The Trump Administration’s New Policy Against Passports With ‘X’ Gender Markers Also Affects State IDs. That Matters.

After changing its systems to no longer accept 'X' as a valid gender, the Trump administration is vulnerable to a technicality in US customs law. Yes, really.

Back in July, Customs and Border Protection, citing compliance with Trump’s Executive Order 14168, announced that its Advanced Passenger Information System (APIS) would stop recognising ‘X’ gender markers effective October 14th. In essence, this new rule, which applies to international flights, would force airlines to adjudicate a passenger’s sex to either ‘male’ or ‘female,’ even when their IDs have an ‘X’ marker.

While this policy wouldn’t outright invalidate US passports with an ‘X’ marker, it will make it much more difficult to use one regardless of whether the passport is American or not. By forcing an ID mismatch, non-binary individuals will be at risk of increased scrutiny, extra checks, and even being denied boarding or entry into the United States. So given the glaring consequences this move will have, can Trump even be stopped from doing this?

A Deliberate Move

When Oregon—the first state to recognise non-binary people on IDs—started issuing IDs with an ‘X’ marker in 2016 following a lawsuit, the APIS system had already been accepting gender markers other than ‘M’ or ‘F’ for the past 3 years, but not explicitly. It was updated to handle ‘M,’ ‘F,’ or ‘any gender code included on a Government-issued ID’ without returning an error. Even during the first Trump administration, that remained the policy, allowing non-binary people from other countries to visit the United States without issue. And when the Biden administration began issuing passports with an ‘X’ marker in 2022, non-binary Americans were able to use their new passports without issues.

However, as part of his crusade against ‘gender ideology,’ Trump has increased his attacks on non-binary people dramatically. He ordered the government to recognise two ‘immutable sexes,’ ‘male’ and ‘female,’ a move that has reverberated across the federal government. Within days, the option for an ‘X’ marker on passports was removed entirely, a policy that is currently blocked pending a Supreme Court appeal. Now, in a deliberate move, the Trump administration has chosen to make it harder to use the passports courts are currently forcing them to issue.

I wish I could say that because this new policy would make it harder for non-binary Americans and foreigners alike to use their legally issued passports, it’s vulnerable to a winning lawsuit. Unfortunately, courts have long recognised the federal government’s broad discretion in scrutinising passports. That said, there may be another way.

A ‘Foreign Area’

Under US law, the APIS system is used to collect passenger data from international flights departing from or arriving in the United States. Well, not exactly. It’s used for flights to and from a ‘foreign area,’ and surprisingly, that doesn’t necessarily mean an international flight. There are actually three cases where domestic flights count as international for the purposes of Customs and Border Protection enforcement: Guam, the Northern Mariana Islands, and the US Virgin Islands. In the case of the Virgin Islands, this is important enough to warrant a specific section of federal regulations.

Strangely, this is because these three aren’t part of the US Customs Territory—as defined in General Note 2 of the Harmonized Tariff Schedule. However, they are considered domestic for ID purposes, creating a scenario where the information on a state-issued, REAL ID-compliant identity document can be used when booking a flight the CBP considers to be international. Interestingly, only flights back to the 50 states or Puerto Rico are counted for this purpose, and so when leaving those three territories, you must go through customs.

Normally, this information would be completely useless, but it’s crucial here. It means that the APIS system takes information from state-issued IDs, many of which allow non-binary people to select an ‘X’ marker. Here’s a map of all the states that currently recognise these markers:

For sources, tables, and maps for other issues, head to Transitics’ CATPALM page.

In reshaping its system to Trump’s political whim, the Department of Homeland Security isn’t just overruling passports (which it may be able to do), but also half the country. And thanks to, of all things, the REAL ID Act, documents from states can only be rejected if they don’t comply with the act’s standards. So by refusing to accept state IDs into its system, the federal government is exceeding its authority.

Although it’s certainly a technicality, technicalities matter. Under the Administrative Procedure Act, which is central to the case against Trump’s passport policy, overruling the states on the IDs they issue abuses the discretion afforded to the DHS. And unlike the Equal Protection Clause, these are grounds the Supreme Court has still shown a willingness to accept.

Will the policy fall? It’s hard to say. But it’s a lot weaker than you’d think.