Overview
- The three-judge First Circuit panel, which heard arguments Tuesday, pressed DOJ on why last November's 6-3 Supreme Court emergency order should settle the transgender passport case.
- DOJ attorney Michael Velchik argued the unsigned opinion calling sex at birth a “historical fact” means the plaintiffs cannot win on equal-protection or administrative-law claims.
- Judges questioned relying on a shadow-docket stay, which is an emergency ruling without full briefing, as a binding decision on the merits.
- Both sides asked the court to vacate the district court’s preliminary injunction and to add an opinion on the merits, and judges warned that could stray into an advisory opinion.
- The panel announced no timeline for a decision, leaving in place a policy that lists only sex assigned at birth on passports and ends prior options for identity-based or “X” markers.