Trans, Nonbinary People Win Key Court Victory on Passport Rights

A federal judge has ruled against the Trump administration’s efforts to block transgender and nonbinary people from having markers that more accurately correspond to their gender identity on their passports, granting those individuals the ability, at least for now, to have those markers reinstated.

An executive order signed by President Donald Trump in January established a narrow definition of sex for the federal government, stating that a person’s gender identity was equivalent to the sex they were assigned at birth. Soon after, the State Department crafted a directive saying that the order would apply to government-issued passports.

“We will only issue passports with an M or F sex marker that match the customer’s biological sex at birth,” the State Department website stated.

A group of transgender and nonbinary plaintiffs, represented by the American Civil Liberties Union (ACLU), sued to have the directive blocked, arguing that they should be allowed to have “male,” “female” or “X” designations placed on their passports based on their gender identities. On Tuesday, Massachusetts-based U.S. District Court Judge Julia Kobick sided with those plaintiffs, extending an original preliminary injunction to include not only those individuals but trans and nonbinary people throughout the country who are without a valid passport, as well as those whose passports will soon expire or who need to apply for a new one because theirs has been stolen.

Kobick disagreed with the administration’s arguments that there would be constitutional injury or harm to the executive branch’s relations with other countries over the use of inclusive markers on passports.

“[The Trump administration] has not identified any specific ways in which an injunction requiring the State Department to issue passports bearing sex designations with which it disagrees is likely to injure the Executive Branch’s relations with foreign sovereigns,” Kobick wrote in her decision, adding that:

Even assuming a preliminary injunction inflicts some constitutional harm on the Executive Branch, such harm is the consequence of the State Department’s adoption of a Passport Policy that likely violates the constitutional rights of thousands of Americans.

The White House reacted negatively to Kobick’s ruling — the latest instance of Trump officials attacking judges who rule against the administration’s far right agenda.

The decision is “yet another attempt by a rogue judge to thwart President Trump’s agenda and push radical gender ideology that defies biological truth,” a spokesperson for the White House said — a statement that disregards the prevailing view among biology and gender experts that gender and sex are not binary.

The administration is likely to appeal the ruling.

Spokespersons for the ACLU, meanwhile, heralded the ruling issued by Kobick.

“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.”

Nowlin-Sohl also said the department’s policy “is a baseless barrier for transgender, nonbinary, and intersex Americans and denies them the dignity we all deserve.”

“The Trump administration’s passport policy attacks the foundations of the right to privacy and the freedom for all people to live their lives safely and with dignity,” said Jessie Rossman, legal director for the ACLU of Massachusetts. “We will continue to fight to stop this unlawful policy once and for all.”