- Trump’s January executive order proclaiming that there are only “two sexes” is making it more difficult for transgender and non-binary citizens to travel outside the U.S.
- The order and subsequent policies contradict medical consensus on gender transition.
- It’s unclear how the U.S. State Department determines applicants’ sex assigned at birth, or even what prompts them to investigate it.
Applicants for a U.S. passport have to prove their identity to the federal government. But there’s another layer of scrutiny that has trans and non-binary citizens worried - the letter on passports that indicates sex.
Under the Biden administration, passport applicants could choose “M” for male, “F” for female, or “X” as their sex marker. Some non-binary people use “X” instead of the sex they were assigned at birth.
Changing sex markers on IDs is part of the gender transition process. Gender transition is supported by all major medical associations and widely accepted as the best treatment for gender dysphoria.
But President Donald Trump does not believe the decades of medical research on gender dysphoria. So he issued an executive order declaring that there are only two sexes, specifically targeting trans women.
Jay Kaplan is an attorney at the ACLU of Michigan. He said the order and its resulting policy are part of a larger agenda.
“They're basically trying to erase the existence of transgender people through this policy,” he said.
Extra stress
The order requires all new federal identity documents to use only “M” or “F.” And no one can change their sex marker assigned at birth on those documents. The passport application form, DS-11, has reverted to an older version that only lists “M” and “F.”
Kaplan said that could create problems for trans and non-binary citizens trying to re-enter the United States.
“If your gender appearance does not reflect what it says on your federal ID, on your passport or on your visa, there's a good chance that you're going to encounter difficulties,” he said.
To be clear, current, unexpired passports are still accepted at the border. The problem comes when someone needs to renew or update their passport.
That’s causing fear and uncertainty for trans and non-binary residents, including in Michigan.
Andy Slocum is a consultant who recently started their transition. Their documents aren't updated, so they anticipate having more trouble once their appearance doesn’t match the letter on their passport.
And Slocum has two kids, so travel is already stressful enough.
“It's like one more thing to deal with, when you're trying to get your family on airplanes or whatever,” they said. “You don't need any extra craziness.”
It can be a problem for folks farther along in their transition, too.
Kai Ngu is a PhD student at the University of Michigan. They tried to update their name in January, but ended up retrieving their passport application from a university mailroom.
“I freaked out and I was like, oh my God, I don't think my passport will be processed or it will be lost in some kind of bureaucratic limbo,” they said. “I think I had, like a panic attack, basically. And I could not stop thinking about it.”
If Ngu updates their name now, the government will likely issue them a new passport with their old sex marker. That's because the state department now determines what someone’s “biological sex” is when processing passport applications.
But it's unclear how it does that.
A lack of clarity
Carl Charles is an attorney at Lambda Legal. He said the organization is using multiple routes to figure out how the policy is implemented.
“The universe of things we know fall into two categories,” he said. “First, there is what the government is telling us they're using. And then we are hearing anecdotally from trans people and filling in a little bit of the gaps on that.”
The state department declined to say how it determines sex assigned at birth.
A February memo from Secretary of State Marco Rubio instructs employees to use the oldest document they can find, instead of updated documents. Those can include driver’s licenses, old passports and birth certificates.
It’s also unclear what prompts employees to check older documents and where they look for them. The memo cites “conflicting information” about an applicant’s sex, but doesn’t elaborate on what that might look like.
Requiring sex markers that reflect sex assigned at birth on passports is a matter of national security, the state department said in a statement to Michigan Public.
“Travel document security is vital to our national security,” a spokesperson said in an email. “The Department of State is committed to protecting our nation and its citizens through upholding the highest standards of national security.”
And it’s difficult to assuage fears that crossing the border with conflicting sex markers could result in detention or additional searches. A Customs and Border Protection spokesperson said agents will continue to process U.S. citizens with a valid passport as U.S. citizens.
Charles said the lack of clarity from the federal government is intentional.
“This is intended to cause fear,” he said. “It's intended to sort of ratchet up the temperature around trans people's freedom of movement.”
Kaplan said having a sex marker that doesn’t match your appearance isn’t just inconvenient or awkward – it can be dangerous.
“What this does, the inconsistency of documents about a transgender person, is it makes them vulnerable to discrimination, harassment, and in some instances, violence,” he said.
Under the radar
Ngu is traveling to Malaysia this summer to do research for their dissertation. Their goal is to fly with their current documents and, hopefully, slip under the radar.
“I don't want to provide any reason to be stopped at customs or any borders. So I don't want any discrepancies within the system,” they said. “It just seems to me I need to minimize like, getting on the administration's radar.”
Slocum doesn’t have any travel plans yet. But they’re worried about how Trump’s policies could affect how they’re treated at the border the next time they do travel.
“They embolden people to say something nasty. And I don't want my family to have to deal with that,” they said. “I know it's kind of part of the experience as a trans person. But it doesn't mean I want it to happen.”
The policies feel targeted, Slocum said.
“It feels like they found an easy target and they're sort of punching down on that, to score points and to look like they're doing something,” they said. “They're taking a minuscule segment of the population and they're trying to make it this huge thing.”
Ngu, who is an immigrant and naturalized citizen, said it reminded them of how the U.S. treats immigrants.
“We are rendered alien or foreign or outside or unrecognizable to the systems of this country,” they said. “The system does not recognize you in the way that you want to be, the way that you are. And you're sort of put in a particular ‘other’ category or you're not recognized at all.”
In limbo
The sex marker policy is being challenged in court. The national ACLU has filed a lawsuit against Trump on behalf of seven trans and non-binary citizens who are unable to get a passport with the appropriate sex marker under this policy.
Charles and Kaplan said they hope the judge will grant an injunction that pauses enforcement of the Rubio memo while the case goes through court.
That could open a short window for applicants to renew their passports under the Biden-era rules. In the face of all this uncertainty, Charles said the best strategy is to stay informed.
“Trans folks generally are just living in a kind of limbo right now. That is really uncomfortable and scary,” he said. “The best thing to do in the present moment is to be as informed as possible as people are making choices.”
Charles and Kaplan said Lambda Legal and the ACLU of Michigan are collecting information from trans and non-binary people who have crossed back into the U.S. Both said travelers can notify them if they’ve crossed the border with minimal or no issues, too – that’s helpful information to have.
Ngu said the current political climate is an opportunity to band together, rather than being overwhelmed.
“We can be in solidarity with each other. We can organize together. We can form coalitions together,” they said. “I think that is my hope.”
