.
`1651, the Solicitor General —on behalf of applicants Donald J. Trump, President of
`the United States, et al.—respectfully files this application for a stay of the injunction
`issued by the United States District Court for the District of Massachusetts (App.,
`infra, 80a-114a) pending the consideration and disposition of the government’s ap-
`peal to the United States Court of Appeals for the First Circuit and pending any fur-
`ther review in this Court.
`The district court issued an injunction, on behalf of a nationwide class, requir-
`ing the State Department to allow passport applicants to self-select the sex designa-
`tion on their passports—either “M” or “F” without regard to their biology, or even “X”
`if they would prefer that instead. That injunction has no basis in law or logic. Private
`citizens cannot force the government to use inaccurate sex designations on identifi-
`cation documents that fail to reflect the person’s biological sex —especially not on
`identification documents that are government property and an exercise of the Presi-
`dent’s constitutional and statutory power to communicate with foreign governments.
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`That injunction injures the United States by compelling it to speak to foreign govern-
`ments in contravention of both the President’s foreign policy and scientific reality. As
`the lower courts have declined to stay this baseless injunction pending appeal, this
`Court’s intervention is warranted.
`Since the 1970s, the federal government has issued U.S. passports bearing the
`passport holder’s sex. For much of that history, the passport holder’s sex has been
`designated with one of two markers: “M” for male or “F” for female. App., infra, 7a.
`After the last Administration allowed passport applicants to self -select their sex as
`“M” or “F” or even “X” as their sex marker, President Trump issued an Executive
`Order that defined “ ‘[s]ex’ ” as “an individual’s immutable biological classification as
`either male or female,” id. at 1a, and required the Department of State to issue pass-
`ports that “accurately reflect the holder’s sex” based on that definition, id. at 2a.
`That policy is eminently lawful. The Constitution does not prohibit the gov-
`ernment from defining sex in terms of an individual’s biological classification. And
`the Executive Order explained that such an immutable trait provides a better “basis
`for identification” than “ ‘[g]ender identity,’ ” which “reflects a fully internal and sub-
`jective sense of self,” “exist[s] on an infinite continuum,” and may shift over time.
`App., infra, 2a; see id. at 1a. The district court nevertheless enjoined the President’s
`passport policy on a classwide basis, on the ground that respondents—12 individual
`plaintiffs and the certified classes that they represent—are likely to succeed on their
`claims that the policy violates equal protection, the Administrative Procedure Act
`(APA), and the Paperwork Reduction Act (PRA). App., infra, 30a-60a, 100a-101a.
`That ruling is untenable.
`With respect to equal protection, the district court concluded that the challenged
`policy discriminates based on sex. Respondents, however, do not challenge the inclu-
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`sion of a sex designation on passports. Instead, they challenge the government’s def-
`inition of sex—arguing that the sex designation should reflect a person’s self-assessed
`gender identity, rather than a person’s immutable biological characteristics. But as
`this Court reaffirmed in United States v. Skrmetti, 145 S. Ct. 1816 (2025), a policy does
`not discriminate based on sex if it applies equally to each sex without treating any
`member of one sex worse than a similarly situated member of the other. And here, the
`challenged policy applies equally, regardless of sex —defining sex for everyone in
`terms of biology rather than self-identification. Indeed, just as it would not be discrim-
`ination based on national origin to define a person’s national origin as the person’s
`birth country rather than the country with which the person self -identifies, so too it
`is not discrimination based on sex to define a person’s sex as the person’s immutable
`biological classification rather than the sex with which the person self-identifies.
`The district court’s conclusion that the challenged policy was motivated by an-
`imus toward trans-identifying individuals fares no better. It was entirely rational for
`the President to reject “gender identity” as a “basis for identification” in favor of a
`“biological” definition of sex —one grounded in facts that are “immutable.” App.,
`infra, 1a-2a. And because the challenged policy has “a legitimate grounding,” “quite
`apart from any [animus],” the Court “must accept that independent justification.”
`Trump v. Hawaii, 585 U.S. 667, 706 (2018).
