Transgender and nonbinary plaintiffs had their first day in court Tuesday in their push to reverse the Trump administration’s new policy that requires passports to reflect their sex assigned at birth. Judge Julia Kobick at the Massachusetts federal court in Boston heard close to two hours of testimony before taking the case under advisement.
Ash Lazarus Orr is a West Virginian transgender man and the lead plaintiff. He told GBH News he rushed to try to update his passport in January to get a version with an updated “M” sex marker and his name.
“Traveling with identification that does not match poses a safety risk for transgender individuals, and I simply would not feel comfortable not having accurate identification at this time,” he said.
President Donald Trump told the State Department to change its policy regarding sex markers on passports in an executive order signed the day he was sworn in in January, undoing a Biden-era policy that allowed applicants to select “M,” “F” or “X.” Orr and his fellow plaintiffs are asking the court for a preliminary injunction to block enforcement of the order and require the State Department to continue allowing the “X” designation on passports while the case plays out.
The new policy aligns with the Trump administration’s broader stance that there are only two genders and that a person cannot change their gender.
Last month, the American Civil Liberties Union and the ACLU of Massachusetts sued the Trump administration on behalf of a group of transgender and nonbinary Americans, claiming the policy forces them to “out” themselves to border officials and exposes them to potential violence while traveling.
“This is an unfortunate change in policy that has caused a lot of harm to our plaintiffs and transgender people across the country, “ said Li Nowlin-Sohl, the lead attorney on the case who works on LGBTQ issues at the ACLU.
Nowlin-Sohl says Trump’s policy is a violation of the constitutional right to equal protection, right to travel and the right to privacy.
“There is psychological harm in having an identify marker that is not consistent with how you present to the world,” she said. “Almost all states allow people to have driver’s licenses and birth certificates consistent with their gender identity.”
U.S. Department of Justice Trial Attorney Ben Takemoto, who is defending the Trump administration policy, would not comment after Tuesday’s hearing.
”A passport is, at its core, a letter of introduction in which the issuing sovereign vouches for the bearer and requests other sovereigns to aid the bearer,” he said in his court argument. “The president has been granted the authority by Congress to set these rules and procedures and has done so here. The president doesn’t need to undergo notice-and-comment rulemaking when they issue a rule like this.”
Orr says he has had issues while traveling with conflicting gender identification on his documents, explaining he could not rent a car in Iceland because the male gender marker on his license did not match the female gender marker on his passport.
“I’ve also had trouble with the TSA questioning me intensely and pulling me aside for further interrogation,” he said.
Kobick did not indicate when she plans to issue a ruling.
