On his first day in office, President Donald Trump’s administration began stripping away rights, protections, and even simple acknowledgment for transgender people on the federal level. One of these orders has mandated that federal identity documents, including passports, must reflect the owner’s sex “at conception,” a blow for any trans people seeking documents that accurately reflect their gender.
Last week, Lambda Legal, a national group specializing in litigation on LGBTQ issues, held an online informational session to discuss the different avenues trans people have to navigate what has become an uncertain legal landscape. The American Civil Liberties Union is challenging Trump’s order restricting federal identity documents, but the outcome of the case is still uncertain.
The informational session discussed “factors to consider as you navigate the passport application process, as well as what you might expect to see in the near future and best practices for travel in the interim,” said Lake Geslani, Lambda Legal’s senior content manager, who moderated the session.
“The information we give you today may change- even hours after this recorded session,” said Paul D. Castillo, Deputy Legal Director at Lambda Legal. “As such, we remind you that the actions of the president, the U.S. State Department or other federal agencies, and the courts could shift the landscape, so it is important to keep abreast of the most current information.”
Even in a frequently shifting news cycle, the ramifications of Trump’s trans passport ban did not go unnoticed. Notably, actress Hunter Schafer spoke out in a viral video after being issued a new passport falsely identifying her as male. Vox reported in February that many transgender people have found themselves in “legal limbo,” with some reportedly unable to receive a passport at all, accurate or not.
It’s important to recognize exactly what having a passport does and does not mean. Passports are required for international travel; domestic travel within the U.S. is not necessarily affected by this, as travellers can use state I.D. documents instead. But passports are not just used for travel – they can serve as vital identifying documents when one applies for a job or housing.
Carl Charles, Senior Attorney at Lambda Legal, also noted the special importance passports can have to trans people.
“We also know that for many trans people, a passport has for a long time represented an avenue to an accurate identity document, if state laws or policies prohibit updating driver’s licenses or other state ID,” Charles said.
However, if a transgender person has different gender markers on different documents, they could face extra difficulties while traveling internationally or even be accused of fraud.
“The best decision is, considering many of the factors and understanding your own family’s risk tolerance, whether you prioritize traveling abroad or having an accurate identity document,” said Castillo.
Over the course of the session, both Charles and Castillo reminded viewers that the talk was “solely an informational session, not legal advice.”
“We encourage everyone on this call to talk to a local attorney about your particular circumstances,” Castillo said.
If You Already Have a Passport, is it Still Valid?
The short answer: yes, at least for the foreseeable future. That’s according to guidance from the Trump administration, which states that passports that don’t align with the administration’s policy, including those with “X” gender markers, will be valid until they expire.
“There should be no disruption with those unexpired passports with regard to TSA or Customs and Border Protection,” said Castillo.
What to Do if You Need a New Passport Soon
If you’re a trans person in the U.S. who wants a new passport that accurately represents your gender, hope isn’t necessarily lost: Charles pointed to the ACLU’s lawsuit, which, if successful, could create an opening. The ACLU has filed a preliminary injunction which, if accepted by the judge, would halt Trump’s new passport policy while the case is being decided.
“If it is the case that the judge enters an injunction and stops this passport policy from being in effect, that may be the time when people with upcoming renewals or soon to expire passports want to submit a passport application, because there may be a chance there may be a window that they can get a document with a correct gender marker,” said Charles.
Additionally, he said, those who have not been issued a passport previously might be able to find a loophole in the order.
“Unlike people with renewal applications, or people who have had passports in the past, the State Department cannot look back and see a record of you ever having had a different gender marker on your passport,” Charles said. “And so it may be possible, depending on the constellation of your other identity documents, for you to obtain a passport that reflects the correct gender marker.”
Given the uncertain outcome of the ACLU’s case against the Trump administration’s passport restrictions, the crux of the issue is this: most transgender people living in the U.S. must choose between having inaccurate federal identity documents, which could expose them to discrimination, or being unable to travel internationally. The considerations involved in that trade-off are different for everyone.
“Maybe for you, it’s more important that you be able to travel and you’ll deal with any perceived or potential difficulties of a mismatched gender marker because it’s more important to you to travel,” said Charles. “Or perhaps you are a person for whom it is important to have a correct gender marker. And so, you want to wait and see what might happen in order for you to pursue that route and you’re willing to postpone upcoming travel or to hold off on travel to see what happens with any legal challenges related to this policy.”
Other Travel Considerations
“It’s important to say that, you know, underneath our conversation today, is the reality that trans people have been dealing with discrimination in travel, both domestic and international, for many years,” Charles said.
Charles and Castillo both recommended keeping multiple different forms of ID for travelling as “backup.” State IDs, for many states including Colorado, can still be issued with gender markers different from one’s sex assigned at birth.
“For domestic travel in particular, you can make choices about the identity document that you’re using, provided that it is a Real ID,” Castillo said. and I know many states throughout the last several years have been preparing their driver’s license or state ID to be Real ID compliant.”
Real ID refers to a federal law requiring state ID documents to fit certain standards to be valid for domestic travel, among other things. Most Colorado driver’s licenses and other state ID cards have been Real ID-compliant since 2012.
Aside from that, they said that trans Americans, whether traveling internationally or domestically, should have a travel safety plan, and update trusted friends or family on their whereabouts as they proceed.
“This plan could include the following things,” said Charles. “Providing your itinerary, including flights, layovers, departure and arrival destinations to a trusted friend or family member. It’s also never a bad idea to provide this information to more than one person. In the event that you can’t reach a friend or family member, having a backup is a great idea. … Providing local contact information for your lodging destination is also an important safety measure that you can take.”
He added, “The other thing too if you are financially able to do so, we would recommend booking travel that is fully refundable, which gives you flexibility to make last minute changes and make decisions – as the landscape is shifting on a last minute basis – and still be able to secure a refund if it is possible.”
