NewsA judge for the US District Court for the District of Massachusetts on Tuesday blocked President Donald Trump’s administration from refusing to issue passports to transgender, nonbinary and intersex individuals that reflect their identities. The ruling is an expansion of a previously issued preliminary injunction, wherein Judge Julia Kobick held that the Trump administration’s passport policy is likely in violation of the Equal Protection Clause and that it is arbitrary and capricious, thus in violation of the Administrative Procedure Act (APA).
The plaintiffs, in their initial complaint, argued that the government’s refusal to issue passports to “otherwise eligible Americans because they are transgender, intersex, or nonbinary” exposes them to “grievous harms” and violates their “constitutional rights to equal protection, travel, privacy, and speech.” They also contended that the policy “flout[s] the Administrative Procedure Act.” The plaintiffs are transgender or nonbinary Americans who will inevitably be impacted by the policy. One plaintiff stated that she had her passport returned by the State Department with a male sex designation “despite the fact that she lives and expresses herself as a woman and her other identification documents correctly have a sex designation of female.”
Executive Order 14168, issued in January of this year, stated that “[e]fforts to eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and well-being.” The order said that female “means a person belonging, at conception, to the sex that produces the large reproductive cell,” and male “means a person belonging, at conception, to the sex that produces the small reproductive cell.” It made no mention of intersex individuals, whose biological and/or genetic features do not fit the male/female sex binary.
The executive order argued that “gender ideology” replaces the “biological category of sex with an ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society to regard this false claim as true.” The order ultimately mandated that the secretaries of state and homeland security and the director of the Office of Personnel Management “require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex,” as previously defined. In other words, nonbinary, intersex and gender nonconforming people can no longer mark “X” on their passports.
The Tuesday ruling granted the plaintiffs’ motion to apply the preliminary injunction to all people who are members of the “X” class and those who want an “M/F” designation that differs from their assigned sex at birth. Judge Kobick stated that “members of both classes have suffered the same injury” and that “the proposed class representatives’ APA and constitutional claims ‘arise from the same event or practice or course of conduct that gives rise to the claims of other class members.'” Finally, she emphasized that the current parties will “fairly and adequately protect the interests” of the proposed classes.
