A federal judge in Massachusetts has expanded her injunction against the State Department’s anti-transgender, anti-nonbinary passport policy to cover almost all applicants who are trans or nonbinary. She had previously issued an injunction blocking the policy only for six of the seven people who originally sued — those who doctors said would suffer irreparable harm under the policy.
In January, Secretary of State Marco Rubio announced that his department would quit processing passport applications that sought the X gender marker and would not allow those renewing passports to change their gender marker.
The State Department implemented the policy, which affects transgender, nonbinary, and intersex people, in keeping with Donald Trump’s executive order recognizing only male and female sexes and denying that one’s gender can ever change — something that is at odds with the view of every major medical group. The policy does not affect existing passports but applies to new ones, renewals, and replacements. Five trans people and two who are nonbinary filed suit against the policy in February in U.S. District Court in Massachusetts. In the lawsuit, known as Orr v. Trump, they are represented by the American Civil Liberties Union, the ACLU of Massachusetts, and the law firm of Covington and Burling LLP.
Judge Julia Kobick issued a preliminary injunction against the policy in April, saying it can’t be enforced against six of the seven who sued while their lawsuit proceeds. But Tuesday, she granted class certification to plaintiffs who have since been added to the suit as well as almost all trans and nonbinary Americans seeking new passports or changes. She said the State Department must immediately begin issuing passports as it would have January 19, before Trump took office. Under President Joe Biden, the State Department made the X option available to all applicants in 2022 and made it easier to change the gender marker.
“Specifically, she certified a class of transgender people seeking ‘an “M” or “F” sex designation that is different from the sex assigned to that individual under’ the Trump administration’s anti-trans policy and a class of those people seeking ‘a U.S. passport with an “X” designation,’“ Law Dork reports. She also laid out steps for the State Department to confirm that an applicant is a member of the certified class.
“The plaintiffs have demonstrated that they are likely to succeed on the merits of their claims that the Passport Policy violates their constitutional right to equal protection of the laws and runs afoul of the safeguards of the APA,” Kobick, a Biden appointee, wrote in her opinion, referring to the Administrative Procedure Act, a federal law that governs how policies are adopted.
“Even assuming a preliminary injunction inflicts some constitutional harm on the Executive Branch, such harm is the consequence of the State Department’s adoption of a Passport Policy that likely violates the constitutional rights of thousands of Americans,” she continued.
The plaintiffs in a separate case, Schlacter v. U.S. Department of State, were excluded from the lawyers’ request for class certification, as was any judge hearing these cases, although there are currently no known trans or nonbinary federal judges. Schlacter was filed by seven trans and nonbinary people April 25 in U.S. District Court in Maryland. They are represented by Lambda Legal, and the case is pending.
Bobick’s Tuesday ruling “is a critical victory against discrimination and for equal justice under the,” Li Nowlin-Sohl, senior staff Attorney for the ACLU’s LGBTQ & HIV Project, said in a press release. “But it’s also a historic win in the fight against this administration’s efforts to drive transgender people out of public life. The State Department’s policy is a baseless barrier for transgender, nonbinary, and intersex Americans and denies them the dignity we all deserve. We encourage all class members impacted by this policy to take advantage of this injunctive relief and we will do everything we can to block this policy permanently.”
“This decision acknowledges the immediate and profound negative impact that the Trump administration’s passport policy has on the ability of people across the country to travel for work, school, and family,” added Jessie Rossman, legal director at the ACLU of Massachusetts. “The Trump administration’s passport policy attacks the foundations of the right to privacy and the freedom for all people to live their lives safely and with dignity. We will continue to fight to stop this unlawful policy once and for all.”
The Trump administration has appealed Kobick’s April ruling, CBS News reports. The State Department declined comment to the network on Tuesday’s opinion.