ACLU Sues Trump for Targeting Trans Americans — Who Are Confused and Terrified
Miles and his wife applied for passports in December. Eleven days later, his wife, a cis woman, received her new passport in the mail but Miles, a trans man, didn’t. His passport application status is currently “on hold,” and he says the last time he called to ask about it, a few days after President Donald Trump took office, a government worker told him he wasn’t getting his passport or his documents back.
Miles is not alone.
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The State Department has stopped issuing passports with an “X” gender marker and has halted processing of all applications from Americans who are changing their gender markers in response to a sweeping executive order signed by Trump on his first day in office. The change in policy has left trans and nonbinary people scrambling to obtain passports with their correct gender markers. In a class action complaint filed on Friday, the ACLU sued Trump, the State Department, Secretary of State Marco Rubio, and the United States of America, raising several claims of unconstitutionality and calling the change in policy “abrupt, discriminatory, and dangerous.”
When Miles applied for his passport, he submitted his old passport, a court order which showed his name change, a copy of his marriage certificate and his amended birth certificate, and his driver’s license. In response, he received a letter requesting proof of the amendment of his birth certificate, to which Miles sent a certified copy of the court order of his name and gender marker change. Though he confirmed the State Department received the documents, his passport application is now “on hold” and no longer “in process,” according to documentation reviewed by Rolling Stone.
“I’m overwhelmed by the fact that I don’t feel safe here and now I can’t leave,” Miles says. “I don’t expect to get [my passport] ever and I don’t expect to get my stuff back.” The birth certificate he sent in was the only one he had with his correct name and gender on it. “I won’t lie, I had a breakdown when I realized I wasn’t getting that back,” he says. Miles has since ordered four extra copies of his amended birth certificate, just in case.
Malita Picasso, a staff attorney for the ACLU LGBTQ & HIV Project, says the confusion around the policy is purposeful. The ACLU is receiving reports of some trans, intersex, and nonbinary people receiving new passports with gender markers that reflect their gender assigned at birth rather than their gender identity, while other people haven’t received anything. “Part of this administration’s strategy has really been to create this sense of chaos,” Picasso says. “The fear is purposeful. It’s the purpose of all this uncertainty.”
In the complaint targeting the policy, the ACLU alleges violations of the Federal Equal Protection Clause, which requires states to treat all people equally under the law. “It cannot be justified under any level of judicial scrutiny, and it wrongly seeks to erase the reality that transgender, intersex, and nonbinary people exist today as they always have,” the complaint reads. The ACLU is also raising claims under the right to travel, the right to informational privacy, and the right to free speech. In the meantime, trans, nonbinary, and intersex people are worried — about their ability to travel, about whether their current passports are considered valid, about what will happen if they try to re-enter the country after leaving. “The level of fear is difficult to describe,” Picasso says. “It’s just clearly motivated by animus and wanting to deal as many sucker punches to the trans and nonbinary community as possible.”
Syd, a 25-year-old who is nonbinary, wonders if their driver’s license and passport are considered valid anymore. They just canceled two trips they had planned in February because of the confusion. “I don’t know if I’ll be able to fly,” Syd says. “I don’t know if my documents are valid at this point because they have an X gender marker on them.” They’re planning to apply for a new passport under the gender they were assigned at birth. They hope they’ll be able to receive one, even if it doesn’t reflect their gender identity, in part because they’re considering moving out of the country with their partner. As an interracial couple, Syd says, they just don’t feel safe anymore. “We don’t really have a choice at this point.”
Chanel, a 33-year-old trans woman in Florida, isn’t expecting to get the passport she recently applied for. To apply, she had to send in the official copy of her amended birth certificate, leaving her without documentation. And even if she does get a passport, she wonders if it will state her gender as male despite her driver’s license and birth certificate stating she is female. “I feel like I’m being held hostage in a country that doesn’t want to give me my basic rights,” she says. “It’s scary because if I do need to seek refuge somewhere else, I can’t leave.”
Chanel doesn’t understand: If the administration thinks trans people are such a problem, why won’t they let her get a passport and leave? She’s submitted everything required of a passport application but hasn’t heard an update. “It feels like, as a trans person, we are just being left in the dark. We don’t have anyone to protect us.”
Days before Trump was inaugurated and issued the executive order that caused the State Department to change its passport-issuing policy, Holly, 36, secured a passport for her 17-year-old trans son, August. Now, she wonders if August was one of the last trans people to get a passport, which they used to move out of the country. “We wanted to get out before Inauguration Day because I did have a feeling that it was going to get bad pretty quickly,” Holly says, though she was surprised by reports that trans and nonbinary people aren’t receiving their vital documents back.
Max, 20, whose name was changed for safety concerns, knew things would get bad too — but he didn’t realize how quickly the tide would change. “We thought we’d have more time past day one,” he says. “It’s definitely just like a panic and trying to organize everything as quickly as possible so that we can survive.” Max and his trans wife both applied for passports but when they check the status of their applications, neither exist. Now, Max tells me, they’re getting things together — ordering new birth certificates and packing go-bags in case they have to leave their red state with little notice. “Nobody knows what’s going to happen,” he says. “I’m just trying to prepare for the worst.”
In a TikTok video posted last week that has been viewed over 1.1 million times, Mary, a transgender woman, catalogues her difficulties getting a new passport, calling the executive order an “effective travel ban.” A few days after that first video, Mary posted an update. She had gotten her passport — but it marked her gender as male. “I love America,” Mary says in the update, kissing the passport she holds in her hands. “But this is not the America I know.”
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