BOSTON — A federal judge on Friday partially blocked the Trump administration from enacting a policy that bans the use of “X” marker used by many nonbinary people on passports as well as the changing of gender markers.
U.S. District Judge Julia Kobick, who was appointed by President Joe Biden, sided with the American Civil Liberties Union’s motion for a preliminary injunction, which stays the action while the lawsuit plays out. It requires the State Department to allow six transgender and nonbinary people who are plaintiffs in the lawsuit to obtain passports with sex designations consistent with 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,” Kobick wrote. “That standard requires the government to demonstrate that its actions are substantially related to an important governmental interest. The government has failed to meet this standard.”
Kobick also said plaintiffs have shown they would succeed in demonstrating 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,” she added.
In an executive order signed in January, the president used a narrow definition of the sexes instead of a broader conception of gender. The order says a person is male or female and it rejects the idea that someone can transition from the sex assigned at birth to another gender. The framing is in line with many conservatives’ views but at odds with major medical groups and policies under former President Joe Biden.
The ACLU, which sued the Trump administration, said the new policy would effectively mean transgender, nonbinary and intersex Americans could not get an accurate passport.
“This decision is a critical victory against discrimination and for equal justice under the law,” said Li Nowlin-Sohl, senior staff attorney for the ACLU’s LGBTQ & HIV Project. “But it’s also a historic win in the fight against this administration’s efforts to drive transgender people out of public life. The State Department’s policy is a baseless barrier for transgender and intersex Americans and denies them the dignity we all deserve.”
Nowlin-Sohl said it plans to file a motion requesting 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 too scared to submit their passports because they fear their applications might be suspended and their passports held by the State Department. Another mailed in their passport on Jan. 9 and requested a name change and to change their sex designation from male to female. That person is still waiting for their passport — meaning they can’t leave Canada where they live and could miss a family wedding in May and a botany conference in July.
Before he applied for his new passport, Ash Lazarus Orr was accused in early January by the U.S. Transportation Security Administration of using fake documents when traveling from West Virginia to New York — since he had a male designation on his driver’s license but a female one on his passport. That prompted him to request the updated passport with a sex designation of male — four days before Trump took office.
In response to the lawsuit, the Trump administration argued the passport policy change “does not violate the equal protection guarantees of the Constitution.” They also contended that the president has broad discretion in setting passport policy and that plaintiffs would not be harmed by the policy, since they are still free to 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 Department wrote. “But the Department is not responsible for Plaintiffs’ choice to change their sex designation for state documents but not their passport.”