United States | Federal court halts State Department’s gender-based passport policy

A federal court expanded a Preliminary Injunction (PI) on June 17 pausing enforcement of the Trump administration’s new passport policy and allowing the issuance of U.S. passports to applicants with an “X” marker or those listing a sex different from their sex at birth.

Key Points:

• In February, the State Department provided guidance on the use of sex markers, stipulating that the department will no longer issue U.S. passports or Consular Reports of Birth Abroad (CRBAs) with an “X” marker, and requiring that a passport reflect an applicant’s sex assigned at birth.
• On June 17, a federal judge for the United States District Court District of Massachusetts issued a PI requiring the State Department to allow individuals to apply for U.S. passports that reflect their gender identity.
• The order blocks enforcement of the State Department’s passport policy created to implement President Trump’s January 20 Executive Order, which mandated that federal agencies recognize only the gender assigned at birth.
• Previously the court had issued an injunction that applied only to a limited group of individuals who are parties to the lawsuit. The PI issued June 17 expands the class of persons who will benefit from the injunction to all individuals who have applied for, or but for the Trump administration’s policy, would have applied for a U.S. passport with an “M” or “F” sex designation that is different from the sex assigned at birth; or with an “X” designation.

Additional Information: In granting the PI, the Court ultimately found the plaintiff’s significant hardships outweighed the government’s burden stating, “The balance of the equities and the public interest favor granting preliminary injunctive relief to members of the PI Class. The plaintiffs have demonstrated that members of the PI Class are likely to face significant hardships absent preliminary injunctive relief. The government contends that the balance of the equities nevertheless tilts in its favor, primarily because of the administrative burden associated with class-wide relief. While this burden may be more than de minimis, it does not outweigh the equities favoring the PI Class.” The complete Court order can be read here.

The Trump administration is expected to appeal the ruling.

BAL will continue to monitor litigation related to this policy and provide updates.

This alert has been provided by the BAL U.S. Practice Group.

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