Judge Blocks Trump’s Anti-Trans Passport Policy

A federal judge on Friday blocked the Trump administration from enforcing its policy barring trans people from updating the sex marker on their passports. U.S.

District Judge Julia E. Kobick in Boston sided the with American Civil Liberties Union’s push for a preliminary injunction while the lawsuit continues. “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 in the injunction.



“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.” Within hours of returning to office in January, President Donald Trump signed an executive order declaring that the United States would only recognize “two sexes, male and female.

” A few days later, the State Department began suspending all passport applications from people requesting an X gender marker or a marker that differed from one on a previous passport. In early February, seven transgender and nonbinary people filed a lawsuit, Orr v. Trump, after many of the plaintiffs had tried to renew their passports and ended up with documents with inaccurate sex markers.

The American Civil Liberties Union, which sued the federal government on behalf of the plaintiffs, argued that the executive order, and subsequent passport policy, are unconstitutional, and will cause harm and infringe on trans people rights to privacy. “This policy makes it incredibly unsafe for trans, nonbinary, and intersex people to travel when they don’t have accurate identification — whether it’s being forced to use a passport that outs them as transgender and nonbinary to strangers, including by disclosing their birth sex at every use or whether it’s being fearful of being in other countries that are even more hostile [toward trans folks] than the United States,” Sruti Swaminathan, an attorney at the ACLU, told HuffPost ahead of the decision. The State Department did not follow the Administrative Procedure Act when it began to comply with the executive order defining “sex” by issuing its own policy, the ACLU argues.

Under that law, federal agencies are required to follow certain standards for formal rulemaking, including publishing notice of the rule and allowing for public comment. “That change was not announced with 60 days’ notice in the Federal Register or any other public consultation. Indeed it was not announced at all,” the ACLU’s complaint read.

“The State Department made the change surreptitiously.” The department’s quiet policy change had immediate ramifications for scores of trans and nonbinary people seeking to update their passports — throwing many people’s plans around international travel, employment and medical care into jeopardy. A few days before Trump’s inauguration, Ash Orr, a trans organizer in Morgantown, West Virginia, and the eponymous plaintiff in the lawsuit, submitted an expedited application to update his passport sex marker as well as his last name.

A few weeks later, after sending his previous passport, birth certificate and marriage license to the State Department, Orr said he received a call from a supervisor in a California passport agency who told him he would need to “prove my biological sex.” “That’s when I realized: I’m not going to have my passport back in a timely manner,” Orr told HuffPost. He was supposed to leave the U.

S. on March 13 so he could go to Ireland for an appointment for gender-affirming medical care. Getting health care outside the U.

S. felt safer, and he was already forced to travel outside of his red state to access hormone therapy. Orr was forced to cancel his trip because he didn’t get his passport back until March 27.

He said that when his passport was returned, it still had an inaccurate sex marker. His marriage license was ripped and crumpled, and his original birth certificate was still missing at the time he spoke with HuffPost in late March. “The reality is that I am trapped,” Orr said.

The Trump administration argued in the suit that the passport policy did not “violate the equal protection guarantees of the Constitution.” They also argued that the president has the authority to set passport policies and that the plaintiffs would still be able to travel abroad. Many plaintiffs in the case Kobick ruled on however have reported similar concerns and experiences.

One anonymous plaintiff, identified as Bella Boe, worried that her application to get an “F” marker on her passport would be rejected and she would lose out on the opportunity to travel to Bermuda with her college’s theatre troupe. Her passport was returned with an inaccurate “M” marker. Chastain Anderson, another plaintiff, wrote in an affidavit that she fears she may not only miss out on international travel for her work as a toxicologist, but that she will be subjected to invasive security screenings at airport checkpoints.

Before she updated the sex on her Virginia driver’s license, Anderson said she was forced to undergo a strip search by a TSA agent at the airport in Richmond, Virginia, in 2017. She also was not permitted to update her passport after the State Department’s policy. “I felt that it was a direct result of the fact that my body did not match my sex designation on my license,” Chastain wrote.

“I am no stranger to these experiences, but I have not had to confront them since having accurate identification.” The order is just one of several injunctions issued by federal judges to halt Trump’s broad executive orders that have threatened to upend and reshape American society. Since Trump’s return to office, he has tried to roll back protections for trans people, including limiting access to gender-affirming medical care, removing their ability to participate in school athletics and the military, and upsetting the flow of federal funding for programs that aid trans youth and adults.

However, in many of the rulings, federal judges have found that Trump has tried to assert authority that the federal government does not have — and quietly skirt normal government rule making to push policies and regulations that are outwardly hostile to transgender people, particularly toward trans youth. In March, several judges ruled against Trump in cases challenging his administration’s ban on transgender service members in the military. Two federal judges issued pauses on Trump’s executive order that threatened federal funding for institutions that provide gender-affirming care for anyone under 19.

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