No. 25A319
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`In the Supreme Court of the United States
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`D
`ONALD 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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`REPLY IN SUPPORT OF APPLICATION FOR STAY
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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
`I. The government is likely to succeed on the merits ............................................ 3
`A. The challenged policy comports with equal-protection principles ......... 3
`B. Respondents’ arbitrary-or-capricious claim fails .................................... 8
`II. The other factors support granting a stay ....................................................... 12
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`(1)
`In the Supreme Court of the United States
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`No. 25A319
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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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`REPLY IN SUPPORT OF APPLICATION FOR STAY
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`───────────
`The President issued an Executive Order requiring all agencies to revert to the
`longstanding, scientifically founded definition of “sex” to mean one’s immutable, bio-
`logical sex: male or female. That Execut ive Order forecloses agencies from instead
`relying on “self-assessed gender identity.” Appl. App. 1a. The Order thus required
`the State Department to resume using “M” or “F” designations on passports that re-
`flect holders’ biological sex, as essentially all passports had done for 45 years until
`the prior Administration let anyone self-selec t “M,” “F,” or “X.” That presidential
`policy choice for passports stands squarely within the President’s powers. Passports
`are official government documents that communicate with foreign sovereigns; their
`contents thus implicate the President’s broad foreign-affairs powers under Article II.
`Further, Congress in the Passport Act expressly delegated to the President control
`over the contents of passports . The President’s choice to revert to prior policy and
`rely on biological sex—a choice that bound the State Department—should be the last
`place for novel equal-protection claims or Administrative Procedure Act objections.
`The district court nonetheless enjoined the President’s policy and compelled
`the State Department to allow any passport applicant in America to attest to class
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`membership and self-select their own sex designation on a passport using “M,” “F,”
`or “X.” The court thus dictated foreign-affairs communications reserved to the Pres-
`ident and upended a national policy based on precedent-defying equal-protection and
`Administrative Procedure Act (APA) object ions, as well as a Paperwork Reduction
`Act claim that respondents do not press here . Opp. 24 n.9. The First Circuit then
`refused to stay that injunction, relying solely on APA grounds after declining to pass
`upon how United States v. Skrmetti, 145 S. Ct. 1816 (2025), affects respondents’ claim
`that classifying by biological sex is sex discrimination. Appl. App. 145a-146a & n.1.
`Those rulings are untenable. As for equal protection, there is no sex discrimi-
`nation when the government relies on biological sex to make permissible sex classifi-
`cations (like M/F designations on passports) , just as there is no national-origin dis-
`crimination in requiring people to identify the country of their birth, not the country
`with which they self-identify. Appl. 15-18. Nor does embracing biological sex as bio-
`logical reality reflect unconstitutional animus. Appl. 21-25. And black-letter
`administrative-law principles foreclose APA review when the President makes the
`dispositive policy choices—here, to use biological sex in passport designations—and
`leaves the agency with no discretion to choose differently. Appl. 26-28.
`Now, respondents defend the merits largely by misconstruing the govern-
`ment’s arguments. The government is not invoking foreign affairs to “sweep[] aside
`statutory and constitutional constraints,” or defeat review, Opp. 13-14; rather, this
`Court’s precedents foreclose respondents’ equal-protection claims and confirm that
`APA review is unavailable. The government has never “all but admitted” an “intent
`to harm transgender people,” Opp. 3; it s policy applies even-handedly to all Ameri-
`cans and requires everyone’s passport identification to reflect biological sex, not self-
`selection. That reflects no animus whatsoever. Nor does this case require the Court
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`to hold that “agencies automatically meet the APA’s procedural requirements when
`they implement the President’s policy views,” contra Opp. 24. The government’s more
`limited point flows directly from Franklin v. Massachusetts, 505 U.S. 788 (1992): be-
`cause the President is not an “agency” for APA purposes, plaintiffs have no APA claim
`when they challenge a policy that the Pr esident dictated and that agencies cannot
`countermand. Finally, the government st renuously rejects the baseless suggestion
`that its policy aims to endanger trans-identifying people when they travel, Opp. 4.
