On November 6, the Supreme Court issued a stay in Orr v. Trump, a case brought by the American Civil Liberties Union (ACLU) on behalf of seven transgender and nonbinary passport holders. The stay allows the government to implement anti-trans passport policies while the case is on appeal, overturning lower court rulings that sided with the plaintiffs and blocked the passport policies from going into effect. I’ve been following the issue all year as part of my research for a forthcoming queer travel handbook and caught up with LGBTQ+ legal experts to unpack the significance of the stay and what comes next.
Transgender Americans have been able to update their sex markers from incongruent ones, or binary gender markers showing their assigned sex, to congruent or affirming sex markers since the 1990s. Nonbinary Americans have been able to get gender-neutral passports with an X, rather than a binary M or F, since 2022.
The stay halts transgender and nonbinary people’s ability to receive gender-congruent passports, instead ensuring they receive passports showing the sex assigned at birth. The ruling is a blow to the safety and freedom of movement of trans and nonbinary people.
For a trans traveler with an incongruent ID, travel means outing yourself to strangers, which in many parts of the world isn’t safe. Sometimes it means enduring invasive and humiliating pat downs.
Carl Charles, counsel at Lambda Legal, a national civil rights organization that advocates on behalf of the LGBTQ+ community through free legal support and public policy work, says the Supreme Court decision “allows a discriminatory policy to go back into effect, even though a class of plaintiffs have demonstrated they are likely to show the policy is unconstitutional and contrary to law. Though the Supreme Court was only reviewing the urgent nature of the injunction, it went out of its way to say that requiring inaccurate markers on passports does not ‘offend equal protection principles.’”
Following the ruling, anyone with a pending passport application or renewal will receive a passport listing the sex assigned at birth. However, the State Department maintains that any American with a valid passport can continue to use it for now, regardless of whether the sex marker listed matches the one assigned at birth.
Ruth Carter, a nonbinary attorney in Arizona who helps clients change their gender marker, says the decision has implications beyond international travel. In Arizona, people can apply for a nonbinary state ID only if they show another government-issued nonbinary ID. “I’ve been telling people to get their nonbinary passport and use that to get the corresponding driver’s license. This option isn’t available anymore,” they say.
Carter has taken domestic flights this year. Most were uneventful, but after the Supreme Court decision, they found themselves unable to check into an upcoming flight electronically. A pop-up on the page said airport check-in required. Carter says, “I called the airline, and the rep said it was probably the X that wouldn’t let me check in online in advance. When I said I had the X on my IDs, they were able to have the IT people check me in. It wasn’t something the rep could fix. They also gave me a heads-up to expect the same problem for my flight home.”
But Carter hasn’t left the United States, and they don’t plan to for fear of how the policy shift could influence the behavior of border officers, who as nonbinary writer M. Gessen describes in a recent New York Times opinion piece, police and scrutinize gender diverse travelers in uncomfortable, alienating ways. “I’m afraid I’ll face harassment and discrimination when I try to get back into the country . . . or worse, I’m afraid my passport will be invalidated while I’m out of the country and it will impact my ability to get home,” Carter says.
The State Department briefly updated an FAQ on gender-congruent and X passports, suggesting the agency could invalidate passports to comply with federal regulations. In the wake of public outcry, the State Department reversed course, as transgender journalist Erin Reed reports. Now, the State Department website says passports are valid until their expiration date.
Stone Cairns, a nonbinary coach and facilitator in Oregon, renewed their passport after the 2024 election, hoping this would help them “weather the storm or have a way to relocate if needed.” Cairns, who is nonbinary, got their passport back in time. But they haven’t flown since President Trump signed a “gender ideology” executive order in January, citing a lack of clarity, inconsistent policies, and fear of bad interactions with TSA officers, a sadly common occurrence for trans or nonbinary people.
Cairns finds the recent developments stressful. Although their passport is valid, they do not feel safe flying with it, since the X marker automatically outs them as nonbinary. “Will I be able to leave the country for my safety if needed? Should I be fleeing now?” they wonder.
The Supreme Court ruling was a narrow one. Instead of weighing the merits of gender-congruent passports, it simply considered whether a stay against lower court rulings for the plaintiffs was merited while the case continues to move through the courts. “I hope people don’t think that the Orr v. Trump lawsuit is over,” Carter says. “The Court could ultimately rule that the executive order that ended our access to correct passports is unconstitutional.”
While that may seem like a long shot to some observers, given that the Supreme Court recently declined to take up a challenge to Obergefell, the same-sex marriage ruling, there is some hope.