`Respondents’ remaining claims also fail. Presidential action is not reviewable
`under the APA, and the Executive Order dictated the challenged policy here, pursu-
`ant to the Passport Act, 2 2 U.S.C. 211a, which authorizes the President himself to
`determine the contents of passports. Accordingly, the State Department’s ministerial
`actions implementing the President’s direction are neither subject to APA review nor
`arbitrary or capricious, as the Department had no choice but to comply with the Pres-
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`ident’s Order. As for respondents’ PRA claim, the problem that th e district court
`identified—namely, that the Director of the Office of Management and Budget (OMB)
`had not approved the Department’s use of forms that offer a sex marker of only “M”
`or “F”—is moot, because the Director has since approved the use of such forms. The
`asserted PRA violation therefore cannot support the injunction that the court granted.
`Finally, the remaining factors strongly support staying the district court’s
`classwide injunction. U.S. passports are official government documents, addressed
`to foreign nations. The Executive Order in this case is an exercise of power conferred
`on the President both by the Constitution and by statute to determine the contents
`of U.S. passports. Yet the court’s injunction countermands that Order —and in so
`doing, interferes with the President’s foreign-policy prerogatives. Moreover, the rec-
`ord does not e stablish that the members of the nationwide class covered by the in-
`junction would face a risk of irreparable harm if the injunction were stayed. That is
`especially so because membership in that class is not conditioned on having either
`concrete plans to travel internationally or a diagnosis of gender dysphoria. The bal-
`ance of equities therefore decisively favors a stay of the court’s classwide injunction.
`STATEMENT
`A. Legal Background
`1. A U.S. passport is a “political document” issued by the federal govern-
`ment and “addressed to foreign powers.” Haig v. Agee, 453 U.S. 280, 292 (1981) (quot-
`ing Urtetiqui v. D’Arcy, 34 U.S. (9 Pet.) 692, 698 (1835)). Its purpose is to identify its
`bearer as an American citizen and to “request[ ] foreign powers to allow the bearer to
`enter and to pass freely and safely.” United States v. Laub, 385 U.S. 475, 481 (1967).
`A passport is thus an official communication “by which the Government vouches for
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`the bearer and for his conduct.” Agee, 453 U.S. at 293. And “[a] passport at all times
`remains the property of the United States.” 22 C.F.R. 51.7(a).
`Since “the earliest days of the Republic,” the President ’s Article II authority
`over “national security” and “foreign policy” has been understood to encompass the
`power to issue passports. Agee, 453 U.S. at 293. The first Passport Act, enacted in
`1856, “ ‘confirmed’ ” that power in “broad and permissive language.” Id. at 294 (cita-
`tion omitted); see Act of Aug. 18, 1856, ch. 127, § 23, 11 Stat. 60. Today, that language
`is codified at 22 U.S.C. 211a, which provides: “The Secretary of State may grant and
`issue passports * * * under such rules as the President shall designate and prescribe
`for and on behalf of the United States.” 22 U.S.C. 211a ; see Act of July 3, 1926,
`ch. 772, § 1, 44 Stat. 887.
`2. In 1976, the U.S. Department of State (Department) introduced “sex” as
`a required marker on U.S. passports. App., infra, 7a. Four years later, the Interna-
`tional Civil Aviation Organization—a specialized agency of the United Nations that
`develops standards for the civil aviation sector—added “sex” to its uniform specifica-
`tions for travel documents . Id. at 6a-7a. Since then, most countries have included
`“sex” as a marker on their passports. Id. at 7a.
`From 1977 to 2021, the Department issued U.S. passports with one of two sex
`markers: “M” for male or “F” for female. App., infra, 7a. In June 2021, the Biden
`Administration adopted a new passport policy (the 2021 policy). Id. at 8a. The 2021
`policy “permit[ted] passport applicants to self-select their sex marker” based on their
`“gender identity.” Ibid. The 2021 policy also “add[ed] a third option of ‘X’  ” as a
`marker for applicants who do not self-identify as male or female. Ibid.
`3. On Inauguration Day, President Trump issued an Executive Order de-
`claring it “the policy of the United States to recognize two sexes, male and female.”
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`App., infra, 1a; see Exec. Order No. 14,168, Defending Women from Gender Ideology
`Extremism and Restoring Biological Truth to the Federal Government (Jan. 20, 2025),
`90 Fed. Reg. 8615 (Jan. 30, 2025) (Executive Order or Order). The Order defined
`“ ‘[s]ex’ ” as “an individual’s immutable biological classification as either male or fe-
`male.” App., infra, 1a. And the Order distinguished the “immutable biological reality
`of sex” from “the concept of ‘gender identity,’ ” which the Order described as reflecting
`“an internal, fluid, and subjective sense of self unmoored from biological facts.” Ibid.
