• Federal Appeals court blocks Trump based appeal, aimed to DENY Transgender and non-binary Passports,  
• Upholding a preliminary injunction against a policy requiring documents to reflect a person’s sex at conception. 
• 1st U.S. Circuit Court of Appeals Trump admin failed to argue policy based on law violation 
• Failed to “to engage meaningfully” analysis 
• “Unconstitutional animus toward transgender Americans.” 

As of today: State Department is not processing new applications for an X gender 

• Existing X gender passports remain valid until their expiration date and will not be confiscated by Transportation Security Administration officials. 

The 1st U.S. Circuit Court of Appeals upheld a preliminary injunction against a Trump administration policy that aimed to deny transgender and non-binary Americans passports reflecting their gender identity, requiring instead that documents reflect an individual’s sex assigned at birth. The court’s decision marks a significant victory for transgender and non-binary individuals, reinforcing their right to accurate identification documents. The ruling ensures that the State Department cannot enforce this policy while the lawsuit, Orr v. Trump, continues, allowing transgender and non-binary Americans to obtain passports with sex designations consistent with their gender identity or an “X” gender marker. 

Court Ruling and Legal Background 

In an order issued by a three-judge panel of the 1st U.S. Circuit Court of Appeals, the court stated that the Trump administration had failed to demonstrate that the policy does not violate federal law or that the government would be “irreparably injured” if the policy were enjoined. The judges further noted that the administration failed “to engage meaningfully” with an earlier district court analysis by U.S. District Judge Julia E. Kobick, who concluded that the passport policy is rooted in an “unconstitutional animus toward transgender Americans.” 

In April 2025, Judge Kobick, a Biden appointee, issued a preliminary injunction blocking the State Department from denying six transgender and non-binary Americans named in the Orr v. Trump lawsuit passports with sex designations consistent with their gender identity. Kobick wrote that the administration had failed “to demonstrate that its actions are substantially related to an important governmental interest.” In June 2025, she expanded this injunction to include all transgender Americans seeking passports that match their gender, granting the case class action status. 

The Trump administration’s policy stemmed from an executive order signed by President Donald Trump on January 20, 2025, during his first hours back in office. The order directed the Departments of State and Homeland Security, as well as the Office of Personnel Management, to mandate that government-issued identification documents, including passports, visas, and Global Entry cards, reflect an individual’s sex assigned at birth rather than their gender identity. This policy reversed a previous State Department practice that allowed U.S. passport holders to self-select their sex designations, including an “unspecified” gender marker denoted by the letter “X,” which was introduced in 2021 under the Biden administration. 

As a result of the executive order, the State Department suspended processing applications for new gender marker updates in January 2025, affecting transgender and non-binary individuals seeking to align their passports with their gender identity. 

Impact on Transgender and Non-Binary Americans 

The court’s ruling, effective immediately, ensures that transgender Americans submitting passport applications will no longer receive passports listing their sex assigned at birth. Existing “X” gender passports, held by approximately 68,000 Americans according to the Williams Institute, remain valid until their expiration date and will not be confiscated by Transportation Security Administration (TSA) officials. 

Li Nowlin-Sohl, a staff attorney for the ACLU’s LGBTQ & HIV Project, which represents the transgender and non-binary plaintiffs in the Orr v. Trump lawsuit, stated on Thursday, September 4, 2025, that the government’s attempts to deny these passports have “no basis in law or policy.” Jessie Rossman, legal director at the ACLU of Massachusetts, emphasized, “The ability to access accurate identification is core to the safety and wellbeing of all people in this country.” 

However, uncertainties remain. The State Department has not yet clarified how it will handle passport applications from intersex individuals. According to Advocates for Trans Equality and Lambda Legal, if the State Department cannot determine an individual’s sex assigned at birth, it may freeze applications while requesting additional data. For transgender individuals requesting name changes on passports, their documents may still reflect the sex assigned at birth. Additionally, if an individual’s documentation is mixed—such as a binary gender passport and an “X” gender state driver’s license—the gender marker on their birth certificate will determine the passport’s designation. The State Department can cross-reference sex assigned at birth with the Social Security Administration to ensure consistency. 

Implications and Recommendations 

The legal landscape is evolving rapidly, and the Trump administration is likely to appeal the ruling, meaning the case may return to court. While this decision is a significant victory against discrimination, transgender and non-binary individuals should carefully consider their circumstances before applying for or renewing a passport. According to guidance from a U.S. passports webinar organized by Lambda Legal, summarized by an LGBTQ travel expert tracking the impact of anti-trans laws, individuals whose passports are expiring, have expired, or who have never had a passport may benefit from applying immediately, especially with expedited processing, to secure a passport with the correct gender marker before a potential appeal. However, there is no guarantee of success due to the ongoing legal uncertainty. 

For those considering international travel, the ruling provides temporary relief, but the risk of future policy changes remains. The expert advises that whether to apply for a passport immediately depends on individual risk tolerance and urgency, such as upcoming travel plans or the need for updated identification. 

Key Takeaways 

• As of January 2025, the State Department required passport sex designations to align with the sex assigned at birth, halting new applications for “X” gender passports. 
• Approximately 68,000 Americans currently hold valid “X” gender passports, which remain valid until their expiration and will not be confiscated by TSA officials. 
• Transgender individuals can request name changes on passports, but the gender marker may reflect the sex assigned at birth. 
• Mixed documentation (e.g., a binary gender passport and an “X” gender driver’s license) will default to the gender marker on the birth certificate, cross-referenced with Social Security Administration records. 
• The State Department’s handling of intersex individuals’ applications remains unclear, with potential delays due to requests for additional data. 
• Given the likelihood of an appeal, individuals should weigh the risks and benefits of applying for a passport now, considering expedited processing if feasible. 

Sources 

• https://www.ca1.uscourts.gov 
• https://www.ca1.uscourts.gov/judges 
• https://www.state.gov 
• Li Nowlin-Sohl, a staff attorney for the ACLU’s LGBTQ & HIV Project 
• https://www.whitehouse.gov 
• https://pixabay.com/illustrations/drag-king-pink-hair-pink-glasses-7714937/

Author, Ryan Bridglal, 09/08/2025

 

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