On his first day back in office, President Donald Trump signed an executive order called “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”
Among other things, it directed the Departments of State and Homeland Security “to require that government-issued identification documents, including passports, visas, and Global Entry cards,” reflect an American’s sex “at conception.”
The American Civil Liberties Union has said it attempts to “mandate discrimination against transgender people across the federal government and government programs.”
The group highlights that “under the ensuing Passport Policy, within 24 hours the State Department began holding some passports and other documents (such as birth certificates and court orders) submitted by transgender, intersex, and nonbinary people who had applied to update the sex designation on their U.S. passports and returning others with their applications rejected and their newly-issued passport marked with their sex assigned at birth.”
Later, Secretary of State Marco Rubio issued a memo, “Guidance for Visa Adjudicators on Executive Order 14201: ‘Keeping Men Out of Women’s Sports,’” which, as summarized by trans journalist and activist Erin in the Morning, “may have just barred most transgender people with updated gender markers who are seeking visas from obtaining visas to enter the United States.”
The federal government also eliminated references to transgender travelers from the State Department’s travel advisory website. In a section now called “LGB Travelers,” officials advise “many countries also only recognize the male and female sex markers in passports and do not have IT systems at ports of entry that can accept other sex markers.”
The page’s travel guidance makes no other mention of those with a minority gender identity. In light of these and other anti-transgender changes from the Trump administration, several countries have issued travel warnings to their LGBTQ+ citizens who may be interested in traveling to the United States.
Denmark issued a travel advisory for transgender individuals March 21, stating “if you have the gender designation X in your passport, or you have changed your gender, it is recommended that you contact the U.S. Embassy prior to travel for guidance on how to proceed,” the Associated Press reported.
The German Federal Foreign Office issued a similar travel advisory March 5, explicitly mentioning Trump’s executive order to ban the issuing of “X” gender markers on passports and Rubio’s attempts to bar any visa applications with the same marker. The Finnish, Portuguese, Netherlands and Irish Ministries and Departments of Foreign Affairs have each issued similar advisories.
Pushback against the Trump administration’s attacks have also come from the U.S. The ACLU filed a lawsuit on behalf of seven transgender and nonbinary people in February. The plaintiffs had “not been able to obtain passports that match who they are because of the State Department’s new Passport Policy or are likely to be impacted by the new policy upon their next renewal,” said the ACLU.
Named Orr v. Trump, “the lawsuit argues the policy is arbitrary and capricious, violates the right to travel and right to privacy under the Due Process Clause of the U.S. Constitution, violates the Equal Protection Clause of the U.S. Constitution, and compels speech from transgender, nonbinary, and intersex passport holders in violation of their First Amendment rights.”
“It’s very isolating and concerning,” Plaintiff Ashton Orr told USA Today. “Receiving a passport that misgenders me is not just a clerical error; it’s a profound denial of my identity and my existence.”
On April 18, U.S. District Judge Julia Kobick in Boston issued a preliminary injunction against Trump’s order. The ACLU noted that “though today’s court order applies only to six of the plaintiffs in the case, the plaintiffs plan to quickly file a motion asking the court to certify a class of people affected by the State Department policy and to extend the preliminary injunction to that entire class.”
According to the AP, Kobick stated the plaintiffs have successfully proven the passport policy and executive order “are based on irrational prejudice toward transgender Americans and therefore offend our Nation’s constitutional commitment to equal protection for all Americans.”
The policies are “arbitrary and capricious,” they also noted, adding “it was not adopted in compliance with the procedures required by the Paperwork Reduction Act and Administrative Procedure Act.”
Southern Legal Counsel Director of Transgender Rights Initiative Simone Chriss celebrated the victory. She advised “those among us who are rightly afraid and understandably outraged should feel vindicated in the fact that federal courts across the country are scrutinizing this administration’s cruel and inhumane targeting of transgender Americans.”
She added that they are “revealing the undeniable truth: These actions are motivated solely by irrational prejudice and a bare desire to harm a group of people they do not like.”
On April 25, a second federal lawsuit was filed against the administration’s passport policy. Lambda Legal filed it on behalf of seven transgender and nonbinary people.
“Our clients have concluded that international travel is now effectively impossible when they are forced to carry an identity document that shares private and inaccurate information without their consent,” said Lambda Legal Senior Attorney Carl Charles. “This needlessly cruel and discriminatory policy exposes them to the very real dangers of harassment and discrimination and complicates their lives simply because of who they are.
“The anti-transgender animus is clear and intentional,” he added. “…The State Department’s focus should be on accurate identity verification, including by communicating the sex someone lives as, in accordance with their gender identity. This is yet another deliberate targeting for political gain, ensuring transgender people are singled out for harassment, discrimination, and at worst, detention or physical violence.”
In light of all the changes and ongoing litigation, how can transgender Americans protect themselves when traveling?
Arli Christian, senior policy counsel for the ACLU, told the 19th — which reports on gender, politics and policy — to “make sure you’re armed with all the information you need to calmly inform an officer what your rights are.”
He says transgender travelers should carry backup documents like a birth certificate and a copy of the federal policy to give them more leverage and confidence.
For more information about ongoing litigation and to learn more about your rights as an LGBTQ+ traveler, visit ACLU.org, LamdaLegal.org and SouthernLegal.org.
