Judge says government can’t limit passport sex markers for many transgender, nonbinary people

BOSTON (AP) — A federal judge expanded a ruling Tuesday that blocked the Trump administration from enacting policy changes to sex markers on passports for many transgender and nonbinary Americans.

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.

U.S. District Judge Julia Kobick granted a motion to apply her earlier ruling to people who want a passport different than the male/female sex designation they were given at birth and those who want an X designation.

The ruling applies only to those people who are currently without a valid passport, those whose passport is expiring within a year, and those who need to apply for a passport because theirs was lost or stolen or because they need to change their name or sex designation.

Initially the ruling only applied to the six plaintiffs in the case.

Last month 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.”

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 was still waiting for their passport, the ACLU wrote in the lawsuit, and feared missing a family wedding and a botany conference this year.

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.