U.S. Supreme Court Justice Ketanji Brown Jackson issued a scathing dissent following the court’s Thursday ruling, which she described as a “back-of-the-napkin” approach to solving the issue at hand.
In a 6-3 decision, the high court reversed a lower court order that blocked President Donald Trump’s executive order mandating that transgender individuals use only the gender assigned at birth on their passports.
“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,” Jackson wrote in her dissent.
“Our task in deciding stay applications is not simply to make a ‘back-of-the-napkin assessment of which party has the better legal argument.’ Rather, the actual nub of the project (if we choose to involve ourselves in the matter at all) is to fairly determine whether the applicant’s showing justifies our extraordinary intervention,” she continued.
“To do this, we consider not only the applicant’s likelihood of success on the merits, but also whether the applicant will suffer irreparable harm absent emergency intervention, as well as the relative harm to the parties and the public interest in the grant or denial of a stay,” Jackson explained.
“Here, the balance-of-the-equities factor requires weighing the harm to the Government from not being able to proceed immediately with its allegedly unlawful policy against the harm to the individuals who would be subjected to that policy,” she added, citing court precedents.
“Balancing the equities is an important part of the analysis because it avoids unnecessary real-world injury to people with colorable legal claims,” Jackson emphasized.
She noted that for the past 33 years, transgender Americans have been issued passports with sex markers that match their gender identity. It was the Trump administration that changed this long-standing precedent, which allowed citizens to amend their gender marker with a doctor’s certification of gender reassignment.
“The State Department’s sex-marker policies have thus long demonstrated that what is important for identification purposes is the bearer’s gender identity today,” Jackson highlighted.
Under the new policy, transgender individuals will face additional questioning and scrutiny if the sex listed on their passport does not match their gender identity. This, she said, is a direct result of a decision by President Donald Trump.
“Why? Because two days earlier, on January 20, President Trump issued Executive Order No. 14168, characterizing transgender identity as ‘false’ and ‘corrosive’ to American society,” Jackson wrote.
The order 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.”
https://www.rawstory.com/ketanji-brown-jackson-transgender-case/
