An image of a US passport for representational purposes.
Credit: iStock Photo
The Supreme Court on Thursday allowed the Trump administration to stop issuing passports that reflect the gender identity of transgender, nonbinary and intersex Americans.
The order temporarily approves a policy requiring passports to display a person’s sex assigned at birth, even if it differs from their gender identity, while lower courts consider whether the policy is legal.
Here’s what passport holders need to know about the court’s order.
How will travelers be affected by the new rules?
If transgender, nonbinary and intersex travelers already have passports that reflect their gender identities, the passports will remain valid until their expiration dates. The court’s decision does not revoke anyone’s passport or change validity rules for passports that were previously issued, according to the American Civil Liberties Union.
The new rule comes into play when a traveler applies for their first passport or when renewing an existing passport, which is typically required every 10 years for adults.
The rule requires that a new passport reflect a person’s sex assigned at birth, even if it’s different than the person’s gender identity. It also ends a Biden-era policy that allowed passport holders to select a gender-neutral “X” rather than a male or female designation.
Passports with the gender-neutral marking are still valid, according to the ACLU, which is challenging the policy in court. But when holders of those passports renew them, they’ll have to revert to the male or female designation they were assigned at birth.
How will the process of obtaining a passport change?
For some transgender, nonbinary and intersex people, submitting documents that list different names or sexes could slow the passport renewal process, said Cathryn Oakley, senior director of legal policy at the Human Rights Campaign, the nation’s largest LGBTQ+ advocacy group.
She added that, though some states allow residents to change the sex designation on their birth certificates, the State Department could compare any records from a previous passport application or renewal and flag if a person may be required to change their listed sex identification.
First-time passport applicants are generally required to submit a birth certificate and their Social Security number, among other documents and information. The Trump administration in January ended a policy that allowed the Social Security Administration to update its records in accordance with a person’s gender identity.
The State Department has not said how it will verify if a person’s birth sex matches the sex listed on their passport. The department responded to a request for comment with a link to a social media post by Secretary of State Marco Rubio celebrating the court’s order.
The consequences of the new policy may stretch beyond international travel. Oakley said that other tasks involving identity verification using a passport could also become more complicated and lead to privacy concerns for people whose listed sex does not match their gender identity.
Are these new rules final?
No. The Supreme Court’s order allows the rule to take effect while lower courts consider whether it’s legal. A federal judge blocked the rule in June, and a panel of appeals court judges unanimously upheld that decision in September. The Supreme Court blocked the lower court’s decision from taking effect for now.
While it’s unclear exactly how long the courts will take to resolve the case on its merits, Oakley said that “it’s more likely to be years than months.”
How has the policy changed over the years?
The State Department began including sex markers on passports in the 1970s and first allowed transgender people to update their markers in the 1990s. In 2010, the department revoked a requirement that transgender people provide evidence that they had undergone gender transition surgery in order to change their marker. Instead, the department required only a doctor’s letter. The first passports with the gender-neutral “X” were issued in 2021.