When Ash Lazarus Orr went to renew his passport in early January, the transgender organizer figured it would be relatively routine.
But more than two months on, Orr is waiting to get a new passport with a name change and a sex designation reflecting who he is. The delay has prevented him from traveling overseas to receive gender-affirming care this month in Ireland since he refuses to get a passport that lists an “inaccurate sex designation.”
Orr blames the delay on President Donald Trump, who on the day he took office issued an executive order banning the use of the “X” marker as well as the changing of gender markers. The order says a person is male or female and it rejects the idea that someone can transition from the sex assigned at birth to another gender.
“This is preventing me from having an accurate identification and the freedom to move about the country as well as internationally,” said Orr, who is among seven plaintiffs — five transgender Americans and two nonbinary plaintiffs — who have sued the Trump administration in federal court over the policy. “This has really, truly impeded on my life and my freedom as well … The government is questioning who I am as a trans person.”
The American Civil Liberties Union is suing the federal government on their behalf and will be in court Tuesday in Boston seeking a preliminary injunction, which would put the policy on hold while the lawsuit proceeds in court.
In their lawsuit, the ACLU described how one woman had her passport returned with a male designation while others are too scared to submit their passports because they fear their applications might be suspended and their passports held by the State Department. Another mailed in their passport on Jan. 9 and requested a name change and to change their sex designation from male to female. That person is still waiting for their passport — meaning they can’t leave Canada where they live and could miss a family wedding in May and a botany conference in July.
“All have faced prior mistreatment due to their gender identities, and they fear that having incorrect sex designations on their passports will cause them further mistreatment — including putting them in danger,” the ACLU wrote.
Before he applied for his new passport, Orr was accused in early January by the U.S. Transportation Security Administration of using fake documents when traveling from West Virginia to New York — since he had a male designation on his driver’s license but a female one on his passport. That prompted him to request the updated passport with a sex designation of male — four days before Trump took office.
“We all have a right to accurate identity documents, and this policy invites harassment, discrimination, and violence against transgender Americans who can no longer obtain or renew a passport that matches who they are,” ACLU lawyer Sruti Swaminathan said.
In response to the lawsuit, the Trump administration has argued the passport policy change “does not violate the equal protection guarantees of the Constitution.” They also contend that the president has broad discretion in setting passport policy and that plaintiffs would not be harmed by the policy, since they are still free to travel abroad.
“Some Plaintiffs additionally allege that having inconsistent identification documents will heighten the risk that an official will discover that they are transgender,” the Justice Department wrote. “But the Department is not responsible for Plaintiffs’ choice to change their sex designation for state documents but not their passport.”
After the Trump executive order, the State Department quickly stopped issuing travel documents with the “X” gender marker preferred by many nonbinary people, who don’t identify as strictly male or female, and used by some intersex people, who have sex characteristics that fall outside of traditional definitions of male or female. The department also stopped allowing people to change the gender listed on their passport or get new ones that reflect their gender rather than their sex assigned at birth.
Applications that had already been submitted seeking gender-marker changes were put on hold. The State Department also replaced its webpage with information for “LGBTQI+” travelers to just “LGB,” removing any reference to transgender or intersex people.
The passport policy is among several actions Trump has taken since returning to office that could stifle rights and legal recognition of transgender, intersex and nonbinary people.
The same order that seeks to define the sexes to exclude them would also require housing transgender women in prison in men’s facilities. Additional orders could open the door to kicking transgender service members out of the military, barring the use of federal taxpayer money to provide gender-affirming care to transgender people under 19 and keeping transgender girls and women out of girls and women’s sports competitions.