`The Executive Order explained that because “ ‘[g]ender identity’ reflects a fully
`internal and subjective sense of self, disconnected from biological reality and sex and
`existing on an infinite continuum,” it “does not provide a meaningful basis for identi-
`fication.” App., infra, 2a. The Order therefore directed the Secretary of State (Secre-
`tary) to “implement changes to require that government -issued identification docu-
`ments, including passports, * * * accurately reflect the holder’s sex, as defined by”
`the Order. Ibid. The Order further instructed that “[a]gency forms that require an
`individual’s sex shall list male or female, and shall not request gender identity.” Ibid.
`Soon after , the Department implemented the President’s directive to issue
`passports with a sex marker of either “M” or “F” reflecting the holder’s “biological
`sex.” App., infra, 75a; see id. at 11a-13a. The Department thus ceased issuing pass-
`ports with an “X” marker. Id. at 11a. It replaced passport application forms that
`offered an “X” marker with earlier versions of the forms that offered a marker of only
`“M” or “F.” Id. at 12a. And it adopted procedures for adjudicating a passport appli-
`cant’s sex using birth certificates. Ibid.
`B. Procedural History
`1. In February 2025, seven trans -identifying or non -binary individuals
`filed a putative class action in the District of Massachusetts against the President,
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`the Secretary, the Department, and the United States . Compl. ¶¶ 16-27. Plaintiffs
`did not challenge the inclusion of a sex designation on U.S. passports. Instead, plain-
`tiffs argued that U.S. passports must include a sex designation that “reflect[s] the sex
`[people] live as and express, rather than the sex they were assigned at birth.” Id.
`¶ 1. Plaintiffs thus challenged what they described as the Trump Administration’s
`“reversal” of the 2021 policy of “permitt[ing] all people * * * to obtain passports with
`sex designations that reflected the sex they live as.” Ibid.
`Plaintiffs claimed that the policy change violated the equal-protection compo-
`nent of the Fifth Amendment’s Due Process Clause. Compl. ¶¶ 193-211. Plaintiffs
`also asserted an APA claim challenging “[a]gency actions taken under the Executive
`Order” as “arbitrary, capricious, and an abuse of discretion ,” id. ¶¶ 243-244, as well
`as an APA claim challenging the change in passport application forms as contrary to
`the PRA, id. ¶¶ 247-251. Plaintiffs moved for a preliminary injunction requiring the
`Secretary and the Department to reinstate the 2021 policy and thus “allow[ ]
`[p]laintiffs to self-attest to what their sex is,” including by choosing “an ‘X’ sex desig-
`nation.” D. Ct. Doc. 29, at 2 (Feb. 18, 2025).
`2. On April 18, the district court granted plaintiffs’ motion in part. App.,
`infra, 15a-73a. The court understood the Department to have “compl[ied] with the
`Executive Order’s directive” by “ma[king] two substantive changes to its prior pass-
`port policy”:
`First, [the Department] withdrew the option for Americans to obtain a passport
`reflective of either their gender identity or their sex assigned at birth, and in-
`stead required all passports to reflect only applicants’ sex assigned at birth.
`Second, it removed the option for inte rsex, non -binary, and gender non -
`conforming applicants to select “X” as the sex marker on their passports.
`Id. at 16a. The court “refer[red] to these changes as the ‘Passport Policy.’ ” Ibid.
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`The district court then held that plaintiffs were “likely to succeed on the merits
`of their equal protection claim.” App., infra, 17a; see id. at 30a-46a. The court concluded
`that “[t]he Executive Order and the Passport Policy on their face classif y passport
`applicants on the basis of sex” and failed intermediate scrutiny. Id. at 17a; see id. at
`31a-39a. The court further concluded that the Executive Order and the Passport Policy
`were motivated by “animus” toward trans -identifying individuals and therefore vio-
`lated equal protection even under rational-basis review. Id. at 41a; see id. at 40a-46a.
