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Trans, nonbinary, and intersex people deserve passports that reflect their identity, the representatives say.
Eighty-two members of the U.S. House of Representatives have signed on to a letter opposing the implementation of the Trump administration’s anti-transgender passport policy.
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The State Department suspended applications for passports with an X gender marker and applications to change the gender marker in January, with Secretary of State Marco Rubio directing his staff to do so in accordance with Donald Trump’s executive order saying the federal government will “recognize only two sexes, male and female.” Seven people, represented by the American Civil Liberties Union, have filed suit to challenge the policy.
State Department officials said existing passports with the X marker will remain valid until expiration, but when holders apply to renew them, they must have the M or F marker, reflecting the gender assigned at birth. They also said new applications must have an M or F marker. In February, the department asked the Office of Management and Budget to collect public comments on the changes to passport applications.
The 82 House members, all Democrats, submitted a letter Monday to OMB Director Russell Vought saying they “strongly oppose” the changes. They are led by Congressional Equality Caucus Cochairs Julie Johnson and Emily Randall, plus Equality Caucus members Kevin Mullin and Gabe Amo.
“These changes, which the Department of State has stated are pursuant to Executive Order No. 14168, will decrease passport accuracy; will subject our transgender, nonbinary, and intersex constituents to potential harassment and violence; raise serious constitutional concerns; and are contrary to the purposes of the Paperwork Reduction Act,” they wrote.
The changes will interfere with Transportation Security Administration workers’ ability to correctly identify passport holders, the authors noted, as many holders will have a gender marker that does not match their gender expression or their legal name.
“These inconsistencies will increase confusion and complicate agents’ responsibility to ensure the passport belongs to the passport holder,” they continued. “Having a passport with an incorrect gender marker while abroad will also place Americans in dangerous and high-stress situations at passport controls overseas. This will both jeopardize these Americans’ safety abroad and potentially increase the workload of our consular officers around the world.” The move also will subject trans passport holders to harassment and violence, the authors said.
“The underlying policy of denying transgender, nonbinary, and intersex people passports that reflect their gender identity discriminates on the basis of sex, is not substantially related to an important government interest and does not rationally or substantially advance any legitimate government interest — as required under the Fifth Amendment’s guarantee of equal protection under the law,” they added.
The State Department has allowed trans passport holders to change their gender marker since at least 1992, according to the representatives. As of 2010, trans people were no longer required to show proof of gender-affirming surgery to make the change but allowed a range of other medical documentation. In 2022, the medical documentation requirement was removed, and the X gender marker became available.
“The changes the State Department is proposing to passport forms DS-11, DS-5504, and DS-82 and the Department’s underlying new passport policy undermine the purpose of passports to help correctly identify the passport holder, will harm our constituents, raise serious constitutional concerns, and are contrary to the purposes of the Paperwork Reduction Act,” the representatives concluded. “For these reasons, we urge you to abandon these proposed changes to replace the term “gender” with “sex” and to request the applicant's “biological sex at birth,” with only a male or female option. We urge the Administration to instead continue to allow transgender, nonbinary, and intersex Americans to update their passports to reflect their gender identity, including by applying for ‘X’ gender markers.
Signatories include LGBTQ+ House members Mark Takano, Mark Pocan, Ritchie Torres, Becca Balint, Robert Garcia, and Sarah McBride, the latter being the first out transgender member of Congress.