`Those red herrings should not distract from what this case ultimately concerns:
`whether a single district court can comma ndeer U.S. foreign policy and allow every-
`one to self-select their preferred gender (o r “X”) on passports, no matter that the
`President—the officer charged with conducti ng foreign affairs and deciding the con-
`tents of passports—disagrees with asserting ge nder identity as if it were the United
`States’ official view. This Court should grant a stay of an injunction that inflicts
`irreparable harm based on clearly incorrect legal theories.
`I. THE GOVERNMENT IS LIKELY TO SUCCEED ON THE MERITS
`A. The Challenged Policy Comports With Equal-Protection Principles
`Similar to prior passport policies for some 45 years until 2021, the President’s
`policy requires passports to list the holders’ sex and prohibits self -selecting a sex of
`their choice or opting for “X.” That policy rests on common sense and tradition, not
`sex discrimination or animus, and “clearly meets th[e] standard” of deferential ra-
`tional-basis review applicable to policies th at do not discriminate based on suspect
`characteristics.1 See United States v. Skrmetti, 145 S. Ct. 1816, 1835 (2025); Appl.
`20-25. Indeed, “the law has long” employed objective, immutable biological sex to
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`1 Respondents (Opp. 26 n.10) abandon th e argument that trans-identifying
`status could be a suspect class and press sex-discrimination and animus arguments.
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`define sex designations across myriad cont exts, confirming the policy’s constitution-
`ality. Heller v. Doe, 509 U.S. 312, 326 (1993).
`1. No sex-based discrimination. The passport policy undisputedly prohib-
`its everyone from self-selecting a sex (M or F) or other marker (X) on their passports,
`and thus discriminates against no one. See Skrmetti, 145 S. Ct. at 1829-1835; Appl.
`15-18. Members of each sex—men and women—are equally required to identify their
`biological sex, not a self-selected identity. Though respondents devote much of their
`brief to claiming sex discrimination (Opp. 25-31), the district court and First Circuit
`rightly did not embrace that argument after Skrmetti. Appl. App. 143a, 146a n.1.
`Respondents (Opp. 25-26) misunderstand sex discrimination and thus wrongly
`invoke heightened scrutiny. They would treat any policy that requires people to in-
`dicate their “sex assigned at birth” as a suspect sex-based classification and per se
`sex stereotyping. But while th e challenged policy undisputedly classifies based on
`sex by including a sex designation on passports (as U.S. policy has done since 1976),
`respondents do not challenge the bare existenc e of sex designations. See Appl. 2-3.
`It is perfectly constitutional for classifi cations to treat men and women differently
`where the two sexes “are not similarly situated,” such as measures that “take[] into
`account a biological difference.” Nguyen v. INS, 533 U.S. 53, 63-64 (2001); see Mi-
`chael M. v. Superior Court, 450 U.S. 464, 469 (1981) (plurality opinion); Appl. 13-14.
`Respondents instead challenge how the sex designation is made (based on bio-
`logical sex) and seek to force the government to use their preferred definition of sex
`(i.e., self-identified M/F/X).
`2 But the definitional choice to rely on biological sex, not
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`2 Respondents’ assertion in this Court that they “do not challenge the govern-
`ment’s definition of sex,” Opp. 28, directly contradicts their arguments in the district
`court challenging the government’s “policy imposing a definition of ‘sex,’ ” based on
`“sex as this Administration defines it,” Appl. 9, 16 (quoting D. Ct. Doc. 78, at 6 (Apr.
`30, 2025)); see, e.g., D. Ct. Doc. 78, at 7, 12, 24 (similar).
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`self-identification, applies even-handedly to all passport applicants and thus does not
`discriminate based on sex. As Skrmetti confirms, a policy referencing sex does not
`“trigger heightened scrutiny” where, as here, it “does not prohibit conduct for one sex
`that it permits for the othe r.” 145 S. Ct. at 1831; see ibid. (under the challenged
`Tennessee law, “no minor may be administered puberty blockers or hormones to treat
`gender dysphoria, gender identity disorder, or gender incongruence; minors of any
`sex may be administered puberty blockers or hormones for other purposes”).