`The district court also concluded that plaintiffs were likely to succeed on their
`APA claims. App., infra, 47a-60a. The court acknowledged that “[p]residential actions,
`like executive orders, are not * * * subject to APA review,” id. at 48a; that the Pass-
`port Act requires the Secretary to comply with “such rules as the President shall des-
`ignate and prescribe,” id. at 49a (quoting 22 U.S.C. 211a); and that the Secretary
`“adopted the Passport Policy to comply with the directive set forth in the Executive
`Order,” id. at 34a. The court nevertheless concluded that the Passport Policy was
`subject to APA review. Id. at 48a-51a. The court then held that plaintiffs were “likely
`to succeed on their claim that the Passport Policy is arbitrary and capricious,” id. at
`17a, because the Secretary and the Department “failed to offer a reasoned explanation
`for” the policy beyond pointing to the Executive Order, id. at 55a; see id. at 55a-57a.
`The district court further held that plaintiffs were likely to succeed on their claim
`that the Department’s use of passport application forms that offered a sex marker of
`only “M” or “F” had not complied with “the procedures required by the [PRA].” App.,
`infra, 17a; see id. at 58a-60a. The court stated that, “although the prior passport forms
`were promulgated in accordance with the PRA’s notice and comment requirements, the
`[Secretary and the Department] were nevertheless required to obtain the [OMB] Direc-
`tor’s approval before they began using those forms again in January 2025.” Id. at 60a.
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`9
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`After considering the likelihood of irreparable harm and the balance of the eq-
`uities, the district court concluded that six of the seven plaintiffs were entitled to a
`preliminary injunction. App., infra, 60a-65a. The court determined, however, that the
`seventh plaintiff, Reid Solomon-Lane, was not “likely to suffer irreparable harm ab-
`sent a preliminary injunction because he currently possesses a valid passport bearing
`a sex marker that corresponds to his gender identity and expression, and his passport
`remains valid until 2028.” Id. at 72a; see id. at 64a. The court therefore entered a
`preliminary injunction requiring the government “to process and issue passports” to
`the other six plaintiffs “consistent with” the 2021 policy and to “allow[ ] [them] to self-
`attest to their sex,” including by selecting “an ‘X’ sex designation.” Id. at 72a.
`3. Plaintiffs then amended their complaint , adding five named plaintiffs.
`Am. Compl. ¶¶ 23-27. Plaintiffs moved for class certification, emphasizing that the
`government had “enacted a policy imposing a definition of ‘sex’ that affects every per-
`son in the country in the same way: Americans can only obtain passports that match
`their sex as this Administration defines it.” D. Ct. Doc. 78, at 6 (Apr. 30, 2025). Plain-
`tiffs also moved to extend the preliminary injunction to certain members of the pro-
`posed classes. D. Ct. Doc. 79, at 1 (Apr. 30, 2025).
`On June 17, the district court agreed to certify two classes under Federal Rule
`of Civil Procedure 23(b)(2):
`1. A class of all people (1) whose gender identity is different from the sex as-
`signed to them under the Passport Policy and/or who have been diagnosed with
`gender dysphoria, and (2) who have applied, or who, but for the Passport Pol-
`icy, would apply, for a U.S. passport issued with an “M” or “F” sex designation
`that is different from the sex assigned to that individual under the Passport
`Policy (“M/F Designation Class”);
`2. A class of all people whose gender identity is different from the sex assigned
`to them under the Passport Policy and who have applied, or who, but for the
`Passport Policy, would apply, for a U.S. passport with an “X” designation (“X
`Designation Class”).
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`App., infra, 111a; see id. at 88a-99a. The court explained that “enforcement of the
`Passport Policy * * * uniformly impacts members of [those classes] by preventing
`them from obtaining passports with a sex marker consistent with their gender iden-
`tity.” Id. at 92a-93a.*
`The district court also agreed to extend the preliminary injunction to members
`of the certified classes who:
`(a) do not have a currently valid passport, (b) need to renew their current pass-
`port because it expires within one year, (c) need to make changes to their pass-
`port to have the sex designation on it align with their gender identity or to
`reflect a name change, or (d) need to apply for another passport because their
`passport was lost, stolen, or damaged.
`App., infra, 112a-113a. The court referred to that subset of the certified classes as the
`“PI Class.” Id. at 99a. The court concluded that members of the PI Class faced the
`same risk of irreparable harm as the six original named plaintiffs. Id. at 106a. The
`court also concluded that the burden imposed by classwide relief on the government
`did “not outweigh the equities favoring the PI Class.” Id. at 107a. The court therefore
`entered a preliminary injunction requiring the government “to process and issue pass-
`ports to members of the PI Class consistent with” the 2021 policy and “to permit mem-
`bers of the PI Class to self -select a sex designation—‘M,’ ‘F,’ or ‘X’—that is different
`from the sex assigned to those individuals under the Passport Policy.” Id. at 113a.
