Appeals Court Upholds Order Blocking Trump Admin’s Passport Gender-Marker Policy

The federal appeals court noted that the government did not meet its burden to secure a stay.

U.S. passports are arranged for a photograph in Tigard, Ore., on Dec. 11, 2021. Jenny Kane/AP Photo

A federal appeals court on Sept. 4 upheld a lower court ruling that blocked enforcement of President Donald Trump’s executive order banning the use of gender-neutral markers on passports.

U.S. District Judge Julia Kobick issued an injunction in April blocking the Department of State from enforcing the passport policy against six plaintiffs who filed the case, later expanding it in June to grant class certification, covering other Americans identifying as nonbinary or transgender.

In the Sept. 4 ruling, the court’s three-panel judge stated that the government failed to meaningfully address the district court’s finding that the changes to passport policy were rooted in “unconstitutional animus toward transgender Americans.”

The judges noted that the federal government did not meet its burden to secure a stay, despite its argument that blocking the policy could harm “certain long-term institutional interests of the executive branch.”

“In contrast, based on the named plaintiffs’ affidavits and the expert declarations submitted by the plaintiffs, the district court made factual findings that the plaintiffs will suffer a variety of immediate and irreparable harms from the present enforcement of the challenged policy, including ‘a greater risk of experiencing harassment and violence’ while traveling abroad,” the judges stated.

The American Civil Liberties Union (ACLU) of Massachusetts, which represented the plaintiffs, said the ruling ensures that “transgender, non-binary, and intersex people will continue to be able to obtain accurate passports.”

In a statement to The Epoch Times, White House spokesperson Anna Kelly called the court’s ruling “an attempt to thwart President Trump’s agenda and push radical gender ideology that defies biological truth.”

“There are only two genders, there is no such thing as gender ‘X’, and the President was given a mandate by the American people to restore common sense to the federal government,” Kelly stated.

The United States had permitted individuals who identify as transgender and intersex to choose a different sex for their passport than their birth sex since 1992, pending submission of medical documentation, until the rules were changed in 2021 under President Joe Biden.

The Biden administration allowed people to self-select their passport sex marker based on gender identity. Individuals who identified as non-binary or intersex were allowed to select an “X” marker rather than “M” or “F.”

After taking office on Jan. 20, Trump signed an executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” mandating that government-issued identification documents, including passports, use sex rather than gender identity.

“It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality,” the order stated.

ACLU filed the lawsuit in February on behalf of the plaintiffs challenging Trump’s order. Kobick ruled in their favor in April, noting that the administration failed to demonstrate substantial government interests in changing the passport policy.

Joseph Lord contributed to this report.