Judge Blocks Trump’s Executive Order That Gender On Passport Must Be Listed As ‘Male’ Or ‘Female’ In Victory For Trans & Nonbinary Groups

After President Donald Trump signed an executive order in January limiting gender to a male-female binary, a federal judge ruled that passport sex markers cannot be limited, allowing representation to transgender and nonbinary citizens.

U.S. District Judge Julia Kobick ruled that transgender or nonbinary people who need a passport, need to renew or require a name and/or gender change can request male, female or “X” identification markers, not limiting markers that match their gender assigned at birth.

Executive Order 14168 uses a restrictive definition of sex as opposed to the broader idea of gender. “It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality,” as written in the order.

The process for this change began earlier this year when Kobick issued a preliminary injunction against the policy. However, that ruling only applied to a few people who joined the American Civil Liberties Union (ACLU) in a lawsuit addressing the passport policy.

In this most recent ruling, she expanded the previous injunction to include all transgender or nonbinary people who do not have a valid passport, those with an expiring passport, those applying for a replacement due to theft or loss and those requesting a name or sex change.

The government was unable to prove constitutional damage if this ruling were enacted or harm to executive branch relations with other countries. However, those covered by the preliminary injunction demonstrated that the passport policy violated their constitutional right to equal protection, Kobick said.

“Even assuming a preliminary injunction inflicts some constitutional harm on the Executive Branch, such harm is the consequence of the State Department’s adoption of a Passport Policy that likely violates the constitutional rights of thousands of Americans,” Kobick wrote.

Kobick sided with the ACLU’s original motion for an injunction, which put a pause on the action during the lawsuit process.

“The Executive Order and the Passport Policy on their face classify passport applicants based on sex and thus must be reviewed under intermediate judicial scrutiny,” Kobick wrote in the preliminary injunction issued earlier this year. “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 the suit, the ACLU noted that people did not submit a passport for changes due to fear of suspension or that the State Department would hold their passports.

Following the lawsuit being filed, the Trump administration defended the order, saying the policy change “does not violate the equal protection guarantees of the Constitution.”