On Friday, a federal judge partially blocked the Trump administration from enacting a policy that prohibits the use of the “X” marker on passports, as well as the change of gender markers.
U.S. District Judge Julia Kobick, appointed by former President Joe Biden, granted the American Civil Liberties Union’s motion for a preliminary injunction, halting the action while the lawsuit is pending.
It requires the State Department to allow the six transgender and nonbinary plaintiffs in the lawsuit to obtain passports with sex designations that correspond to their gender identity.
“The Executive Order and the Passport Policy on their face classify passport applicants on the basis of sex and thus must be reviewed under intermediate judicial scrutiny,” according to Kobick.
“That standard requires the government to show that its actions are substantially related to a significant governmental interest. “The government has failed to meet this standard.”
Kobick also stated that plaintiffs have demonstrated that the new passport policy and executive order “are based on irrational prejudice toward transgender Americans and therefore offend our Nation’s constitutional commitment to equal protection for all Americans.”
“In addition, the plaintiffs have shown that they are likely to succeed on their claim that the Passport Policy is arbitrary and capricious, and that it was not adopted in compliance with the procedures required by the Paperwork Reduction Act and Administrative Procedure Act,” said the attorney.
In an executive order issued in January, the president used a narrow definition of the sexes rather than a broader understanding of gender. The order states that a person is either male or female and rejects the notion that someone can change their gender from the one assigned to them at birth. The framing is consistent with many conservative views, but it contradicts major medical groups and policies under former President Joe Biden.
The ACLU, which sued the Trump administration, claimed that the new policy would effectively prevent transgender, nonbinary, and intersex Americans from obtaining accurate passports.
“This decision is a critical victory against discrimination and for equal justice under the law,” said Li Nowlin-Sohl, senior staff attorney with the ACLU’s LGBTQ & HIV Project.
“But it’s also a historic victory in the fight against the administration’s efforts to exclude transgender people from public life. The State Department’s policy creates an unnecessary barrier for transgender and intersex Americans, denying them the dignity that we all deserve.
Nowlin-Sohl intends to file a motion requesting that the ruling be applied to all transgender and nonbinary Americans.
In its lawsuit, the ACLU described how one woman had her passport returned with a male designation, while others are afraid to submit their passports for fear that their applications will be suspended and their passports will be held by the State Department.
On January 9, another person mailed in their passport, requesting a name change as well as a change in gender from male to female. That person is still waiting for their passport, which means they cannot leave Canada and may miss a family wedding in May and a botany conference in July.
Before applying for a new passport, Ash Lazarus Orr was accused by the United States Transportation Security Administration of using forged documents to travel from West Virginia to New York, because he had a male driver’s license but a female passport. That prompted him to request an updated passport with a male sex designation, four days before President Trump took office.
In response to the lawsuit, the Trump administration stated that the passport policy change “does not violate the equal protection guarantees of the Constitution.”
They also claimed that the president has broad discretion in determining passport policy and that plaintiffs would not be harmed by the policy because they can still travel abroad.
“Some Plaintiffs additionally allege that having inconsistent identification documents will heighten the risk that an official will discover that they are transgender,” the Justice Dept. wrote. “But the Department is not responsible for Plaintiffs’ choice to change their sex designation for state documents but not their passport.”