Policy Placed on Hold for Plaintiffs
As reported by Erin Reed and Assigned Media, on 18 April, Judge Julia Kobick at the Federal District Court for Massacheusets ruled that six of the seven plaintiffs have been granted the ability to receive passports with gender markers that align with their gender identity following a suit brought by them against the US State Department (the US equivalent of the Foreign Ministry). As has been widely reported elsewhere, following US President Donald Trump’s Executive Order issued on January 20 declaring that it “is the policy of the United States to recognize two sexes, male and female”, the State Department ceased issuing or changing passports with self-attest-to gender markers, including X markers. Instead, they now rely on new definitions of sex and gender created by the Department of Health and Human Services (HHS) after the Executive Order was issued to force all applicants, including all trans and very likely intersex people, to use their gender assigned at birth (AGAB).
Currently, this decision only applies to six of the plaintiffs. The seventh, who was seeking to renew a passport that still has several years until it expires and a marker that already reflects their identity, was not granted the ability to apply for a renewal with the appropriate gender marker at this time. What this means is that the new policy is still in effect for everyone else, and any other applications submitted for issuance, renewals, or updates will likely wind up with a person’s AGAB on them, even if they already have a passport with the appropriate marker.
As other outlets have already discussed the details of the case (Erin Reed also includes a link to the decision itself in her article), I would like to focus here on a few issues that many may not be aware of regarding how sex and gender are recorded and attested to across the United States as well as for US passport holders overseas.
A Mosaic of Laws
Birth certificates are of extreme importance for individuals with US citizenship. According to the American Bar Association:
In the United States, birth certificates serve as proof of an individual’s age, citizenship status, and identity. They are necessary to obtain a social security number, apply for a passport, enroll in schools, get a driver’s license, gain employment, or apply for other benefits.
Typically, birth certificates are maintained by the individual states. This also means that the ability to alter a birth certificate is a matter of state, not federal, law. Some states, such as California, allow individuals to change sex/gender markers relatively easily via self attestation, while others, such as Minnesota, require documentation of medical treatment or a court order. Yet others, such as Tennessee, do not allow for changes to sex/gender makers for any reason, outside, presumably, of “errors”. Although some states, such as Oregon, have an “X” option, not all do. There are similar discrepancies in state laws regarding name changes, although most appear to require a court order, which can be either simple or quite involved to obtain, again depending on the state. (While transequality.org maintains a directory regarding state laws, it is best to verify with specific state agencies or a lawyer. WTT has verified our information through state-run websites where possible. In the case of Tennessee, see this AP article for more details on the law and court case connected with their situation.)
Applying for one’s first US passport often involves submitting a copy of one’s birth certificate along with the application. In the past, this presumably meant that if you submitted a birth certificate with an updated marker, that would have been reflected on your passport. According to the court decision in the case above, the process changed gradually from the 1990s to accommodate people whose home states did not allow for changes to their birth certificates. Initially this meant providing medical evidence such as a physician’s letter attesting to having undergone GRS. That was first relaxed to becoming a requirement to have a doctor’s letter stating you were receiving treatment for Gender Identity Disorder/Gender Dysphoria before being relaxed further to allow fully for self-attestation. Changes of name, however, appear to have always required formal processes for name changes, such as obtaining a court order.
Since January 2025, however, this has been changed to disallow any alterations to a passport’s gender marker. Apparently, the State Department will not necessarily honor a state issued birth certificate, either. Instead, if the State Department has reason to believe that the person’s gender on documentation or their passport application does not match their AGAB, they will attempt to ascertain what their AGAB is. As has been revealed in other reporting, such as in the case of Hunter Schafer, this has resulted in people having the gender marker on their passports issued as or reverted to their AGAB, despite what other documentation may exist, including previously issued passports.
Some questions about how this will work in practice remain. Namely, given that some states, such as Illinois, allow for old birth certificates and records to be placed under seal after a change to the gender marker has been made, it is unclear how the State Department will ascertain a person’s AGAB, especially if other records, federal and state, have all been changed as well. Viewing sealed records can involve either demanding the individual unseal them, or requesting they be unsealed via court order.
Perhaps even larger is the question of time, effort, and money needed to launch investigations into every case the State Department determines to be suspect. Does the presumed seriousness of matching a single federal document, one not generally used within the borders of the United States, equal the work and cost that will be involved? Or will this turn into a sink of resources, pursued to make the ideology outlined in the Executive Order that started all this a reality?
Pain Likely to be Felt by Travelers and Overseas Residents Alike
As in the Federal court case discussed at the beginning, travelers overseas who do not possess the proper gender marker on their documents can face numerous issues. One plaintiff is described in the court decision as being faced with refusal of a car rental in Iceland due to the discrepancy between the gender listed on their state issued driver’s license and their passport. As with birth certificates, driver’s licenses are also state-issued, and what name/gender marker appears on them are subject to state, not federal, laws. Others noted that screening staff at airports treated them with suspicion, sometimes leading to invasive searches of their person, due to differences between the gender listed on their passport and their gender presentation or updated name.
Beyond travellers, however, is the issue of citizens who reside outside of the United States, of whom there are estimated to be 5.5 million as of 2023 (estimate from the Association of Americans Resident Overseas), although other organizations, including the US State Department, put that number at closer to 9 million. This means that the number of US citizens overseas totals the population of some US states, or even countries such as Norway, Denmark, and Ireland. It goes without saying that among that number, quite a few will also be trans.
For US citizens overseas, their passports can often be their chief if not their sole document attesting to their identity to other governments. In many places, updates to passport information need to be reported to local authorities, and these changes are then reflected on local documents. If a person’s gender marker is reverted by the State Department during a passport renewal or when updating other information, it could cause a potential knock-on effect to other forms of identification in their country of residence. This could possibly lead to chaos for the individual.
As a familiar example to readers, let’s look at what might happen in Japan. Although updating one’s gender marker in official documentation as a Japanese citizen requires a lengthy and potentially expensive legal process, non-citizens can alter their gender markers if they are able to update their passports. This is because the Japanese government generally bases information regarding a non-citizen on what is in their passport. The new State Department policy could, in theory, unleash a whole host of problems to contend with. If, for instance, a cis female Japanese citizen and a trans male US citizen were married, the US citizen’s passport reverting to their AGAB could result in the couple being forced to divorce in Japan, since Japan has yet to legalize marriage equality.
Given this recent US Federal Court decision, there appears to be some hope that the US State Department will end up having to restore its previous passport policy at some point. The current notion of “sex at conception” (per the Executive Order) or “sex at birth” (per the HHS) is quite obviously problematic, because they seem to assume that 1. sex at conception is knowable, and 2. any and all alterations to one’s birth documents are somehow fraudulent, seemingly even including with intersex individuals whose parents may request a change while they are still small. At present, it is unclear how the State Department would even consider intersex individuals, outside of potentially a case by case basis. This, again, all raises the question of whether this approach by the US administration is practical or even necessary.
Photo: Photo by Global Residence Index on Unsplash