`Respondents (Opp. 27-28) would limit Skrmetti to the “medical” context. But
`Tennessee’s law banned medical treatments “inconsistent with [a person’s] sex,” 145
`S. Ct. at 1831 (citation omitted), just as the passport policy bans selecting a sex des-
`ignation inconsistent with a person’s sex, Appl. 11. Skrmetti also addressed and dis-
`tinguished the same inapt precedents that respondents cite (Opp. 26-27). See 145
`S. Ct. at 1828 (citing Sessions v. Morales-Santana, 582 U.S. 47 (2017)); id. at 1831
`(citing Loving v. Virginia, 388 U.S. 1 (1967)); id. at 1832 (citing J.E.B. v. Alabama,
`511 U.S. 127 (1994)). Skrmetti is fatal to respondents’ sex-discrimination claim.
`2. Rational basis. Because the policy does not discriminate based on sex or
`any other characteristic triggering height ened scrutiny, rational-basis review ap-
`plies, and the policy easily clears that low bar. Appl. 20-21. As the President’s Exec-
`utive Order explains, gender identity “does not provide a meanin gful basis for iden-
`tification” and so “cannot be recognized as a replacement for sex” on “passports” or
`otherwise. Appl. App. 2a. Relying on biological sex—which is immutable—as op-
`posed to self-identified sex (or X), which is an “internal, fluid, and subjective” de-
`scriptor, offers a more objective, reliable metric for the longstanding M/F portion of
`the passport. Id. at 1a. Contrary to respondents’ assertions (Opp. 30), the Executive
`Order not only expresses that rationale on its face, but the government also defended
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`the policy on that basis below. See, e.g., Appl. 23, 25 (citing Resp. App. 170a-171a).
`Respondents call it “wholly irrational” (Opp. 31) to designate sex based on any-
`thing other than unrestricted self-selection. If so, American passport policy was ap-
`parently unconstitutional for 45 years, and only briefly became constitutional during
`a portion of the last administration. Se e Appl. 5, 15 (explaining that 2021 was the
`first time that any administration allowed “all people” to self-select a sex marker of
`“M,” “F,” or “X” based on putative gender identity). Commonplace biological-sex-
`based distinctions in countless public settings would also apparently be unconstitu-
`tional. But “legislatures have many valid reasons to make policy in these areas, and
`so long as a statute is a rational means of pursuing a legitimate end,” equal protection
`“is satisfied.” Skrmetti, 145 S. Ct. at 1853 (Barrett, J., concurring).
`Nor can respondents seriously claim (Opp. 31) that the government’s interest
`in “accurate,” meaningful identification would be better served by an injunction re-
`quiring issuance of passports bearing any sex marker that applicants request—even
`“X,” if applicants do not wish to identify as one sex or the other. It is hard to imagine
`a system less conducive to accurate identifi cation than one in which anyone can re-
`fuse to identify his or her sex and withhold relevant identifying information for any
`reason, or can rely on a mutable sense of se lf-identification. Even the district court
`did not rely on the conclusory statement by plaintiffs’ expert below that gender iden-
`tity is the “most accurate and least problematic” means of identification, Opp. 31 (ci-
`tation omitted), which contravenes undisputed record evidence that the United
`States and other nations have for decades used biological sex designations “to enable
`travel documents to be used more effectively to identify the holder,” Appl. App. 7a.
`3. Animus. Respondents alternatively claim (Opp. 32-36) that the policy re-
`flects unconstitutional animus against trans-identifying people. The court of appeals
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`declined to adopt that argument, instead resting on a demonstrably incorrect forfei-
`ture argument that respondents do not defe nd. Appl. App. 146a; Appl. 24. This is
`not one of the “few occasions” justifying the extreme measure of “strik[ing] down a
`policy as illegitimate” on animus grounds. Trump v. Hawaii , 585 U.S. 667, 705
`(2018); see Appl. 21-25. This Court “will uphold [a] policy so long as it can reasonably
`be understood to result from a justification independent of unconstitutional grounds.”
`Hawaii, 585 U.S. at 705. Those grounds are abundant given the longstanding use of
`biological sex to designate one’s sex for identification purposes. Appl. 20-21.
