The Politics of Passports

Three weeks before the 2024 presidential election, my spouse and I flew to Colombia to celebrate our wedding anniversary. Foreboding accompanied me. I worried that, should Trump win, things could get bad for transgender people very quickly. 

I fell instantly and profoundly in love with Colombia, and even before we left for home we started to consider moving there. Camilo, our Colombian birdwatching guide, prophesied our future. He proclaimed, “No one will be looking at you all the time. You will make new friends, get involved, and spend the rest of your life in another culture. You will be happy.” 

No one will be looking at you all the time. 

The constant anti-trans rhetoric in the United States had exhausted and demoralized me. Immediately after the election, I began exploring the logistics of leaving the United States. It’s not just me. Transgender people have been advised to move from red states to blue if they want to and can, or even to leave the country.

Leaving the country requires a valid passport, and I feared the new administration would change the requirements. During his candidacy, President Trump advocated an end to “the left-wing gender insanity,” including a promise to ask Congress to pass a bill establishing that the only genders recognized by the U.S. government are male and female, as assigned at birth. 

In response, transgender people were advised to update their legal documents to reflect their gender identity while they still could. (Some transgender persons never updated a passport because it was obtained only after transitioning.) At the time, the choices of gender markers on passports were “M”, “F” or “X.” Unfortunately, even updated documents may not provide permanent protection, and may even have unintended, dark consequences. 

President Trump wasted no time in taking steps to fulfill his promises. On day one, Trump signed an Executive Order proclaiming that the policy of the United States is to recognize only two unchangeable sexes, male and female. Sex is now defined by the size of one’s reproductive cells (apparently referring to eggs/sperm.) The Executive Order also provides that the Secretaries of State and Homeland Security, and the Director of the Office of Personnel Management, shall implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex, as so defined. 

Passport requirements can be changed very quickly. No act of Congress is required. This authority has been delegated by the President to the Secretary of State, who can require that all passports reflect either a “M” or “F” gender, as defined by the policies expressed in the Executive Order. This change would prohibit updates to gender markers even if based on state court orders, or the use of the “X” marker. (Gender markers could previously be changed on passports by simply checking a box requesting a change and selecting an “M”, “F” or “X”.)

This new gender binary policy, once effectuated by the Secretary of State, would of course, apply to new applications. Those who had not updated their passports could still travel internationally (or domestically in lieu of obtaining a REAL ID), although the mis-matched documents might cause delay or confusion at borders. An official could question why a person who physically appears as a woman has a passport that says, “M”, or vice-versa, a discrepancy that could be exacerbated by any language barriers. Unfortunately, the mismatch could also put transgender persons in real danger. Mismatches on identification documents have resulted in verbal harassment, denial of benefits or service, being asked to leave, and assault.

In addition, many countries’ immigration policies rely in part on a valid passport. For those seeking to establish permanent residency or citizenship in a new country, a prohibition on updating or maintaining an updated gender marker could reach far beyond the borders of the United States.  

It is less clear what would happen where passports have already been updated. The law generally is reluctant to retroactively take away rights or benefits that have been granted. Those passports may remain valid, at least until they need to be renewed. This appears to be the position the new administration is taking for now.

This position has yet to be reduced to written policy and may be changed as the Secretary of State revises the passport rules. The new administration may later seek consistency across all federal documents, including updated passports, as part of its anticipated future actions against transgender citizens. It may also wait for friendly states work out the logistics of revocation of updated IDs such as driver’s licenses before taking such action at the federal level.   

If the new administration does address updated passports in the future, they could be revoked for being inconsistent with a new gender marker policy, with or without providing a path for the holder to change the gender marker back to its original designation. 

Should anyone doubt whether the new administration would consider revoking an entire category of valid passports, the incoming administration has issued an Executive Order which proposes that birthright citizenship does not extend to all children born in the United States. Although such children are citizens by birth under the 14th Amendment of the Constitution and case law interpreting it, President Trump’s Executive Order directs that no department or agency of the United States government shall issue documents recognizing the citizenship to some children born of undocumented mothers, or accept documents issued by State, local, or other governments or authorities purporting to recognize the citizenship of such persons. It is not hard to imagine that same approach being used against transgender or non-binary citizens. 

Passports can be cancelled for limited reasons, but can be revoked under broader circumstances, including for the same reasons that an initial passport application can be denied. Beyond that, passport revocation may raise constitutional concerns. 

The outcome of cases challenging the constitutionality of passport revocation due to gender markers is unclear but will turn on what standard of proof is applied. Neither the applicable statute, nor the regulation, specifies the standard of proof, leaving resolution to the courts. Unlike interstate travel, which is enshrined in the Constitution, the right to international travel has been described instead as a liberty interest protected under the Fifth Amendment and afforded less protection.

A 2021 case from the U.S. Court of Appeals, Tenth Circuit (Maehr v. United States Dep't of State (10th Cir. 2021) 5 F.4th 1100) examined the standard of proof for passport revocation due to tax delinquency. The case explained that if a liberty interest protected by the Due Process Clause is deemed “fundamental,” it is reviewed under strict scrutiny, meaning any infringement must be narrowly tailored to serve a compelling state interest. On the other hand, a non-fundamental liberty interest generally receives rational basis review, which demands only that a governmental infringement be rationally related to legitimate government interests. The rational basis test is such a low hurdle that the opinion’s author described it as a “cavernous abyss.” 

