The United States Supreme Court last week allowed the implementation of a discriminatory Trump administration policy requiring new passports to reflect an individual’s sex assigned at birth.
The policy follows President Trump’s executive order instructing federal agencies to recognize only two sexes, male and female, and declaring these fixed at birth. The US State Department subsequently stopped processing passport applications for updated or nonbinary gender markers that do not match a person’s sex assigned at birth.
This approach reverses decades of progress allowing passports to more accurately reflect an individual’s gender identity. US passports only began including gender markers in 1977. Since 1992, the State Department had permitted individuals to update their gender marker with proof of gender reassignment surgery, and in 2010 it relaxed that onerous surgical requirement to allow updates with proof of “appropriate clinical treatment for gender transition.” In 2022, the State Department created an “X” gender marker for nonbinary individuals and others who did not want their documentation to classify them as male or female.
Requiring passports to reflect sex assigned at birth rather than gender identity does not serve any compelling purpose, and it forces transgender and intersex individuals to carry passports that may be inconsistent with their other documentation and the way they identify and present themselves in the world.
It also potentially puts them at risk of harassment or violence when they travel abroad. Advocates for Trans Equality’s recent survey of 84,000 transgender adults in the United States, for example, found that 22 percent reported harassment, assault, or denial of services when their identification did not match their gender expression.
The United Nations Office of the High Commissioner for Human Rights and other experts said that a person should be able to assert their own gender identity, including a nonbinary identity, for use on identification. For this reason, many countries have recently reflected gender identity or allowed nonbinary gender markers on legal documentation, including passports.
The Trump administration’s policy strips away another basic protection for transgender and intersex people. It also conveys the dangerous idea that requiring transgender and intersex people to share their sex assigned at birth is harmless. Lawmakers should swiftly act to remedy this violation of the rights to privacy and nondiscrimination and restore the ability to travel freely and safely regardless of gender identity.