Trump’s Transgender Passport Policy Faces Skeptical Judge (1)

A Massachusetts federal judge grilled the Justice Department Tuesday on what scientific data or alternatives the Trump administration consulted before implementing a policy of issuing passports designating a person’s sex as either male or female, based their birth certificate.

While courts are supposed to be “quite deferential” to the policy decisions of agencies where their decision making was reasoned, Judge Julia Kobick said, she was unimpressed with the government’s claim that the record isn’t developed enough to say what the administration consulted before implementing the executive order.

“You’ve got to give me something, or else I’ll assume there’s nothing,” she said.

President Donald Trump changed the State Department’s policy regarding sex markers on passports in an executive order signed the first day of his term, undoing a Biden-era order that allowed applicants to select “M,” “F,” or “X.” The new policy comports with the Trump administration’s broader belief that there are only two sexes, which aren’t changeable.

A group of transgender Americans sued the administration, claiming the policy forces them to “out” themselves to border officials and exposes them to potential violence while traveling. They’re asking the US District Court for the District of Massachusetts for a preliminary injunction to block enforcement of the new policy and require the State Department to continue allowing the “X” designation on passports while the lawsuit plays out.

Benjamin Takemoto, a Justice Department attorney, said the court has a “narrow role to play” since the government’s action is “presumed to be valid.”

“The president has been granted the authority by Congress to set these rules and procedures and has done so here. The president doesn’t need to undergo notice-and-comment rulemaking when they issue a rule like this” Takemoto said.

“That’s a very sweeping argument that when a president issues an executive order” and an agency implements it, “that that insulates the agency from any kind of” Administrative Procedure Act claim, Kobick said.

Kobick took the matter under advisement, with no indication of how soon she plans to rule.

Policy Justification

Li Nowlin-Sohl, a senior attorney for the American Civil Liberties Union, said the government “needs an exceedingly persuasive justification for the policy” since it makes a classification on the basis of sex and is “inexplicable to anything other than animus.”

The government has “failed to identify any legitimate government interest,” Nowlin-Sohl said.
But the government’s justification of “government-wide uniformity in the definition of sex” appears to satisfy precedent around how governments can defend policies against claims that their arbitrary or capricious, Kobick said.

Kobick asked Nowlin-Sohl to address the government’s argument that “to find a policy is motivated by animus, a court needs to conclude that it’s not explicable by anything else.”

Nowlin-Sohl said courts actually have two paths to conclude that a policy doesn’t survive a rational basis review: either they can find it’s inexplicable by anything other than animus, or that there’s no rational relation to a legitimate state interest. “We think both are satisfied here,” Nowlin-Sohl said.

Takemoto denied that claim, saying, “Taking away transgender people’s rights, that’s not what this policy is designed to do.”

Lead plaintiff Ash Lazarus Orr, a transgender man, said in a press conference after the hearing, “This is about regaining bodily autonomy for trans people.”

Orr said he hasn’t been able to “travel internationally for gender-affirming medical care” since the implementation of the executive order. He said he’s had complications renting a car and dealt with intensive questioning by TSA due to his passport stating he was a different sex than his driver’s license.

Covington & Burling LLP also represents the plaintiffs.

The case is Orr v. Trump, D. Mass., No. 1:25-cv-10313, hearing 3/25/25.