A States’ Rights Challenge Has The Best Chance Against Trump’s Trans Passport Ban

Yes, the 10th Amendment, really.

On Monday, the Supreme Court— in the wake of their decision in Skrmetti—ordered appeals courts to review four cases where they had ruled in favor of the trans community. These were cases in which Idaho Medicaid’s gender-affirming surgeries ban, West Virginia and North Carolina’s refusal to provide adequate gender-affirming care coverage to state employees, and Oklahoma’s policy blocking trans people from changing their birth certificates were found to have violated the 14th Amendment’s Equal Protection Clause. Of those four, the one that stuck out the most was the one surrounding Oklahoma’s birth certificates, and with good reason: many states have implemented changes blocking sex marker changes, and recently, so has the federal government.

The case against the federal government, Orr v. Trump, which has resulted in a nationwide injunction, is currently being fought on 1st and 5th Amendment grounds. But what if I told you that the winning argument isn’t about the rights of the people at all, but actually, the rights of the states as outlined by the 10th Amendment?

The Complexity of Birth Certificates

I’ve written about this before, but each state gets to set their own process and criteria for birth certificates, and currently, seven states—Oklahoma, Kansas, Florida, Texas, Indiana, Iowa, and Tennessee—have policies in place blocking gender marker changes. In 2024, a case suing Tennessee for this policy on 14th Amendment grounds against Tennessee’s ban reached the Sixth Circuit Court of Appeals in the case Gore v. Lee. Although the conservative-leaning court sided with Tennessee, it’s imperative to look at why.

The plaintiffs claimed Tennessee’s law on birth certificates violated both the Equal Protection and Due Process Clauses of the 14th Amendment. And the court’s response to the lawsuit can be succinctly summed up by the following excerpts:

On Equal Protection, the court held that “the States have considerable discretion in defining the terms used in their own laws and in deciding what records to keep. Tennessee did not exceed that discretion in distinguishing biological sex from gender identity in its birth certificate records.”

And on Due Process, the court said that “there is no deeply rooted right to a birth certificate matching one’s gender identity. And the Due Process Clause does not require Tennessee to create one. Having decided to generate birth certificates in the first instance, the State has considerable discretion in what they should say: what they should record, what language they should use, and when if at all they should be amended.“

Reading between the lines, the message is clear: the federal government cannot overrule the states on this matter because there isn’t (and there will likely never be) a federal standard for how birth certificates should be handled. As such, other states like California, Oregon, Washington, New York, and Illinois have much more progressive policies allowing self-identification with no surgery requirements. But what does this have to do with the passport case?

More Than Simple Discrimination

As mentioned before, the ACLU has brought the case against Trump’s passport gender change ban on 1st and 5th Amendment grounds. Although there’s currently a nationwide injunction against the policy thanks to friendly District and Circuit Courts, the Supreme Court will likely elect to follow the same logic they followed in Skrmetti, which closely mirrors that of the Sixth Circuit Court in Gore. Needless to say, that case will most likely be lost. But it’s not over just yet.

I believe there’s a much better way to go about this: the 10th Amendment, which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Yes, the 10th Amendment has absolutely nothing to do with discrimination or the trans community. This hypothetical isn’t even remotely related to that, actually. It has more to do with the fact that the federal government is not responsible for creating any data recorded at birth.

That process, with the exception of overseas natural-born citizens, is handled by the states. When you are born, you get a birth certificate, a state-level document, and that birth certificate is then used to establish your existence federally. And when you first apply for a passport, it’s the same thing: data collected by the state you were born in is used to determine the information on your passport. In these scenarios, the federal government relies on the states.

The thing to understand about the sex recorded at birth of any individual is that it has essentially been found to constitute a statement of historical fact. And although that was the logic used in defense of Tennessee’s law, that same statement will also hold true for a state like Washington, which does allow changes based on gender identity. So when Washington makes an amendment, it will be treated as if that were always the case—and by law, it is.

That’s the crux of the argument. Trump, in his passport policy, is overriding the states that do allow birth certificate changes and is choosing to selectively ignore their laws surrounding their definition of sex assigned at birth. And although the federal government traditionally has authority over passports, the Trump administration is drawing an arbitrary line in its passport policy. This is a line they don’t have the constitutional or congressional authority to create, and in doing so, they are intruding on a right that belongs to the states.

This is exposed when considering that trans people who had never gotten a passport but had amended their birth certificates have had no problems obtaining a passport with the correct sex designation. It is only when the US government is aware of the amendment to sex specifically that they choose to invalidate it; that inconsistency in this policy’s application is especially glaring, and the selective overruling of state judgements—doing so only when they know of it, showing the problem is with the existence of the judgement and not the gender marker itself—certainly doesn’t help the Trump administration’s case.

An Unforeseen Avenue of Attack

A ban like this must, at the very least, survive rational-basis review—that is, whether or not it pursues a legitimate government interest and achieves that in a way that isn’t arbitrary or irrational. In this case, issuing a passport with a sex marker that doesn’t reflect state-level IDs can cause serious complications, both for the individual and the government. As such, there is no reality where this is something that benefits the government, and like I mentioned before, the line drawn is completely arbitrary. When measured against state’s rights, this policy may not stand.

Of course, like any lawsuit, standing must be established, and that’s exactly why a state is in such a good position to make this claim. States that allow gender marker changes are being harmed; after all, the laws that legalised or streamlined those changes were created to help the transgender community. And in forcing individuals who take advantage of them to have mismatched IDs, the federal government is effectively weakening the very foundations on which those laws were passed. Some members of our community may even choose to hold off on changing their gender markers out of fear of potential complications. I myself was actively urged by my family to wait before filing my gender change because of that threat, resulting in me waiting a month to file.

Additionally, the laws of the 43 states that do allow amendments are being delegitimised when compared to those of the 7 that don’t. This is because on the federal level, all the birth certificate–related judgements of those 7 are recognised while the same cannot be said of the other 43. A case for Equal Protection violations of the states is also possible here.

Essentially, the federal government is presenting two options to the states: go by our definition of sex—something that historically and constitutionally has been defined by you—or deal with the increased scrutiny of some of your constituents’ documents that comes with disagreeing with our position. At this point, this isn’t just a violation of the rights of transgender Americans, but of states’ rights. The federal government is exceeding its authority, and that’s an argument even the most conservative justices will be willing to work with.

Plus, tying passport gender markers to birth certificates wouldn’t be permanent; self-ID should also be possible under this framework if the president is willing to allow it. According to the Sixth Circuit Court, determining gender markers isn’t a power delegated to the United States, and therefore it must belong to the states and/or the people. There exist no grounds on which a state with restrictive trans policies would be able to sue, and as such, that possibility should still be protected under a more progressive president.

While this may not overturn the policy entirely, it still presents a way to severely weaken it. But unlike other lawsuits, this one requires action at the state level, as it will only be legally viable if a state is willing to take it on. I’m planning on reaching out to the office of California Attorney General Rob Bonta—the state I was born in—to attempt exploring the feasibility of a lawsuit on these grounds. If you’re from another state and think your AG would be open to this idea, I implore you to reach out to your AG and link this article. If any argument stands a chance against Trump’s transphobic policy, it’s this one.