Judge Blocks Passport Ban For Plaintiffs, Citing Government Animus And Equal Protection

The federal judge ruled that transgender people's passport changes do not, as the Trump executive order stated, deprive the "dignity, safety, and well-being of women."

Photo by Nicole Geri on Unsplash

In a landmark decision issued late Friday, a federal judge granted a preliminary injunction blocking the Trump administration’s passport policy targeting transgender Americans. The executive order, which required that passport gender markers reflect a person’s assigned sex at birth, effectively reversed three decades of precedent and left many applications stalled in bureaucratic limbo. The judge ruled the policy was “arbitrary and capricious,” likely in violation of the Administrative Procedure Act, the Paperwork Reduction Act, and the equal protection clause of the U.S. Constitution. The judge also ruled that the decision was based in animus and discrimination towards transgender people. While the injunction currently applies only to the named plaintiffs, a broader ruling protecting all transgender Americans is expected in the coming weeks.

“The plaintiffs have also demonstrated a likelihood of success on their separate argument that, under any standard of review, the Executive Order and Passport Policy are based on irrational prejudice toward transgender Americans and therefore offend our Nation’s constitutional commitment to equal protection for all Americans. In addition, the plaintiffs have shown that they are likely to succeed on their claim that the Passport Policy is arbitrary and capricious, and that it was not adopted in compliance with the procedures required by the Paperwork Reduction Act and Administrative Procedure Act,” ruled the judge.

The judge, when evaluating whether or not the transgender plaintiffs were being discriminated against in a way that likely violates their equal protection under the law, ruled that they likely were. This is because the order targets transgender people based on sex, an act that triggers a higher degree of constitutional scrutiny: “As to the first policy change, applicants are explicitly treated differently based on their sex assigned at birth. A person who identifies as female can receive a passport marked “F” if her sex assigned at birth was female, but not if her sex assigned at birth was male. Likewise, a person who identifies as male can receive a passport marked “M” if his sex assigned at birth was male, but not if his sex assigned at birth was female… Viewed from any angle, that amounts to a classification based on sex.”

Once the judge determined that the policy classified on sex, the government must prove that it used the least restrictive way to achieve an important government objective in an “exceedingly persuasive manner.” The Trump executive order argued that the change was needed to protect the safety of cisgender women. The judge found this unpersuasive, ruling, “There is no connection between the State Department’s prior policy—which allowed applicants to obtain personal-use passports consistent with their gender identity—and any deprivation of cisgender women’s dignity, safety, and well-being… marriages)…. The government further offers no explanation for how a policy that allowed all individuals to obtain passports reflective of their gender identity had a “corrosive impact” on women and “the validity of the entire American system.” EO § 1. Any such argument would strain logic, and so it is not surprising that the government does not try to justify the Passport Policy by reference to the stated purposes of the Executive Order.”

The judge also found that the administration’s decision to block passport gender marker changes for transgender people was rooted in anti-transgender animus, rendering the policy likely unconstitutional under any level of judicial scrutiny. In reaching this conclusion, the ruling considered not only the passport policy in isolation, but its context alongside other contemporaneous executive actions—most notably, the transgender military ban, in which the government argued that transgender individuals were inherently dishonorable and untruthful. These actions, the judge wrote, “convey a fundamental moral disapproval of transgender Americans.”

The judge also ruled that the passport ban was arbitrary and capricious, failing to meet the standards required by the Administrative Procedures Act and the Paperwork Reduction Act. Major rule changes typically require agencies to post proposed changes to the Federal Register, allow for public comment, and assess stakeholder input before altering official forms or procedures. The Trump administration bypassed that process entirely, imposing the passport policy by executive fiat—banning transgender people from receiving passports with accurate gender markers with the stroke of a pen. “There is no evidence before the Court that, in adopting the Passport Policy, the Agency Defendants took steps to identify facts bearing on its policy change, attempted to identify potential reliance interests, or sought to determine how any such interests may be impacted by the policy changes,” the judge wrote.

Following these determinations, the judge ruled in favor of a preliminary injunction blocking the new passport policy. Though the ruling currently applies only to the plaintiffs, it is widely expected to expand in the coming weeks to cover the full class of transgender Americans. It joins a series of federal court decisions in recent months halting Trump administration policies targeting transgender people, reinforcing a growing judicial record that identifies inescapable anti-transgender animus in their design. That pattern may ultimately form the legal backbone for dismantling Trump’s broader agenda—and could mark a turning point in the courts’ willingness to scrutinize and strike down policies that treat transgender Americans as second-class citizens.