Despite The Supreme Court’s Ruling Against Nationwide Injunctions, Trump’s Trans Passport Ban Will Remain Blocked

One of our legal wins is untouched by yesterday's ruling.

Yesterday, the Supreme Court essentially ruled that only they can stop the Trump administration from violating the Constitution. This likely means that almost all existing injunctions against the Trump administration are likely to be lifted, from birthright citizenship to gender-affirming care for minors. However, there is one exception: the injunction forcing the Trump administration to allow trans people to change their passports.

A Powerful Loophole

First, let’s establish what a class is when it comes to law. If you’ve ever heard of class-action lawsuits, it’s basically the same concept: classes allow a small group of people to sue on behalf of everyone who is being affected by the policy. And if class status is granted, each person affected by the policy has been found to have legal standing to sue. In the majority opinion, Justice Barrett makes the following statement towards the end:

The Government’s applications to partially stay the preliminary injunctions are granted, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.

Reading between the lines, this sentence leaves open the ability for lower courts to issue nationwide preliminary injunctions, but only when they find standing to apply it to the class. Alito himself notices this, writing in his concurrence that the court has left the question of class certification completely unresolved, something he believes will impact his ability to do his master’s bidding the ‘significance’ of the ruling. And in her dissent, Justice Sotomayor acknowledges this fact, encouraging the plaintiffs of the birthright citizenship case to file for class status, as that is the only way the appropriate injunction can now be granted.

In the case Orr v. Trump, Judge Julia Kobick got ahead of this ruling and created a class for all trans people seeking to make changes to and/or replace their passport when she issued the injunction last week. This means that the court’s ruling does not affect this lawsuit, and as such, the Trump administration will not be able to wiggle its way out of this injunction.

I know yesterday’s ruling is bleak, but it’s a relief to know that there is still a way for the Trump administration to be stopped. And although it may take a bit longer for injunctions to be granted going forward, I have no doubt that organisations like the ACLU and Lambda Legal will pursue class certification for all their pending lawsuits because of the ruling, something that can actually serve to strengthen the case against the federal government.

For now, I highly recommend each and every one of you change your passports while we’re still able. There’s no telling how long the injunction will last, but as of this moment, it is still in effect. He hasn’t won yet.