Administrative – Passport sex markers

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Where (1) a complaint was filed challenging two changes that the State Department made to its policy concerning passport sex markers, (2) a preliminary injunction was entered barring enforcement of the passport policy against six of the seven original plaintiffs and (3) the complaint was subsequently amended to add five additional plaintiffs, a motion by the plaintiffs to certify two classes should be allowed and the preliminary injunction should be extended to a subset of each of those classes.

“At issue in this case are two changes that the State Department made to its policy concerning passport sex markers pursuant to Executive Order 14168 (Jan. 20, 2025). Whereas the State Department previously permitted transgender passport applicants to self-select male (‘M’) or female (‘F’) sex markers that correspond to either their gender identity or sex assigned at birth, it now requires that passports reflect only the holder’s sex assigned at birth. And whereas the State Department previously allowed intersex, non-binary, and gender non-conforming applicants to select ‘X’ as the sex marker on their passports, it now issues passports only with an ‘M’ or ‘F’ marker. Jointly, these changes constitute the ‘Passport Policy.’

“On April 18, 2025, the Court entered a preliminary injunction barring enforcement of the Passport Policy against six of the seven original plaintiffs and requiring the State Department to issue those plaintiffs passports consistent with their gender identities. The plaintiffs subsequently amended the complaint to add five additional plaintiffs, each of whom is transgender or non-binary, like the original plaintiffs, and two of whom are also intersex.

“Pending before the Court are the plaintiffs’ motions to certify two classes under Federal Rule of Civil Procedure 23(b)(2) and to apply the preliminary injunction to certain members of those classes. The government does not dispute that the plaintiffs’ proposed classes meet the criteria for certification under Federal Rule of Civil Procedure 23(a), but it contends that the classes are insufficiently ascertainable and fail to qualify for Rule 23(b)(2) certification. The government also opposes the plaintiffs’ request to extend the preliminary injunction to a subset of the proposed classes. Following a hearing, the Court invited and received supplemental briefing from the parties on modified class definitions. Upon consideration of the parties’ arguments, and for the following reasons, the Court will grant the plaintiffs’ motions to certify two classes under Rule 23(b)(2) and to apply the preliminary injunction to a subset of each of those classes. …

“For the foregoing reasons, the plaintiffs’ motion for class certification, ECF 77, is granted as modified by this Court. The following classes are certified:

“1. A class of all people (1) whose gender identity is different from the sex assigned to them under the Passport Policy and/or who have been diagnosed with gender dysphoria, and (2) who have applied, or who, but for the Passport Policy, would apply, for a U.S. passport issued with an ‘M’ or ‘F’ sex designation that is different from the sex assigned to that individual under the Passport Policy (‘M/F Designation Class’);

“2. A class of all people whose gender identity is different from the sex assigned to them under the Passport Policy and who have applied, or who, but for the Passport Policy, would apply, for a U.S. passport with an ‘X’ designation (‘X Designation Class’). …

“The plaintiffs’ motion to apply the preliminary injunction to the classes, ECF 79, is granted. …”

Orr, et al. v. Trump, et al. (Lawyers Weekly No. 02-321-25) (32 pages) (Kobick, J.) (Docket No. 1:25-cv-10313-JEK) (June 17, 2025).

Click here to read the full text of the opinion.