A federal judge has intervened to block a policy from the Trump administration that aimed to eliminate the X gender marker option on U.S. passports. This decision, issued by U.S. District Judge Julia Kobick in Massachusetts, halts the enforcement of the policy while a legal challenge proceeds. The policy, introduced by the State Department in January, aligned with an executive order by President Donald Trump that recognized only male and female sexes, disregarding the views of major medical groups that support the fluidity of gender identity. The policy affects new passports and renewals, but not those already issued.
The legal challenge was initiated by five transgender individuals and two nonbinary persons, with representation from the American Civil Liberties Union (ACLU), its Massachusetts affiliate, and the law firm Covington & Burling. The plaintiffs argue that the policy discriminates based on sex, thus requiring intermediate judicial scrutiny. Judge Kobick noted that the government’s defense failed to demonstrate that the policy was substantially related to an important governmental interest.
The ACLU and its allies have emphasized the right to accurate identity documents, highlighting the risks of harassment, discrimination, and violence that could result from the policy. The decision is seen as a significant victory for equality, countering efforts perceived to marginalize transgender individuals. Li Nowlin-Sohl from the ACLU’s LGBTQ & HIV Project underscored the importance of the ruling in protecting the dignity and rights of transgender and intersex Americans.
Since taking office, the Biden administration has reversed several policies of the previous administration, including making the X gender marker available on passports in 2022. This move followed the issuance of the first passport with the X marker in 2021 to Dana Zzyym, an intersex and nonbinary veteran who had legally challenged the restriction of gender options on passport applications.
During court proceedings, Judge Kobick expressed skepticism towards the Trump administration’s policy, suggesting it overlooked the legitimacy of gender identity. In defense, government lawyers argued the policy did not breach constitutional equal protection guarantees. However, past rulings, including the Supreme Court’s decision in Bostock v. Clayton County, affirm that discrimination based on gender identity is a form of sex discrimination under the Civil Rights Act of 1964.
The Trump administration contended that the policy would not impede passport holders’ ability to travel. However, concerns persist among trans, nonbinary, and intersex communities about potential travel complications arising from gender markers not aligning with their gender presentation.