`Respondents attempt at length to distinguish Hawaii and its “unusually def-
`erential standard,” Opp. 34, to no avail. Respondents try to cabin Hawaii as an “Es-
`tablishment Clause decision,” ibid.; a case about “the entry of noncitizens into the
`United States,” Opp. 35; a case that rested on the Court’s disinclination to probe “ex-
`trinsic statements,” ibid.; and a case where the challenged order rested on a “world-
`wide review process” and allowed for “significant exceptions,” ibid. (citation omitted).
`Hawaii itself instead broadly cast its standard as applying the same “rational basis
`review” that applies “across different contexts and constitutional claims,” 585 U.S. at
`703, 705 n.5, citing garden-variety equal-protection cases, see id. at 705-706. Hawaii
`applied extra deference on top of that in part because of the sensitive national-
`security context of restricting the entry of aliens who cannot be adequately vetted.
`See id. at 702-704. But passports likewise implicate “sensitive issues in American
`foreign policy.” See Zivotofsky v. Kerry, 576 U.S. 1, 5 (2015) (Zivotofsky II). This case
`thus equally warrants the “healthy deference” to policymakers that respondents con-
`cede applies to policies involving the President’s Commander-in-Chief responsibili-
`ties. Opp. 34 (citation omitted); see United States v. Shilling, 145 S. Ct. 2695 (2025).
`Regardless, respondents infer animus where none exists. They rely (Opp. 33)
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`on quotations from the Executive Order itself, but never explain why the Order’s dis-
`cussion of biological sex as scientifically accurate and criticisms of “gender ideology”
`as “internally inconsistent,” “subjective,” and damaging to women, Appl. App. 2a, rise
`to the level of reflecting a “bare . . . desire to harm” a particular group, Hawaii, 585
`U.S. at 705 (citation omitted). Those anim us accusations are particularly inexplica-
`ble given that this Court’s own precedents refer to “men” and “women” in the same
`biological-sex-based sense as the Executive Order, see Appl. 22. And contrary to the
`district court’s assertion that this Order “imposes a ‘broad and undifferentiated disa-
`bility’ on a discrete group of people,” Appl. App. 42a (cited at Opp. 33), respondents
`acknowledged below that it applies to “every person in the country in the same way.”
`Appl. 22 (quoting D. Ct. Doc. 78, at 6 (Apr . 30, 2025)). Respondents also quote from
`other Executive Orders, yet acknowledge that “this Court granted a stay of an injunc-
`tion of another of those Executive Orders.” Opp. 34 (citing Shilling, 145 S. Ct. 2695).
`That stay order necessarily deemed the government likely to succeed in rebuffing
`similar objections that the Executive Order there was unconstitutionally “motivated
`by animus,” Resp. in Opp. to Appl. for Stay at 20, Shilling, supra (No. 24A1030), and
`illustrates that none of the other executive actions that respondents identify reflects
`unconstitutional animus either, Appl. 23.
`B. Respondents’ Arbitrary-Or-Capricious Claim Fails
`1. Respondents’ arbitrary-or-capriciou s claim rests on a faulty premise:
`that courts, under the APA, can second-guess passport determinations that Article II
`and the Passport Act commit to the President’s exclusive discretion. Appl. 26-28; 22
`U.S. 211a. Respondents blow past the Pres ident’s constitutional and statutory dis-
`cretion to make such rules for passports as he sees fit, claiming that the APA allows
`arbitrary-or-capricious challenges to how the State Department implements the Pres-
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`ident’s policies. Opp. 17-22. But the Pres ident dictated the contours of the policy
`that respondents challenge; he, not the St ate Department, required rescinding the
`self-selected-sex system and removing the “X” marker. Appl. 26. Respondents thus
`challenge his policy decision—but the APA re nders such challenges unreviewable.
`Plaintiffs cannot bring APA claims directed against the President’s decisions
`because the President is not an “agency” under the APA, 5 U.S.C. 701(b)(1), and his
`policy decisions are “not subject to [the APA’s] requirements” and “not reviewable”
`under that Act, Franklin v. Massachusetts, 505 U.S. 788, 800-801 (1992); see Appl.
