Gender Justice League has received dozens of emails, calls, and social media outreach from Trans folks who have received passports in their sex assigned at birth, despite filing their applications for a new passport or passport renewal before the new policy was announced on January 20th, 2025. We want to share some facts, practical advice, and what we anticipate may be happening going forward.
As we all know, this is a period of great upheaval and uncertainty, and we are not offering this as legal advice, but rather, public education. We encourage you to reach out to and consult with an attorney at a free legal clinic with a county bar association, through an LGBTQ+ service organization, or a local free legal service organization.
Background: Executive Orders + The Administrative Procedures Act
An Executive Order is NOT a law. Executive Orders like the one President Trump issued declaring “sex is either male or female for all federal purposes” is not a new law; it is the executive branch’s interpretation (or supposed interpretation) of laws passed by Congress. Once an executive order is signed, it is transmitted to each of the federal government departments and agencies, such as the State Department, for policy changes and rule-making.
This process is governed by a federal law called the Administrative Procedures Act. In order for a new policy, practice, or rule to be legal and constitutional, it MUST follow this law. Otherwise, courts will find the new policy is “arbitrary and capricious;” meaning it was decided without careful consideration, study, or public comment and consultation. What has been happening since January 20th to Trans people is exactly that!
The State Department has issued a new rule for public comment, acknowledging that up until this rule has closed public comment, everything they have done has been illegal under the Administrative Procedures Act. There was no emergency situation that required them to illegally issue passports not following the current policy.
What should I do if I have received a passport with my sex assigned at birth?
First, we encourage you to contact the ACLU and the Lambda Legal Help Desk to share about your case. Please be aware that they may not be able to respond directly to you, but that they will have your information. Please be specific about your situation, including if you were seeking an X gender marker, if you previously had an X gender marker, if you have immediate plans for international travel, what documents you submitted, and if the State Department refused to return your submitted documents. Both organizations are likely to be inundated with people seeking support and their capacity to help people individually is extremely limited, however it does provide our community with intelligence as to what is ACTUALLY happening in real time—this is VITAL for lawsuits! While your case might seem “common,” there might be important differences or details that can be helpful to lawyers.
Second: If an injunction is issued in the ACLU lawsuit (Orr v. Trump), you can immediately reapply for a new passport. We urge everyone to monitor this case closely. An injunction is a temporary order that will reset the passport policy back to the Biden Administration’s policy—but this injunction will only be in place for a limited time, likely until the end of a trial and ruling from the judge. Injunctions can also be appealed, and we expect the Department of Justice to appeal the injunction because they’re petty AF. That means the window where the injunction is in place could be quite short. If you file a new application while the injunction is in place, the State Department will have to decide your passport based on the Biden era policy.
Can I file a lawsuit?
In short, yes; however, it’s complicated, often expensive, and it might be hard to find a lawyer.
A lot goes into a federal lawsuit, and in the past, the courts have often deferred to the State Department whenever lawsuits have been filed challenging passports—for example, in the 1950’s-1980s when communists couldn’t get passports, and in the 2010’s when Dana Zzyymm sued repeatedly to get a non-binary passport. In each case, the court sent it back to the State Department. This makes most lawyers very weary of taking on a federal case against the State Department. We hope that legal organizations will continue to challenge this new policy in federal courts.
What about the current lawsuit re: passports?
The ACLU & ACLU of Massachusetts filed a lawsuit against the State Department for their passport policy and their refusal to issue correct passports. The lawsuit represents 7 plaintiffs—all Trans or non-binary people whose passports were changed to their sex assigned at birth. The case will be heard in Boston.
A lot of things can happen in a lawsuit. Here are some possible important points to pay attention to:
An injunction is a request by an injured party (in this case, Trans and non-binary people) to the court to halt a bad law or policy that the government has enacted. An injunction, if granted by the judge, can affect either just the named plaintiffs in the lawsuit or a whole class of people (i.e. all Trans and non-binary people who are affected). We can’t guess if a judge will issue a nationwide injunction or not, as a lot goes into this decision-making process.
IF an injunction is issued, the State Department would have to return to the Biden Administration’s policy of offering X gender markers and allowing Trans people to have their affirmed gender on our passports, and they would resume processing passports in that way.
An injunction remains in place until AFTER a trial has been completed and a judge has made a ruling. If that ruling is appealed, the injunction continues to be in place.
If the judge in Boston issues an injunction, we urge everyone to immediately seek to obtain a new passport.
What is the likelihood of success in the passport lawsuit?
It is honestly hard to say. This case is novel, meaning there have been very few successful cases challenging the State Department’s decisions on what is included in a passport or how they decide that.
We are, however, hopeful. This lawsuit is a unique situation; the State Department is reversing course and taking away a right, and courts are almost always suspicious when this happens. The ACLU has a strong argument that this policy was driven by unconstitutional animus (meaning, hatred or bigotry) against Trans and non-binary people. The executive order itself shows deep contempt for Trans people, and when combined with the other executive actions, it will be difficult for the State Department to show a legitimate reason why the government changed course.
The risks of this approach: In the past, federal courts have often “deferred” or shown “deference” to administrative decisions of agencies on how to set rules that are not clearly spelled out in the law. For instance: The Passport Act does not clearly spell out how, or even if, sex is included on passports. Courts have often relied on agencies to be “experts” in if or how to interpret the law. This changed last summer when the Supreme Court struck down a long-standing judicial principle called the Chevron Deference (related to a court case involving the Chevron oil company). It is possible now that federal judges will look at larger constitutional questions like “does this rule violate the 5th Amendment right to equal protection?” which is something most courts were unwilling to do before last summer.
We are hopeful that Trans people will continue to fight and resist.
We believe that courts will see very clearly that this policy change places our lives in grave danger when traveling abroad, and that the policy does not serve a legitimate state interest; meaning that the government doesn’t have a real reason for wanting to out Trans people or dictate their sex on identity documents. However, the courts are not our only hope. We can continue to organize, advocate, and push back by demanding Congress pass laws that protect Trans people.
For more information on understanding executive orders and The Administrative Procedures Act, check out our blog post here.