Federal Judge Pauses Passport Changes
The federal judge overseeing the ACLU’s suit against the Trump administration over its policy regarding the sex marker on Americans’ federally issued identification documents has issued a temporary pause for six plaintiffs. The ACLU hopes to expand that pause to the rest of us.
by Alyssa Steinsiek
On January 20, 2025, almost immediately upon taking office for the second time, President Donald Trump issued an executive order declaring that the United States federal government only recognizes two genders, male and female, and that they are designated at birth and immutable. A federal judge, it seems, disagrees.
Some background: among many other terrible things, the executive order stated that, “The Secretaries of State and Homeland Security, and the Director of the Office of Personnel Management, shall implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex, as defined under section 2 of this order.”
This directive in effect compelled the State Department and Department of Homeland Security to issue identifying documents with sex assigned at birth listed, rather than any amended sex marker that the bearer of the card might have filed for. On February 7, the American Civil Liberties Union took the Trump administration to court on behalf of seven transgender Americans whose civil rights, they say, were violated by this executive order. The new policy, they said, was “arbitrary and capricious [and] violates the right to travel and right to privacy under the Due Process Clause of the U.S. Constitution, violates the Equal Protection Clause of the U.S. Constitution, and compels speech from transgender, nonbinary, and intersex passport holders in violation of their First Amendment rights.”
Last Friday, April 18, Biden-appointed U.S. District Judge Julia Kobick agreed to the ACLU’s request for a preliminary injunction, granting six of the seven plaintiffs a temporary stay on any changes made to their passports while the suit continues.
“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.”
Kobick also added, “In addition, the plaintiffs have shown that they are likely to succeed on their claim that the Passport Policy is arbitrary and capricious, and that it was not adopted in compliance with the procedures required by the Paperwork Reduction Act and Administrative Procedure Act.”
Justice Department attorneys said, on behalf of the Trump administration, that the executive order did not violate the equal protection guarantees of the Constitution (source: trust me), and that the plaintiffs would not be harmed by the blatantly discriminatory policy because they would still be free to travel. This ignores the obvious safety risks of regularly outing yourself to complete strangers everywhere you go.
The policy set forth by Trump’s day one executive order has had far reaching consequences, from sex markers changed without consent to more than one country issuing a travel advisory to its trans and nonbinary citizens against the United States.
In a press release issued by the ACLU, Li Nowlin-Sohl, Senior Staff Attorney for the ACLU’s LGBTQ & HIV Project, said, “This decision is a critical victory against discrimination and for equal justice under the law. But it’s also a historic win in the fight against this administration’s efforts to drive transgender people out of public life. The State Department’s policy is a baseless barrier for transgender and intersex Americans and denies them the dignity we all deserve. We will do everything we can to ensure this order is extended to everyone affected by the administration’s misguided and unconstitutional policy so that we all have the freedom to be ourselves.”
In the same press release, Jessie Rossman, Legal Director at ACLU of Massachusetts, said, “This ruling affirms the inherent dignity of our clients, acknowledging the immediate and profound negative impact that the Trump administration's passport policy would have on their ability to travel for work, school, and family. By forcing people to carry documents that directly contradict their identities, the Trump administration is attacking the very foundations of our right to privacy and the freedom to be ourselves. We will continue to fight to rescind this unlawful policy for everyone so that no one is placed in this untenable and unsafe position.”
Though the preliminary injunction only applies to six of the plaintiffs in the ACLU’s lawsuit, they have announced that they intend to file a motion requesting that the court certify a class of people adversely affected by the current passport policy, and to then extend the preliminary injunction to that entire class.
Alyssa Steinsiek is a trans woman journalist who reports on news relevant to the queer community and occasionally posts on BlueSky.