The Maehr court acknowledged that the Supreme Court has not clarified the standard to be applied to revocation of passports but has been moving away from finding any fundamental right to international travel. Maehr concluded that international travel is not a fundamental right subject to strict scrutiny. The court did, however, articulate a thoughtful argument for using an intermediate level of scrutiny, writing, “… if I imagine the [American] citizenry entirely deprived of the right of international travel and the borders closed to all, it would be impossible to consider our country truly free.” As neither party had introduced intermediate scrutiny, the court was left to apply the less-challenging rational basis standard. The intermediate scrutiny standard was based in part on abortion case law; it is unlikely to be adopted or extended under the current Supreme Court. The Ninth Circuit has also applied the rational basis test to passport revocation.

Although there is no case law on the constitutionality of revocation based on gender markers, a 2020 case addressed the denial of an application based on those grounds. The case arose under a binary policy from Trump’s first term, so it may offer some useful insight. In Zzyym v. Pompeo (10th Cir. 2020) 958 F.3d 1014, plaintiff Dana Zzyym was intersex, and therefore could not check either the “M” or “F” box required on their application. Zzyym requested using an “X” marker, but was denied, then filed suit.  

Zzyym determined that the State Department could deny passports for reasons not listed in the statutes or regulations and concluded that the longstanding binary sex policy fell within this authority. Although the court did not address the constitutional implications of the denial, it did examine whether the binary sex policy was arbitrary and capricious under the Administrative Procedure Act, which codifies the process of judicial review of agency rules and actions. The court found that two of the reasons given for denying an “X” marker were justified. Both reasons involved the possibility of mismatches between an “X” marker and the records of various state and federal agencies, which might not use this designation. 

As those reasons were described as “rational,” they could arguably pass the rational basis test that will likely be applied to future cases challenging passport denial or revocation based on gender markers.

Although not relied upon for its decision, the court discussed the fact that transgender applicants could update their gender markers, which could also involve the same type of mismatches. The court opined that the Secretary of State could have restricted this practice but chose not to. 

Such mismatches are common for transgender people today. Some states already restrict updates to documents such as birth certificates and driver’s licenses. Even where updates are allowed, many transgender people may have changed some, but not all, documents, due to the cost or other reasons.

In summary, passports with updated gender markers could be revoked, and if the courts apply the rational basis test in a constitutional challenge, the revocation is likely to be upheld. If that were to happen, transgender and non-binary people may (or may not) be able to “de-transition” the document in order to have a passport at all. That type of accommodation does not address the impact of administrative de-transition on the mental health of people in this bind. 

Importantly, notice of passport revocation or cancellation is only given after the fact, at which point a hearing may be requested. Even if new regulations were ultimately held to be unconstitutional, people could be prohibited from leaving the country until the litigation was resolved, which could take months or years. 

Another troubling concern is that updated gender markers on an official document could be used as evidence of fraud, or worse. 

Justice Brandeis famously described states as laboratories of democracy, and states are experimenting with novel transgender restrictions accordingly. As reported by Erin Reed, in Florida, the Department of Highway Safety and Motor Vehicles sent a memo outlining a change to the policy that allowed people to change their gender on licenses. The memo explained that the existing policy did not reflect state law because gender had historically been understood as a synonym for sex, “which is determined by innate and immutable biological and genetic characteristics.” It warned that “misrepresenting one’s gender, understood as sex, on a driver license constitutes fraud … and subjects an offender to criminal and civil penalties, including cancellation, suspension, or revocation of his or her driver license.” Although officials denied that this change would affect those who had already updated their documents, the reasoning behind the memo is disturbing. 

In Texas, the Department of Public Safety similarly changed its policy to prohibit updates to driver’s licenses. An internal memo directed employees to send the names and identification numbers of people seeking updates to an email with the subject “Sex Change Court Order,” and to scan into the record any court orders or documentation related to the request. No explanation was given for this directive. 

It may only be a matter of time before a state experiments with revoking already-updated IDs. The resulting litigation may inform the new administration on how updated passports may be revoked. 

On a national level, Project 2025 proposed categorizing expressions of “gender ideology” as pornography and making pornography illegal, thus potentially exposing anyone expressing the possibility of changing gender markers to criminal penalties. Project 2025 asserts that such expressions of “gender ideology” would not be covered by the First Amendment. Although the President-elect disavowed Project 2025, many of its contributors appear to be in line for appointment to posts within the new administration.

In 2024, Missouri introduced a bill that would have placed teachers and school counselors on the sex offender registry for providing any support to a child regarding their social transition, which would mean simply using the student’s new name or pronouns, and allowing preferred clothing or hairstyles. 

Under this framework, an application for an updated passport or a passport documenting a change in gender markers could be used as evidence, signed under penalty of perjury, of an expression of “gender ideology.” Those who have updated their passports have also submitted additional evidence, such as orders changing gender, proof of surgery, or simply by checking the box requesting a changed gender marker. Assuming such records are preserved, the State Department could search for all transgender applicants to find updated passports for revocation or worse. 

Even without these worst-case scenarios, simple passport revocation could temporarily or permanently prevent transgender people from leaving the country if, and when, life here becomes untenable. 

I am relieved that my decision to wait until after the inauguration to leave for Colombia has not been fatal to my plan to relocate there. However, given the extreme uncertainty, I continue to wrestle with when to leave. My spouse pointed out that, assuming we can get out in time, I might not be able to return.

Featured image is Passport 1/4, by Sarah