A federal appeals court Thursday rejected the Trump administration’s effort to require passports to reflect bearers’ biological sex rather than their declared “gender identity.”
A lower court previously blocked the administration from enforcing that policy, saying it would inflict “irreparable harm” and increased risk of “discrimination, harassment, or violence” on “all transgender and nonbinary people.”
Now, a three-judge panel of the 1st Circuit Court of Appeals has upheld that order, citing “‘uncontroverted evidence of the harms that transgender and nonbinary people face’ if required to use” passports aligning with their actual sex.
The policy in question stems from an executive order President Donald Trump issued directing government agencies “to require that government-issued identification documents” reflect sex “at conception.”?
That order amended a previous policy that had allowed passport holders to self-select an “M,” “F,” or “X” marker based on their perceived gender identity, changing the policy to require individuals to select between “M” and “F” based on their actual sex.
In February, the American Civil Liberties Union and others filed a lawsuit on behalf of several “transgender” individuals who felt they were unable “to obtain passports that match who they are.” They argued that the sex-at-birth policy violated their constitutional rights to free expression, due process, and equal protection, and that it violated the Administrative Procedure Act, the law that governs how federal agencies create new rules.
In April, a district judge issued a preliminary injunction preventing the government from enforcing the policy against the individuals who brought the case. In June, she extended that order to apply to all transgender and nonbinary people seeking to obtain, update, or replace passports.
The government appealed those orders to the 1st Circuit—and asked the court to allow it to enforce its policy while it appealed. But in its Thursday ruling, the 1st Circuit rejected the government’s request to continue enforcement, citing its failure to show it was likely to win its appeal.
“We’re thankful the court rejected this effort by the Trump administration to enforce their discriminatory and baseless policy,” Li Nowlin-Sohl, staff attorney for the ACLU’s LGBTQ & HIV Project, said in a statement.?
“People across the country depend on identity documents that accurately reflect their identity—who they are in their workplaces, their schools, and their communities. The administration’s attempts to deny that right to transgender, nonbinary, and intersex people has no basis in law or policy, and we’ll continue to fight this policy until its [sic] permanently defeated.”
The case stays at the 1st Circuit for now while the court reaches a final decision on the lower court’s orders in the case.