Seven individuals have filed a federal lawsuit against the State Department after an executive order from Donald Trump barred people from updating the sex designation on their passports, preventing them from obtaining passports that reflect their accurate gender.
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On his first day in office, Trump signed an executive order aimed at enforcing discrimination against transgender people across federal agencies and government programs. Among other things, this instructed the Departments of State and Homeland Security to ensure that government-issued identification, including passports, visas, and Global Entry cards, reflected a person’s sex “at conception.” As a result, within 24 hours, the State Department began withholding some passports and other documents — such as birth certificates and court orders — submitted by transgender, intersex, and nonbinary applicants seeking to update their sex designation. Others had their applications rejected, with newly issued passports reverting to their sex assigned at birth.
“I’ve lived virtually my entire adult life as a man. Everyone in my personal and professional life knows me as a man, and any stranger on the street who encountered me would view me as a man,” Reid Solomon-Lane of North Adams, Mass., said in a press release from the American Civil Liberties Union, one of the groups representing him and other plaintiffs. “I thought that 18 years after transitioning, I would be able to live my life in safety and ease. Now, as a married father of three, Trump’s executive order and the ensuing passport policy have threatened that life of safety and ease. If my passport were to reflect a sex designation that is inconsistent with who I am, I would be forcibly outed every time I used my passport for travel or identification, causing potential risk to my safety and my family’s safety.”
The ACLU has received over 1,500 inquiries from concerned transgender people or family members, many of whom, worried about being able to get passports that accurately reflect their identity, have had their passports suspended or pending, through their legal intake form.
For years, including those in the first Trump administration, the State Department has allowed people to make changes in sex designation on their passports to better align with their gender identity. In 2022, under President Joe Biden, the State Department revised its policy to make changes in sex designation easier and allowed individuals to select M, F, or an alternative X for their sex. In 21 states, the District of Columbia, and many countries around the world, similar policies apply for birth certificates and driver’s licenses.
Since the Executive Order took effect, the State Department has publicly stated that applications requesting a sex designation matching a person’s gender identity rather than their sex assigned at birth have been suspended. An official with the White House has also stated that the policy requiring passports to bear the holder’s sex assigned at birth “will not be applied retroactively,” so existing passports are valid, but it will be applied to passport renewals.
Along with the national ACLU, the ACLU of Massachusetts and the law firm Covington & Burling LLP are representing the plaintiffs in the suit, who are unable to obtain passports that align with their gender identity or who are at risk of being affected when they next renew. The complaint was filed in U.S. District Court for the District of Massachusetts.
The lawsuit challenges the State Department’s passport policy by arguing that it violates the Administrative Procedure Act by being unconstitutional, arbitrary, and capricious, and by failing to follow the required notice-and-comment process for changes to government forms. It also asserts that the policy violates the Due Process Clause of the U.S. Constitution by unlawfully restricting the freedom of movement of transgender, intersex, and nonbinary individuals. The lawsuit argues that the policy violates the Equal Protection Clause by unjustifiably discriminating against individuals based on sex. Lastly, the suit says the policy violates the First Amendment by forcing people to carry passports with a sex designation that conflicts with their identity, effectively outing them to others and compelling them to convey a government-mandated ideological message they disagree with.
“The plaintiffs in this case have had their lives disrupted by a chaotic policy clearly motivated by animus that serves zero public interest,” Sruti Swaminathan, staff attorney for the ACLU’s LGBTQ & HIV Project, said in the release. “Our clients need to travel for work, school, and family, and forcing them to carry documents that directly contradict what they know about themselves to be true — or withhold those documents altogether — is a blatant effort to violate their privacy and deny them their freedom to be themselves. We’re thankful for their participation in this lawsuit and are hopeful the court will see through this flagrant attempt to violate our plaintiffs' rights under the Constitution.”
“This is yet another example of the Trump administration attempting to deny the dignity of transgender people and trying to push them out of public life,” added Jessie Rossman, legal director at the ACLU of Massachusetts. “These efforts are cruel, unfair, and unlawful. We’re challenging this unconstitutional Passport Policy because all people deserve the freedom to live their lives safely and with dignity.”
“Transgender, intersex, and nonbinary people deserve dignity, privacy, and the right to travel, just as all people do,” said Isaac D. Chaput, a partner in Covington’s San Francisco office. “We admire the courage of our clients to stand up to this attempt to deprive them of these fundamental rights, and we’re proud to represent them alongside the ACLU and ACLU of Massachusetts.”