`26-28. Here, the Passport Ac t expressly vests “the President,” not the agency, with
`exclusive authority to “designate and prescribe” rules for granting and issuing pass-
`ports. 22 U.S.C. 211a. That delegation puts the President’s “authority * * * at its
`maximum,” encompassing “all that he possesses in his own right” based on his con-
`siderable Article II foreign-affairs authorities “plus all that Congress can delegate.”
`Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (Jackson, J., concurring);
`contra Opp. 24 (implausibly asserting that the Passport Act “merely confirms” the
`authority that the President “virtually always” enjoys over agencies).
`The President exercised that discretion to dictate the policy challenged here,
`declaring it “the policy of the United States to recognize two sexes, male and female”;
`instructing that “ ‘[g]ender identity’ ” “does not provide a meaningful basis for identi-
`fication”; providing that “[a]gency forms th at require an individual’s sex shall list
`male or female, and shall not request gender identity”; and directing the Secretary of
`State to “require that government-issued identification documents, including pass-
`ports * * * , accurately reflect the holder ’s sex, as defined under” the Executive Or-
`der. Appl. App. 1a-2a. This is a policy decision entrusted to the President’s discretion
`that is “not reviewable * * * under the APA.” Franklin, 505 U.S. at 801.
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`Respondents’ attempts to distinguish Franklin (Opp. 19) fail. It is irrelevant
`that the President was the last-in-time executive actor in Franklin but left nuts-and-
`bolts implementation to the State Departme nt here. The dispositive point is that
`presidential actions are unreviewable when the President’s “duties [we]re not merely
`ceremonial or ministerial,” Franklin, 505 U.S. at 800, but dictated the substance of
`the challenged agency action. Here, the President set the challenged policy to use
`biological sex; the State De partment cannot disagree. Franklin also forecloses re-
`spondents’ reliance (Opp. 18) on the “presumption” of reviewability. A separate opin-
`ion in Franklin made the same point, 505 U.S. at 816 (Stevens, J., concurring in part
`and concurring in the judgment), but the Court explained that courts “must presume”
`that the President’s actions are “not subject to [the APA’s] requirements,” id. at 801.
`Respondents point (Opp. 6, 21-22, 24 n.8) to the State Department’s determi-
`nation of ancillary details regarding implementation, such as defining “biological sex”
`to mean at “birth,” not “conception.” But they do not challenge that distinction; their
`challenge is that it is unconstitutional and arbitrary to use biological sex, not unre-
`stricted self-selection of “M,” “F,” or “X” designations. The “EO’s definition of sex,”
`not the State Department’s implementation of it, compels that choice. See Opp. 6 &
`n.2. Their complaint thus sought relief barring enforcement of “the Executive Order”
`as distinct from State Department action. Resp. App. 56a-57a. Reinforcing the point,
`the Executive Order plainly bars using any distinctions besides biological sex by em-
`phasizing the need to rely on “the ordinary and longstanding use and understanding
`of biological and scientific terms,” Appl. App. 1a; requiring “policies that recognize
`women are biologically female, and men are biologically male,” ibid.; and defining
`“sex” as “an individual’s immutable biological classification as either male or female,”
`ibid. Put simply, respondents challenge a “discretionary action the President himself
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`decided to take”—to rely on biological sex, not gender identity—an action that is un-
`reviewable under the APA. Franklin , 505 U.S. at 799. This case thus starkly con-
`trasts with cases respondents cite (Opp. 23) where statutes vested an agency with the
`relevant decisionmaking authority. Motor Vehicle Manufacturers Ass’n of United
`States, Inc. v. State Farm Mutual Automobile Insurance Co. , 463 U.S. 29, 33 (1983),
`involved a statute “direct[ing] the Secretary of Transportation” to take action, as did
`Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 405 (1971).
`Finally, respondents attack a strawman (Opp. 13-16) by insisting that cases
`involving passports do not give the Execut ive Branch a free pass to “sweep[] aside
`statutory and constitutional constraints.” No one contends otherwise. The govern-
`ment’s argument is not that the passport policy is unreviewable because it implicates
`foreign affairs, contra Opp. 14, but that the President’s role in dictating this particu-
`lar policy takes APA review off the table. That distinguishes this case from Zivotofsky
`v. Clinton, 566 U.S. 189 (2012) (Zivotofsky I), a political-question case, and Zivotofsky
`II, 576 U.S. 1, which invalidated a statute purporting to interfere with the President’s
`recognition decisions as expressed in passports, id. at 28-32. Likewise far afield is
`Kent v. Dulles, 357 U.S. 116 (1958), which held that the State Department lacked
`statutory authority to withhold passports based on citizens’ beliefs or associations.
