Under Trump’s Passport Policy, the State Department Must Assume Every Applicant is Trans. Yes, Really.

In order for the trans passport ban to work, State Department employees have been instructed to consider every American trans until proven cis. That’s a problem.

Photo by Tony Webster // Wikimedia Commons

Earlier this month, the Supreme Court allowed President Trump to enforce the provision in Executive Order 14168 banning gender marker changes on passports. Previously, a class-wide injunction had ordered the State Department to continue the Biden-era policies allowing self-ID and ‘X’ markers provided applicants signed a form, but as a result of the 6–3 ruling, things have gotten much more complicated not only for trans people who already hold passports but also for anyone—cis or trans—who wants to replace their passport or get one for the first time.

When it comes to passports that have already been updated—especially those issued under the injunction—the largest concern is revocation. Within a week of the ruling, the State Department updated its website to include language implying it could invalidate trans people’s passports. And although this was removed a few days later, similar language reappeared on the site not long after. This wasn’t particularly surprising: previously, the Trump administration had indicated in court filings it was interested in ‘correcting’ passports that don’t display a person’s ‘biological sex.’

However, as I stated two weeks ago, there are a few things that make it much less likely that the State Department will actually be able to follow through on these threats. First of all, doing so would be expensive: the State Department is primarily fee-funded, which means their funding is usually tight. Simply put, the department may lack the ability to pay for an operation like this. Moreover, considering the logistical and bureaucratic burden that would result from potential revocations, it may not be possible for this to be done at all.

Then there’s the inevitable administrative and legal challenges. Under federal regulations, anyone who’s had their passport revoked can appeal by scheduling an administrative hearing (which generally must be held within 60 days), and this system is not equipped to handle the sheer number of appeals these actions would bring. Additionally, any hostile action towards trans people’s passports will surely be challenged in court.

That said, the future for those—trans or not—who are seeking to get, replace, or renew a passport is far more vague. As part of Trump’s policy, the State Department must ‘adjudicate’ the ‘biological sex’ of every passport applicant. While the official details of this adjudication process aren’t public, how it works has become more and more apparent as time has gone on.

Usually, when applying for a passport for the first time, an applicant must submit a US birth certificate, Consular Report of a Birth Abroad (CRBA), or Certificate of Naturalization, and the information on the passport will match what is on the submitted document. When replacing a passport, the information will be the same as it was on the applicant’s most recent passport. Of course, there is a notable exception to this: name changes.

If an applicant wants a name different from what’s listed on the submitted evidence to appear on a passport, they must bring evidence of the change, and most importantly, they must request it themselves. The State Department doesn’t conduct extensive searches of all federal records, nor does it mandate citizenship evidence be changed prior to requesting the name change. And once the name is changed, that’s it; this process doesn’t need to be repeated.

However, when it comes to gender markers, the State Department has adopted an entirely different policy. Instead of the marker reflecting what’s on the applicant’s birth certificate or most recent passport, employees have been instructed to check, at the very least, all previous passports, past and present Social Security records, and the submitted birth certificate (both for conflicts with other records and signs of amendment). If they find anything even remotely suspect (such as a birth certificate being labelled ‘AMENDED’), they will request more documents in order to prove the applicant’s ‘biological sex,’ like their hospital birth records.

But this begs the question: how do they know to do this? Well, they don’t. Actually, the State Department has no way of knowing which applicants they need to ‘adjudicate’ biological sex for. And given that there are no known instances of trans applicants slipping through the cracks, it’s clear that the policy’s effectiveness hinges on subjecting all applicants to these extensive checks.

Cis applicants can and will get caught in the crossfire. The Trump administration treats every birth certificate and passport with suspicion and will deny the validity of documents if there’s any indication they’ve been amended—regardless of what was changed. If the SSA initially recorded an applicant’s sex incorrectly or if an applicant’s birth certificate was amended for any reason, the State Department will demand more information, bringing delays and forcing them to submit private records.

Most crucially, they’re not doing it to see if someone is trans; they’re doing it to make sure they aren’t. In this ‘trans until proven cis’ system, every American is trans by default, and only with perfectly matching records can this assumption be overturned. For many trans people as well as some cis people, it’s possible for this to result in a scenario where the State Department cannot get a definitive answer, and if that happens, their passport application will be denied.

Despite the glaring issues concerning the State Department’s adjudication process, it actually isn’t being challenged in court. Right now, only the existence of the policy itself is being litigated, and because of that, the Supreme Court has utilised the precedent established in the Zivotofsky cases to give Trump a way out via ‘foreign policy’ grounds.

For reference, the Zivotofsky cases revolved around the Obama administration’s refusal to print either “Jerusalem, Israel” or just “Israel” as the place of birth for applicants born in Jerusalem. In the second case, Zivotofsky v. Kerry (2015), the court held that the president has near-exclusive authority over what is printed on passports, and as an executive agency, the State Department cannot be compelled to print a place of birth it doesn’t otherwise recognise.

Under this framework, it’s likely that the Trump administration cannot be forced to allow ‘X’ gender markers on passports given they aren’t printed for any reason to begin with. But this doesn’t extend to the other two markers: the State Department can and does print ‘F’ and ‘M’ on passports. It’s only deciding not to in some cases after explicitly searching for reasons not to. In Zivotofsky terms, today’s policy would be as if the State Department did print “Jerusalem, Israel” on passports but only for naturalised citizens and not for those with CRBAs.

It’s not about what the State Department prints—which is what Orr v. Trump is challenging—it’s about how the State Department determines what it will print. Can the Trump administration legally conduct these extensive checks, and even if it does, can it conduct them without cause? Can the SSA provide gender information (which isn’t ever used to prove identity and isn’t considered a ‘core’ identity field) to the State Department under the Privacy Act of 1974 (5 USC § 552a)? Can the State Department treat legally issued birth certificates as invalid in certain cases if it otherwise doesn’t? Can it adjudicate a ‘historical fact’ of birth that conflicts with state records given that the states have authority over birth certificates? And most importantly: can it assume all passport applicants are ‘trans until proven cis,’ and is it reasonable to do all these other things in pursuit of proving an applicant isn’t trans?

None of these questions have been answered, and they need to be. Because currently, the State Department has free rein over this ‘adjudication,’ and as a result, all Americans are being indiscriminately subjected to extensive checks with little transparency. While Trump’s passport policy may not be overturned in full, limiting the State Department’s adjudication process (such as by tying it to birth certificates) can severely weaken its impact. That alone is worth fighting for.