ACLU Makes New Play In Response To Trump Admin’s Discriminatory Passport Policy

October 7, 2025 Margaret Hetherman

Legal challenges continue around Trump’s efforts to require passports to only note sex designated at birth.

Featured Image: photo via Getty Images, Credit: MistikaS

On Monday, attorneys with ACLU and Covington & Burling LLP made a move on behalf of transgender, nonbinary, and intersex Americans, challenging the Trump Administration’s attempts to require that passports only show sex designation assigned at birth. They asked the U.S. Supreme Court to reject the Trump administration’s efforts to stay a preliminary injunction in Orr v. Trump. “We are asking the Supreme Court to reject this request for a stay and preserve the injunction issued below so our clients will be spared profound disruption and distress while their case proceeds.”

Under Biden administration policy, passport applicants could select markers that reflected their gender identity. A third gender marker – “X” – for nonbinary applicants, was made allowable too. The legal battles underway are a response to current Trump Administration ideology that was made clear with January’s Executive Order, indicating intent for U.S. policy to only “recognize two sexes, male and female.”

As part of that EO, the State Department was directed to “require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex.”

Civil rights groups, including the ACLU and LAMDA Legal, set to battle with Orr v. Trump that kicked off in February 2025. Ashton Orr, a transgender person, challenged the policy in federal court in Massachusetts, along with other transgender, gender-nonconforming, nonbinary, and intersex (TGNCNBI) plaintiffs.

Let’s break down what’s happened since:

On June 17th, a federal court temporarily blocked enforcement of the new restricted passport policy while the case proceeded; on July 22nd, the government released guidance on Sex Markers in Passports, extending “preliminary relief” (using M, F, or X was still allowable for current passport holders); on September 4, 2025, a federal appeals court ruled that the temporary relief stays in effect while the case is heard on appeal. Then, the Trump’s Administration asked the Supreme Court to let it enforce its desired passport policy anyway, which brings us to today: Attorneys representing transgender, gender nonconforming, nonbinary, and intersex folks asked the Supreme Court to reject that request (to “stay a preliminary injunction”) – they are asking to continue to keep things as is until a further decision is made in Orr v. Trump.

As of today, per LAMDA guidance:

“U.S. passports and CRBAs with gender markers reflecting the holder’s gender identity— including those with an X marker — remain valid until they expire or are replaced.” But no new X designations are being issued; gender marker changes to reflect a person’s gender identity are no longer allowed; and renewals, or reissuance (to replace a lost or damaged passport) of passports revert to sex assigned at birth.

For some historical context, as noted in the new filing, for the first two hundred years of U.S. history, passports did not have sex markers. The first passports to feature sex markers only appeared in 1976; and in 1992, applicants were permitted, for the first time, to choose a sex marker different from their sex assigned at birth.

“Plaintiffs in this suit seek the same thing millions of Americans take for granted: passports that allow them to travel without fear of misidentification, harassment, or violence,” Monday’s legal filing reads.