"Displaying passport holders' sex at birth," the US Supreme Court held in a short, unsigned ruling on November 6, "no more offends equal protection principles than displaying their country of birth."
The case, Trump v. Orr, concerns a Trump administration policy of requiring that "sex at birth," rather than "gender identity," be displayed on US passports. The ruling allows that policy to stand -- reversing a lower court's stay on its enforcement -- while the matter continues to work its way through the lower courts.
Here's what the plaintiffs in the case say they're after: "[T]he same thing millions of Americans take for granted: passports that allow them to travel without fear of misidentification, harassment, or violence."
While the following should be obvious, it has to be said because most people don't seem to have noticed:
Passports don't ALLOW people to travel, they RESTRICT the ability of people to travel. They're a relatively recent tool of government control. They're also wholly unconstitutional.
There's a term for the government holding you in a place you'd rather not be and forbidding you to leave without permission. That word is "imprisonment."
Under the US Constitution, imprisonment requires due process of law, including but not limited to conviction, by a jury, of a crime.
It wasn't until 1947 that the US government strayed so far beyond the Constitution's limits on its powers that it started requiring passports to enter or leave the US -- and that requirement didn't apply at the Canadian and Mexican borders until after 9/11.
The inclusion of "sex markers" on passports at all is silly, and limiting those "sex markers" to comply with Donald Trump's personal preferences is sillier.
If the purpose of a passport is to establish that the government has issued a particular person a Very Special Important Permission Slip to Travel, matching that person's fingerprint to a fingerprint on the passport is sufficient. Anything more is about bureaucratic control fetishes, not a desire to identify travelers.
Trump v. Orr just messes around at the edges of the bigger issue. The government shouldn't be allowed to -- and the Constitution forbids it to -- require those Very Special Important Permission Slips to Travel in the first place.
If SCOTUS was willing to do its job -- voiding unconstitutional laws -- it would overturn the entire federal travel control regime instead of creatively interpreting "equal protection."
The continuing existence of the US passport scheme is just another evidentiary exhibit in the airtight case that Lysander Spooner put forth in 1870:
"[W]hether the Constitution really be one thing, or another, this much is certain -- that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist."
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