The Department of State’s Website Is Now Threatening To Revoke Trans People's Passports

After being handed a win by the Supreme Court, the Trump administration wants to go after passports that have already been issued.

Photo by Tony Webster // Wikimedia Commons

Note: on Monday, November 17th, the State Department updated its website and walked back this threat. If you want more on this update, you can find that article here.

Last week, the Supreme Court sided with the Trump administration and stayed the injunction allowing trans people to obtain passports that align with their gender identities. Up until that point, the Department of State had been forced to update gender markers (including to ‘X’) as it had been doing so before Trump entered office, but as a consequence of the Supreme Court’s ruling, Trump’s policy will most likely be allowed to stay in place for the remainder of his term.

Initially, the US’ passport website only displayed a message stating the page surrounding gender markers would be updated in accordance with the ruling, and today, those changes were made. On the new page, the previous guidance on how to change gender markers has been removed, and in its place is a statement that passports will only be issued “with an M or F sex marker that matches the customer’s biological sex at birth.”

While this change was expected, another was not: the Q&A section that was added as a result of the Executive Order was also modified, this time in a much more concerning way. Specifically, the first question, which pertains to the validity of already issued passports, was changed from “Yes. Your passport will remain valid until its expiration date” to “A passport is valid for travel until its date of expiration, until you replace it, or until we invalidate it under federal regulations.”

The new language found on the Department of State’s website, shown above.

For those that have been following the case, the Trump administration wanting to revoke trans people’s passports is nothing new. As part of its appeal to the First Circuit Court—which was eventually denied—the Trump administration hinted at doing this, saying in its filing that the injunction should be stayed because, “​​if the government prevails in this case and the Department proceeds to revoke and replace passports issued pursuant to the preliminary injunction, the Department will incur additional administrative costs.” However, this language seemed to imply that the revocations will only be considered after a full victory in the case, which can take years.

Now, it appears the Trump administration may not want to wait that long. Moreover, because the Department of State doesn’t make a distinction between the passports that were issued before Trump even entered office and the ones issued pursuant to the injunction, it’s possible that all passports will eventually be targeted. But can that actually be done? Can the Department of State revoke the passports of an entire subset of people? It’s complicated.

First and foremost, there are the federal regulations surrounding passport revocation. Under 22 CFR § 51.62 (a)(2), passports can be revoked if they were “illegally, fraudulently or erroneously obtained from the Department; or was created through illegality or fraud practiced upon the Department.” Because the passports were legally issued through a court injunction, they likely do not fall under this category, and even when assuming that they somehow do, there are still more problems.

Perhaps the largest problem is monetary. The Department of State is primarily fee-funded, which means their budget is somewhat limited. So, considering labor costs, printing costs, and shipping costs, revoking passports on such a massive scale is certain to be both a logistical and costly nightmare. Moreover, under 22 CFR § 51.70, any person whose passport has been revoked can appeal and schedule a hearing, further burdening federal resources.

Of course, there’s also the possibility that only passports with an ‘X’ marker will be invalidated, and if they try it, this will most likely be preceded by the software used by the Department of State to keep track of passports being updated to only handle ‘M’ and ‘F’ gender markers. A similar change was made to the Department of Homeland Security’s Advanced Passenger Information System last month.

That said, any invalidations will no doubt be subject to a lawsuit. While the Supreme Court has recognised Trump’s discretion in setting passport policy, that discretion is not retroactive, and it certainly doesn’t authorise the massive review that such invalidations would require. Additionally, because some people will miss out on travel plans as a result of abruptly losing their passports, a challenge to something like this will be considerably stronger than what was argued before the Supreme Court.

While it’s not certain that the Department of State will actually follow through on this threat, the website isn’t a good sign. At this point, we can only hope it doesn’t come to that.