A federal judge in Boston has ruled that transgender and intersex people can obtain passports that align with their gender identity, in a rebuke to an executive order from the Trump administration that said passports must conform to the sex citizens were assigned at birth.
US district judge Julia Kobick issued a preliminary injunction that expanded an earlier order she issued in April that had stopped the US state department from enforcing the policy in the case of six people, after finding the order was probably unconstitutional.
The judge’s new order means that all trans citizens will be able to update their gender markers on their passports as the case against Donald Trump’s order proceeds.
After the US president signed an executive order on the first day of his term in January, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, the US state department announced that it would “no longer issue US passports or Consular Reports of Birth Abroad (CRBAs) with an X marker. We will only issue passports with an M or F sex marker that match the customer’s biological sex at birth.”
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.
“While this is good news,” the American Civil Liberties Union (ACLU) said in a statement, “we will continue fighting until this executive order is blocked permanently.”
Last month Kobick, who was appointed by Joe Biden, sided with the ACLU’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 9 January 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.
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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.
