BOSTON – In an impactful development on Friday, a federal judge intervened to partially halt a Trump administration initiative aimed at prohibiting the use of the “X” gender marker by nonbinary individuals on U.S. passports. Additionally, the policy in question restricts changes to gender markers. U.S. District Judge Julia Kobick, appointed by President Joe Biden, supported the American Civil Liberties Union’s (ACLU) request for a preliminary injunction, effectively pausing the policy while the lawsuit proceeds.
Judge Kobick mandated that the State Department must allow six transgender and nonbinary litigants to acquire passports reflecting their true gender identity. “The Executive Order and the Passport Policy on their surface classify passport applicants based on sex and thereby warrant intermediate judicial scrutiny,” Kobick explained. She further noted, “This standard obliges the government to display a substantial connection between its actions and an important governmental interest, which the government has not demonstrated.”
The judge highlighted that the plaintiffs are likely to prove that the passport policy and associate executive order originate from irrational bias against transgender individuals, contradicting the constitutional pledge to equality for all. Kobick added, “Plaintiffs have shown probable success in arguing that the Passport Policy is arbitrary and inconsistent with the Paperwork Reduction Act and the Administrative Procedure Act procedures.”
Earlier this year, in January, an executive order delineated a narrow interpretation of sex, rejecting the notion of transitioning from the birth-assigned sex. This definition aligns with many conservative perspectives, diverging from the standpoint of major medical organizations and policies under previous President Joe Biden. The ACLU argued that the new guidelines would essentially obstruct transgender, nonbinary, and intersex individuals from securing accurate travel documentation.
“This ruling signifies a crucial triumph against discrimination and aligns with justice,” expressed Li Nowlin-Sohl, a senior staff attorney with the ACLU’s LGBTQ & HIV Project. “Furthermore, it represents a historic step against this administration’s efforts to marginalize transgender people. The State Department’s rule erects an unnecessary obstacle for transgender and intersex individuals, denying them rightful dignity.”
The ACLU is considering escalating the request, applying the court’s judgment to benefit all transgender and nonbinary U.S. citizens. The lawsuit outlined an instance involving a specific woman who had her passport incorrectly designated as male. Numerous others have refrained from applying for fear of their documents being suspended or withheld. One person sent a passport in January, seeking both a name and sex change but remains in limbo, unable to leave Canada and attending significant family and professional events.
Ash Lazarus Orr, in an attempt to secure a new passport, faced accusations from the U.S. Transportation Security Administration for using misleading travel documents, given the gender discrepancy between Orr’s driver’s license and passport. This prompted an application for an updated passport prior to President Trump assuming office.
Responding to the legal action, the Trump administration defended their policy, asserting it does not breach equal protection rights granted by the Constitution. They argued the president possesses broad discretion in defining passport policy and contended that plaintiffs face no real harm since international travel remains available to them.
The Justice Department elaborated, “Certain Plaintiffs assert the risk of inconsistent identification documents revealing their transgender status. However, choices by Plaintiffs not to reconcile sex designation on state and federal documents are not the Department’s responsibility.”