`
`* The district court excluded from the certified classes the plaintiffs in Schlac-
`ter v. U.S. Department of State, No. 25-cv-1344 (D. Md.), another suit challenging the
`Executive Order and the State Department’s implementation of it. App., infra, 111a.
`The plaintiffs in Schlacter are seven individuals who have moved for a preliminary
`injunction requiring the government “to issue passports to them with sex designa-
`tions that match their gender identity, including the issuance of passports bearing an
`‘X’ designation.” D. Ct. Doc. 31, at 1 (May 14, 2025), Schlacter, supra (No. 25-cv-1344).
`On September 9, the district court in Schlacter granted the motion as to six of the seven
`plaintiffs and entered a preliminary injunction requiring the government to “permit
`(a) changes to the sex designation on [their ] passports, including allowing [them] to
`self-attest to their sex, and (b) an ‘X’ designation on any passport where that is re-
`quested by [them].” D. Ct. Doc. 66, at 2 (Sept. 9, 2025), Schlacter, supra (No. 25-cv-1344).
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`4. On June 18, t he day after the district court granted the classwide in-
`junction, this Court issued its decision in United States v. Skrmetti, 145 S. Ct. 1816
`(2025), which held that a prohibition on the prescription of puberty blockers or hor-
`mones to enable a minor to live as a purported identity inconsistent with the minor’s
`sex did not discriminate based on sex. Id. at 1829-1835. In a motion to dissolve the
`district court’s classwide injunction, t he government argued that, under Skrmetti, a
`prohibition on the self-selection of a purported identity inconsistent with a passport
`holder’s sex likewise does not discriminate based on sex. D. Ct. Doc. 127, at 10 -14
`(July 9, 2025). In addition, the government observed that “a key premise of the [c]ourt’s
`prior APA ruling —that forms used by the Department to implement the Executive
`Order were not approved by the Director of [OMB] as required by the PRA—no longer
`exists.” Id. at 16. The government noted that the Director had approved the forms
`on June 25, thereby “complet[ing] the PRA process.” Id. at 17; see App., infra, 133a.
`On July 11, the district court denied the government’s motion to dissolve the
`classwide injunction. App., infra, 142a-143a. The court stated that even if Skrmetti
`had undermined its conclusion that “the Executive Order and Passport Policy must be
`reviewed under intermediate scrutiny,” and even if the government had “cured its fail-
`ure to comply with the procedures required by the PRA,” the court’s “prior conclusions”
`as to respondents’ likelihood of success on their “animus-based equal protection claim”
`and their “arbitrary-and-capricious claim under the APA” “would remain unchanged.”
`Id. at 143a. The court therefore declined to dissolve its classwide injunction and de-
`clined to stay that injunction pending appeal. Ibid. (citing Fed. R. App. P. 8(a)(1)(C)).
`5. The government appealed both the district court’s original injunction
`and its classwide injunction. See D. Ct. Doc. 111 (June 13, 2025); D. Ct. Doc. 131
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`(July 11, 2025). On July 18, the government moved the court of appeals for a stay of
`the classwide injunction pending appeal. Gov’t C.A. Stay Mot. 27 (July 18, 2025).
`Two months later, on September 4, the court of appeals denied the govern-
`ment’s motion for a stay. App., infra, 144a-147a. The court took the view that the
`government had “not made a strong showing that it is likely to succeed on the merits
`of its appeal” of respondents’ APA claim that “the Department’s implementation of
`its Passport Policy was arbitrary and capricious.” Id. at 145a. Without resolving “the
`ultimate merits” of whether the Passport Policy is subject to APA review, the court
`stated that it could not “conclude on the present submissions that the government
`ha[d] made a strong showing that the Passport Policy is u nreviewable under the
`APA.” Ibid. The court further concluded that the government had not “demon-
`strate[d] a strong likelihood of success” on its argument that “the Passport Policy, if
`reviewable, passes muster under the APA.” Ibid.
`On the view that respondents’ arbitrary-or-capricious claim was sufficient to
`“support the preliminary relief that the district court granted,” the court of ap peals
`found no need to go “further in considering the likelihood of success on the merits.”
