A federal judge in Boston on Friday ordered the Trump administration to issue passports that reflect the self-identified gender of six transgender people rather than requiring that the passports display the sex on the applicants’ original birth certificates.
The order from Judge Julia E. Kobick was a victory, at least temporarily, for the six plaintiffs, who she said were likely to prevail on their claim that a new policy by the Trump administration amounts to a form of unconstitutional sex discrimination under the Fifth Amendment, as well as the Administrative Procedures Act. The State Department adopted the new policy earlier this year to comply with an executive order from President Trump directing all government agencies to limit official recognition of transgender identity.
“The plaintiffs have been personally disadvantaged by the government — they can no longer obtain a passport consistent with their gender identity — because of their sex assigned at birth,” wrote Judge Kobick, who was nominated by former President Joseph R. Biden Jr. “The passport policy does indeed impose a special disadvantage on the plaintiffs due to their sex and the court therefore concludes that it discriminates on the basis of sex.”
The judge’s order on Friday applied only to six transgender plaintiffs who were seeking new passports and had sued the Trump administration. The order does not apply to a seventh plaintiff, who already holds a passport, valid until 2028, with the sex marker that corresponds to his gender identity. The order, which will remain in place as the case goes forward, does not bar the government from the new passport requirement for other transgender people.
In court documents, the plaintiffs suing the government argued that a mismatch between the sex listed on their passport and the way they think of themselves and are perceived puts them at risk of suspicion and hostility that other Americans do not face. During the first several weeks of Mr. Trump’s administration, two plaintiffs received passports with an “F” or “M” marker that was contrary to what they had requested. Another plaintiff learned that selecting an “X” marker, indicating a nonbinary gender identity, was no longer an option in the application process, though it had been allowed since 2022.
The restrictions on passports are part of a broad effort by the Trump administration to minimize the role of gender identity in how American society organizes itself. In the first of a series of executive orders on transgender issues, Mr. Trump characterized people whose gender does not match the sex on their birth certificate as “making a false claim.” Gender identity, the order states, is not “a replacement for sex” and “does not provide a meaningful basis for identification.”
Lawyers with the American Civil Liberties Union filed the lawsuit on behalf of the plaintiffs, several of whom live in Massachusetts.
At a hearing in Boston and in court documents, Trump administration lawyers argued that the government has a strong interest in passports that accurately reflect the holder’s sex. The government also urged the judge not to overestimate the harm the plaintiffs would endure if she were to decline to issue an injunction.
“They remain free to travel with the passports they have now or with passports issued pursuant to the passport policy,” the government lawyers wrote. “Most plaintiffs have been traveling with a passport reflecting their birth sex for their entire lives.”
But the judge on Friday said that the government had failed to demonstrate that its interest in maintaining uniform data on sex across government agencies bore a “substantial relationship” to the new policy — the standard required to justify government policies or laws that discriminate on the basis of sex. She rejected the government’s argument that the policy does not discriminate on the basis of sex because it applies to people of both sexes, saying that “the focus of the inquiry must be whether, as applied to an individual, there exists a classification based on sex.”
The judge also found that State Department was likely to be found to have violated the Administrative Procedures Act, which requires that agency policies not be “arbitrary and capricious.”
The State Department first allowed transgender people to change their sex marker in the early 1990s if they provided evidence that they had undergone transition surgery. In 2010, the department began accepting a letter from a doctor stating that an applicant had received “appropriate clinical treatment for gender transition.” In 2021, the State Department issued the first passport with a gender-neutral marker — an “X.” The next year, the Biden administration issued a new policy allowing passport applicants to choose “M,” “F” or “X,” and replaced the term “sex” with “gender” on passport application forms, according to court documents.
“The State Department jettisoned its practice of more than 30 years with no explanation of the facts on which it premised its new determination and no consideration of the reliance interests in its prior policy,’’ Judge Kobick wrote.
Ernesto Londoño contributed reporting.
Amy Harmon covers how shifting conceptions of gender affect everyday life in the United States.
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