`None of those cases involves the APA, and none resembles the key aspect of this case:
`the President, not the State Department, dictated the policy to use biological sex for
`passport designations, pursuant to a statut e conferring just that authority on “the
`President,” and the President’s actions are not subject to APA review.
`Regardless, even if reviewable under the APA, the challenged policy is plainly
`not “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C. 706(2)(A); see Appl.
`28-30. The State Department’s decision to follow “such rules as the President shall
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`designate and prescribe for and on behalf of the United States,” 22 U.S.C. 211a, was
`not just reasonable, but was expressly requ ired by statute. Respondents never ex-
`plain how the State Department could have followed the Passport Act’s instruction to
`follow the President’s rules (here, to use biological sex) without violating the statute
`and acting “not in accordance with law” under the APA, 5 U.S.C. 706(2)(A).
`II. THE OTHER FACTORS SUPPORT GRANTING A STAY
`A. If the First Circuit were to uphold the district court’s classwide injunc-
`tion, certiorari would plainly be warranted. Appl. 32-33. The injunction upends an
`Executive Order by ordering the State Department to allow anyone in the country to
`self-select their own sex designation on their passports, no matter that the Executive
`Branch wishes to define sex designations differently on its own property and in its
`own communications to foreign sovereigns. That affront to the separation of powers
`is particularly acute because the Constitution and Congress have entrusted passport
`decisions such as these to the Executive Branch, and such decisions raise diplomatic
`and foreign-policy concerns. This Court has repeatedly co nfirmed that such issues
`warrant review by granting interim relief in other cases involving discretion-laden
`national-security and foreign-affairs determinations. E.g., Noem v. National TPS
`All., No. 25A326, 2025 WL 2812732 (U.S. Oct. 3, 2025); Noem v. National TPS All. ,
`145 S. Ct. 2728 (2025); Department of State v. AIDS Vaccine Advoc. Coal. , No.
`25A269, 2025 WL 2740571 (U.S. Sept. 26, 2025); Shilling, 145 S. Ct. 2695.
`Respondents cast the unprecedented in junction below as “based on well-
`established legal principles,” Opp. 40—but well-established legal principles cut en-
`tirely the government’s way and repudiat e respondents’ equal-protection and APA
`theories. And respondents’ invocation (Opp. 2) of the Court’s pending merits cases in
`Little v. Hecox, No. 24-38, and West Virginia v. B.P.J., No. 24-43, is no basis to deny
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`this application. Those cases concern wh ether and how heightened scrutiny applies
`to claims that sex-separated athletics discriminate based on sex and trans-identifying
`status—not anything to do with the APA or animus-inflected rational-basis claims.
`See Br. for the United States as Amicus Curiae, Nos. 24-38 & 24-43 (Sept. 18, 2025).
`Especially since the stay rulings below addressed distinct claims and declined to rely
`on respondents’ sex-discrimination equal-protection claim, granting a stay here
`would not imply anything about the pending merits cases. See p. 4, supra.
`B. The equities strongly favor a stay. The district court’s nationwide-class
`injunction inflicts “irreparable injury” by preventing the Executive from “effectuating
`statutes enacted by representatives of its people” and by “improper[ly] intru[ding] on”
`two “coordinate branch[es] of the Government.” Trump v. CASA, Inc., 606 U.S. 831,
`859, 861 (2025) (first set of brackets in or iginal; citations and internal quotation
`marks omitted); see Appl. 33-34. Those inju ries are particularly acute because this
`injunction intrudes on the President’s “unique role in communicating with foreign
`governments,” especially given the “[u]nderstanding that passports will be construed
`as reflections of American policy.” Zivotofsky II, 576 U.S. at 6, 21. Indeed, the Pass-
`port Act’s express delegation of power directly to the President makes this an even
`stronger case for the President than Zivotofsky. Contra Opp. 15. Respondents profess
`to wonder how the President’s passport policy could “possibly” affect foreign relations,
`Opp. 2, 16, but self-evident foreign-policy consequences flow from forcing the Execu-
`tive to misrepresent biological facts to foreign states and to create the misimpression
`that the Executive endorses gender identity. Appl. 34.