`App., infra, 146a. The court of appeals expressed the view, however, that the govern-
`ment’s stay motion had not “engage[d] meaningfully” with the district court’s conclu-
`sion that respondents were likely to succeed on their “Equal Protection Clause claim
`premised on ‘unconstitutional animus toward transgender Americans.’  ” Ibid. The
`court of appeals then addressed the remaining stay factors and concluded that “the
`government ‘ha[d] not sufficiently demonstrated that the balance of harms and equi-
`ties’ favors upending the status quo and subjecting [respondents] to the immediate
`harms identified by the district court.” Id. at 147a (citation omitted).
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`13
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`ARGUMENT
`Under Rule 23 of the Rules of this Court and the All Writs Act, 28 U.S.C. 1651,
`to obtain a stay of a preliminary injunction pending review in the court of appeals
`and in this Court , an applicant must show a likelihood of success on the merits, a
`reasonable probability of obtaining certiorari, and a likelihood of irreparable harm.
`See Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam). In “close cases,”
`the Court will balance the equities and weigh the relative harms. Ibid. All of those
`factors decisively favor a stay of the district court’s classwide injunction in this case.
`I. THE GOVERNMENT IS LIKELY TO SUCCEED ON THE MERITS
`In issuing its classwide preliminary injunction, the district court concluded
`that respondents were likely to succeed on their claims (1) that the Passport Policy
`violates equal protection because it discriminates based on sex and is motivated by
`animus; (2) that the Passport Policy violates the APA because it is arbitrary and ca-
`pricious; and (3) that the Department’s use of passport application forms that offer a
`sex marker of only “M” or “F” violates the PRA because the forms lacked the OMB
`Director’s approval. App., infra, 30a-60a, 100a-101a. After the district court entered
`the classwide injunction, however, this Court issued its decision in United States v.
`Skrmetti, 145 S. Ct. 1816 (2025) , making clear that respondents’ sex-discrimination
`claim lacks merit , and t he OMB Director approved use of the forms, rendering re-
`spondents’ PRA claim moot. That leaves respondents’ animus-based and arbitrary-
`or-capricious challenges, which also fail.
`A. The Challenged Policy Is Consistent With Equal Protection
`For decades, U.S. passports have included a sex designation —i.e., a designa-
`tion identifying the sex of the passport’s holder. App., infra, 7a. Respondents do not
`challenge the inclusion of a sex designation on U.S. passports. Nor could they. Equal
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`protection does not demand that a policy “necessarily apply equally to all persons or
`require things which are different in fact . . . to be treated in law as though they
`were the same.” Michael M. v. Superior Court, 450 U.S. 464, 469 (1981) (plurality
`opinion) (citation and quotation marks omitted); see Nguyen v. INS, 533 U.S. 53 ,
`63-64 (2001) (explaining that equal protection is not violated by classifications that
`treat men and women differently where the two sexes “are not similarly situated,”
`such as measures that “take[  ] into account a biological difference”). And even re-
`spondents accept that there are “differen[ces] in fact” that justify distinguishing peo-
`ple based on sex on U.S. passports. Michael M., 450 U.S. at 469 (plurality opinion).
`After all, respondents sought—and the district court granted—a classwide injunction
`that requires the government to continue issuing passports with a “sex designation.”
`App., infra, 113a.
`What respondents challenge is not the inclusion of a sex designation on U.S.
`passports, but how the government determines a person’s sex for purposes of that
`designation. The 2021 policy determined a person’s sex according to that person’s
`“gender identity.” App., infra, 8a. The 2021 policy thus “permit ted all people * * *
`to obtain passports with sex designations that reflected” their purported identity,
`Compl. ¶ 2; Am. Compl. ¶ 2, whether “M,” “F,” or “X,” App., infra, 8a. In contrast, the
`Executive Order determines a person’s sex according to that person’s “immutable bi-
`ological” characteristics. Id. at 1a. The Order thus prohi bits the government from
`allowing anyone to self-select a sex marker based on “gender identity.” Id. at 2a. It
`is that policy against self-selection that respondents challenge here. According to
`respondents, the sex designation on U.S. passports should “reflect[  ] the sex [people]
`live as and express, rather than the sex they were assigned at birth.” Compl. ¶ 2;
`Am. Compl. ¶ 2.
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`The question is whether the Constitution requires the government to adopt
`respondents’ preferred definition of sex. It d