Newly minted Secretary of State Marco Rubio has reportedly directed his agency to freeze passport applications that contain a request for an X gender marker or a change of gender. According to an internal State Department document obtained on Thursday by The Guardian, Rubio told staff that “sex, and not gender, shall be used” on documents like passports and overseas birth certificates. The document instructs workers to “suspend any application requesting an X sex marker,” as well as “any application where the applicant is seeking to change their sex marker,” citing President Trump’s anti-trans executive order this week: “The policy of the United States is that an individual’s sex is not changeable.”
Rubio’s memo reportedly did not provide additional details about the suspension policy, including how long any such suspension periods may last. In response to an emailed request for comment from Them, a State Department spokesperson said only that the agency “does not comment on leaked internal documents.” Earlier this week, following Trump’s executive order, White House officials said that the policy changes would not affect existing valid passports until they are renewed. At that point, trans, nonbinary, and intersex people “have to use their God-given sex, which was decided at birth,” White House press secretary Karoline Leavitt told NOTUS.
“This is an area where there is broad presidential authority to make changes,” said ACLU attorney Chase Strangio in an Instagram video Friday morning. “This has always been the area where they could act the fastest [in the sex discrimination executive order].” Strangio emphasized that “it would be a significant escalation outside their legal authority” to attempt to revoke currently valid passports, and that the policy change does not affect state ID cards or similar state-level identification. Speaking to Them via email, Strangio further stressed that “just because we are seeing immediate action on this part of the [executive order] does not mean that the rest of the EO is going to be immediately implemented across the government.”
LGBTQ+ legal advocacy group Lambda Legal also vowed to litigate against Trump’s orders this week, noting in a statement that the State Department was forced to adopt “X” passport markers as a result of a lawsuit from intersex activist Dana Zzyym. A district court ruled in 2018 that the department’s previous binary sex policy violated the Administrative Procedure Act. “Lambda Legal secured the first U.S. passport with an ‘X’ gender marker for our brave client, Dana Zzyym,” wrote Lambda Legal CEO Kevin Jennings, “and we’ll continue to stand with Dana and all intersex, nonbinary, and transgender people to defend their right to identity documents that accurately identify who they are, and their equal protection rights against targeting and exclusion by their own government.”
