Federal appeals court says Trump must allow 'X' gender marker on passports

The US Court of Appeals for the First Circuit on Thursday refused to pause a lower court’s injunction blocking the Trump administration from issuing passports that reflect a person’s biological sex at birth.

Under the Biden administration, the US Department of State allowed passport seekers to select "M," "F," or "X" as their sex marker, which did not have to correspond with the person’s birth sex. One of the executive orders signed by Trump on his first day back in office directed agencies to "implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex," with sex being defined in the order as "an individual’s immutable biological classification as either male or female."

Transgender, nonbinary, and intersex people, represented by the ACLU sued over the order, claiming that the policy unlawfully prevented them from obtaining passports that lined up with their gender identities, per Reuters.

The appeals court said that the plaintiffs were "likely to succeed on their claim that the Department's implementation of its Passport Policy was arbitrary and capricious, in violation of the Administrative Procedure Act."

"In its motion papers, the government mostly describes certain long-term institutional interests of the executive branch that may be harmed if the challenged policy is enjoined. In contrast, based on the named plaintiffs' affidavits and the expert declarations submitted by the plaintiffs, the district court made factual findings that the plaintiffs will suffer a variety of immediate and irreparable harms from the present enforcement of the challenged policy, including 'a greater risk of experiencing harassment and violence' while traveling abroad."

Li Nowlin-Sohl, Staff Attorney for the ACLU’s LGBTQ & HIV Project, said following the ruling, "We’re thankful the court rejected this effort by the Trump administration to enforce their discriminatory and baseless policy. People across the country depend on identity documents that accurately reflect their identity–who they are in their workplaces, their schools, and their communities. The administration’s attempts to deny that right to transgender, nonbinary, and intersex people has no basis in law or policy and we’ll continue to fight this policy until its permanently defeated."

Jessie Rossman, legal director at the ACLU of Massachusetts, said, "The ability to access accurate identification is core to the safety and wellbeing of all people in this country. It has profound impacts on the ability of trans, nonbinary, and intersex to travel and exist in this country. We are glad that the First Circuit upheld the District Court's injunction in this case, and we will continue to advocate for the basic rights and dignity of our clients and all class members."

Passport Appeals Court Ruling by Hannah Nightingale