The News
US President Donald Trump’s executive order declaring the government will only recognize two sexes, “male and female,” is leaving transgender Americans in legal limbo, with many reporting that they aren’t able to update their passports and other official identification, and in some cases have had their documents withheld.
The US State Department, responsible for issuing passports, quickly suspended all pending applications that involved gender marker changes following Trump’s order, which defined gender as determined “at conception” — a designation widely criticized by medical experts.
Passport agents, working without a clear mandate, scrambled to implement the broad order that Trump signed on his first day in office. “I’m hearing from a lot of people that [the initial directive] was done in a very facetious fashion, and will enfranchise a lot of State Department agents to act in kind,” Michael Wildes, an immigration attorney who helped secure US citizenship for first lady Melania Trump, told Semafor. Its abruptness “may embolden adjudicators to act erratically rather than sensitively,” he added.
Semafor spoke to eight Americans who experienced delays, denials, or had their documents held without explanation after submitting applications. In some cases, people appealed to their local representatives to intervene. Others said they had decided against submitting applications for fear of losing their documents.
More explicit State Department guidance released in February directs passport officers to carefully evaluate conflicting information, including issuance dates of records and any amendments to them. “The State Department has been tasked with an impossible task, and there is no clean or clear way to go about what they are trying to do for a variety of reasons,” said Arli Christian, a senior policy counsel at the American Civil Liberties Union. That confusion will cause delays in some, if not many, cases, Christian added — leaving people without passports or other identifying documents.
The ACLU has filed a federal lawsuit on behalf of seven plaintiffs, arguing the policy violates their constitutional rights.
The State Department did not respond to requests for comment.
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One woman in Michigan told Semafor that she had repeatedly tried and failed to get an update on her daughter’s expedited application to renew her passport, filed Jan. 22 (expedited applications typically take 2-3 weeks to be approved).
The family contacted Sen. Gary Peters’ office, which said the passport office would only issue a passport with a male gender marker. (Peters’ office declined to comment.) The application is “processing.”
Another woman who tried to renew her son’s passport earlier this month was told by the agent that he couldn’t issue a passport with either gender marker, citing a lack of official guidance. The agent eventually submitted the application without her son’s expiring passport as a supporting document. She has since been asked to provide more information to process the application.
Carl Charles, a senior attorney at Lambda Legal, told Semafor that “a number of people” had reported similar experiences. He recalled one case in which a person in Chicago had their passport and other identification held after their name change request was denied — the documents were eventually returned after two congressional representatives’ offices intervened.
California resident Beatrice Coates repeatedly contacted the passport office for updates on an application submitted in December, and “got the same stonewalled response.” Coates told Semafor that she asked Rep. Norma Torres to inquire on her behalf. Torres’ office declined to comment on Coates’ case, but said it “worked with a variety of constituents facing passport-related issues… to ensure timely and fair processing of applications.” Coates’ application was approved on Feb. 13, but she doesn’t know if the new passport’s gender marker will match her other identification documents.
Consular Records of Birth Abroad are also affected by the policy change. A man in Vermont hasn’t had an update after applying in December to change the gender marker on his son’s CRBA. Democratic Rep. Becca Balint’s office contacted the State Department on his behalf, he said, but received no further information. Balint’s office told Semafor it had “worked with about 10 constituents” on similar issues.
Step Back
The policy also affects Americans abroad, said Janice Flynn, a UK-based immigration lawyer. If someone loses their passport, they may be stranded while the State Department adjudicates what gender marker the replacement should have. People could also experience issues with US customs and border agents if their documents carry different gender markers, said Charles.
If a person decides not to disclose their sex assigned at birth on a passport or CRBA application by not submitting other evidence of a name or gender marker change, it could also open the door to allegations of making false statements on a federal document, Flynn added.
Although the State Department’s policy seemed “intended to dissuade people from even trying” to update their documents, Charles emphasized that the policy did not suggest that applications would be investigated under the premise of false statements.
More broadly, the ACLU’s Christian argued that the Trump administration has sought to frame transgender people as dishonest as part of a “fearmongering campaign.” Trump’s Jan. 27 order barring trans people from enlisting or serving openly in the military, for example, states that the “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle.”
Room for Disagreement
Responding to the ACLU’s lawsuit against the gender policy, a White House spokesperson told The New York Times last week that the administration was prepared to defend it in court: “Radical Leftists can either choose to swim against the tide and reject the overwhelming will of the people, or they can get on board and work with President Trump to advance his wildly popular agenda.” A 2023 poll by the nonpartisan Public Religion Research Committee found that more Americans believed there were only two genders compared with previous years.
Critics of the executive order have said that its definition of gender ideology is intentionally loose, but conservatives have supported the language. A director at the Heritage Foundation recently told NPR: “It’s not hard to tease out what’s meant by the term by actually looking at the effects and emphases of the executive order itself.”
The View From Democrats
Rep. Kevin Mullin, D-Calif. told Semafor that the State Department “should have provided information on how many people will be negatively impacted by the Trump administration’s hasty and discriminatory order.”
“Someone with an incorrect passport can be easily singled out, opening them up to harassment, or even violence,” Rep. Mark Takano, D-Calif., who chairs the Congressional Equality Caucus told Semafor, adding that the caucus knew of numerous cases where “constituents have been negatively impacted by this policy.”
Reps. Mullin, Takano, and Balint are among 77 Democratic lawmakers who sent a letter Tuesday calling on US Secretary of State Marco Rubio to reverse the policy.
Notable
- The State Department first included gender markers on passports in 1977, when the rise of unisex fashion made it harder for border agents to distinguish between men and women, The New York Times reported.
Mathias Hammer contributed.