`By contrast, no evidence suggests that a stay will irreparably harm respond-
`ents or class members in cognizable ways. Appl. 34-37. Again, passports are govern-
`ment documents that reflect government speech. Appl. 36. Respondents’ disagree-
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`ment with the content of the government’s speech cannot create a cognizable harm or
`irreparable injury, lest any disagreement over designations on any government doc-
`ument or in any government building generate standing and irreparable injury. Ibid.
`(citing, e.g., Diamond v. Charles, 476 U.S. 54, 62 (1986)). Respondents counter (Opp.
`38) that no one could ever challenge anything about their passports absent concrete
`travel plans under this view. But here, re spondents’ broadest theory of irreparable
`injury is in being unable to force government documents to conform to their own views
`of self; that particular injury is not cognizable. Cf. Bowen v. Roy, 476 U.S. 693 (1986).
`3
`Respondents focus on harms from “outing” individual plaintiffs and repeatedly
`mischaracterize the government as having stated below that “the ‘outing of
`transgender, intersex, and nonbinary individuals’ was ‘core to the Policy,’ ” Opp. 3, 34,
`37 (citations omitted). That out-of-context citation incorrectly makes it seem as
`though the policy’s purpose was to “out[]” people when the government’s actual point,
`in response to respondents’ arbitrary-or-capricious argument, was that the Executive
`Order did not fail to “account for” this “purported problem[]” or several others and
`indeed rested on the conclusion that “gender identity” cannot “ ‘provide a meaningful
`basis for identification.’ ” Resp. App. 171a (quoting Appl. App. 2a).
`Moreover, the district court’s injunction fatally fails to distinguish between
`those who might face harm because they have concrete plans to travel internationally
`using the passports at issue, and those class members who lack such plans. Cf. Clap-
`per v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013); City of Los Angeles v. Lyons, 461
`U.S. 95, 102 (1983). There is nothing incongruous about requiring plaintiffs to
`
`3 Respondents are incorrect (Opp. 39) that the government never argued below
`“that passports are government speech and property.” The government has made
`that argument at every stage, e.g., Resp. App. 160a, 326a, 352a-353a—hence, the dis-
`trict court acknowledged that this case will require deciding “whether passport sex
`designations are personal or government speech,” Appl. App. 90a.
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`15
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`“ma[ke] plans” to travel before they ma y obtain injunctive relief (Opp. 38); this
`Court’s precedents demand such “concrete plans” to show Article III standing (let
`alone irreparable harm). Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992).
`Finally, respondents cannot claim the mant le of the “status quo.” Opp. 36.
`Contrary to respondents’ selective historical account, the 2021 self-selection policy
`that the injunction resurrects was a sharp break from past practice. The government
`had never before allowed unrestricted self-s election and never allowed “X” markers.
`Appl. App. 15a-16a. At most, some prior a dministrations allowed individuals to de-
`part from the rule of relying on biological sex only if individual applicants produced
`medical evidence of certain interventions, which is a far cry from universal self-selec-
`tion. Respondents also emphasize that the lower courts have allowed the classwide
`injunction to remain in effect for “three months,” Opp. 36, but two of those months
`involved the First Circuit deliberating before issuing a four-page stay denial. Appl.
`12; Appl. App. 144a-147a. If lower courts’ delays counted against applicants, that
`would perversely encourage applicants to bypass lower courts to avoid prejudicing
`their applications, further complicating the already “fast and furious business” of lit-
`igating on this Court’s interim docket. See Labrador v. Poe, 144 S. Ct. 921, 927 (2024)
`(Gorsuch, J., concurring). This Court should discourage that result.
`* * * * *
`For the foregoing reasons and those stat ed in the government’s application,
`this Court should stay the district court’s June 17 preliminary injunction.
`Respectfully submitted.
`D. JOHN SAUER
` Solicitor General
`OCTOBER 2025
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