When Ash Lazarus Orr applied to renew his passport in early January, the transgender advocate expected a straightforward process. However, Orr is still waiting for a new passport that accurately reflects his name and gender more than two months later. An upcoming international trip to Ireland for gender-affirming care has been jeopardized because Orr refuses to accept a passport bearing what he deems an incorrect sex designation.
Orr attributes the delay to an executive order issued by President Donald Trump on his first day in office. The order bans the use of the “X” gender marker and prohibits changing gender markers, only recognizing male or female as the options. This order challenges the idea of transitioning from one’s birth-assigned gender to another.
“This situation restricts my ability to have accurate identification and impacts my freedom to travel domestically and internationally,” Orr said. Orr is one of seven plaintiffs, which includes five transgender individuals and two nonbinary individuals, who have filed a lawsuit against the Trump administration over the policy. “This truly affects my life and freedom,” he added, noting that the government’s stance questions his identity as a transgender person.
The American Civil Liberties Union (ACLU) has taken legal action against the federal government, representing Orr and others, and was in Boston’s court on Tuesday seeking a preliminary injunction. This legal move aims to temporarily halt the policy while the lawsuit continues. “The executive order is clearly anti-trans, not just a passport policy,” said Li Nowlin-Soul, an ACLU attorney, emphasizing the urgency to challenge the policy amid widespread attacks on trans rights.
U.S. District Judge Julia Kobick, nominated by President Biden, is considering the motion.
The ACLU lawsuit outlines the hurdles faced by several plaintiffs, including one woman who received a passport with a male designation and others too fearful to apply for changes. One plaintiff mailed their passport in January, requesting a name and sex marker change, and still awaits a new document, jeopardizing their ability to leave Canada for family and professional engagements.
“All plaintiffs have experienced discrimination due to their gender identities, and incorrect passport sex designations further endanger them,” the ACLU argued.
Orr’s application for a passport with a male designation was prompted by an accusation from the U.S. Transportation Security Administration in January that he used false documents while traveling. This was due to the male designation on his driver’s license contradicting the female designation on his passport. Orr applied for the passport revision shortly before Trump’s inauguration.
“Accurate identity documents are a fundamental right, and this policy encourages discrimination and violence against transgender individuals who cannot get passports reflecting their true identities,” stated ACLU attorney Sruti Swaminathan.
The Trump administration defends the policy change, claiming it aligns with constitutional protections and does not infringe on equal rights. The administration argues the president has wide authority over passport regulations and that plaintiffs retain the ability to travel abroad. “Some plaintiffs suggest that inconsistent documents elevate their risk of being identified as transgender,” the Justice Department contended. “However, the Department isn’t responsible for differences between state and federal documents.”
During the hearing, Judge Kobick challenged the government’s assertion that the policy causes no harm or discrimination based on sex. She expressed concerns about placing the passport policy in broader context with other Trump administration measures affecting transgender people.
“Are you aware that recent executive orders seem to roll back rights or protections for transgender individuals?” Kobick inquired of Benjamin Takemoto, a Justice Department lawyer. Takemoto denied that the policy was anti-trans, partly because it does not mention transgender individuals specifically.
Following Trump’s executive order, the State Department ceased issuing passports with an “X” marker, preferred by many nonbinary individuals, and stopped permitting gender changes on passports to reflect gender identity rather than birth-assigned sex. Pending applications for gender marker changes were left in limbo. The State Department’s “LGBTQI+” informational webpage was also altered to exclude transgender and intersex individuals.
The passport policy is one of multiple actions by the Trump administration that could limit the rights and recognition of transgender, intersex, and nonbinary individuals. The order aims to redefine sex in a way that excludes these groups and has implications for housing transgender prisoners, military service, funding for gender-affirming care for minors, and their participation in sports.