Second Judge Rules Trump Trans Passport Ban Likely Unconstitutional "Under Any Standard Of Review"

The decision only applies to named plaintiffs while a separate passport decision in Orr v. Trump applies to all transgender people.

Maryland District Court // Wikimedia Commons // G. Edward Johnson

A federal judge in Maryland has ruled that the Trump administration is likely violating transgender people’s equal protection rights under the U.S. Constitution by denying passports with accurate gender markers. The decision, though limited to six plaintiffs, echoes a separate class action case in another court that applies to all transgender people. In his opinion, the judge pointed directly to the discriminatory language of Trump’s own executive order as proof of unconstitutional intent. The ruling adds to a growing list of judicial decisions affirming that discrimination against transgender people cannot stand under constitutional scrutiny under any standard of review.

In his 34 page decision, Judge George Russell does not find Trump’s rationale for banning transgender people from obtaining passports with their gender marker compelling. He writes that Trump helpfully placed his discriminatory intent directly in the “purpose” section of the discriminatory executive order, which states that transgender people are “coercive” and that it is “wrong” for transgender people to use the bathroom.

Judge Russell writes (emphasis added):

“The Government asserts that the Policy “passes intermediate review because it ‘substantially further[s] an important governmental interest.’” (Opp’n at 23). To determine the purported interest at stake, the Court turns to the text of the Executive Order. There, the President explains “[i]t is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality. Under my direction, the Executive Branch will enforce all sex-protective laws to promote this reality[.]” (Executive Order 14168 at 8615). The Purpose of this directive is then described in Section 1 of the Executive Order, helpfully labeled “Purpose,” which provides that “ideologues who deny the biological reality of sex have increasingly used legal and other socially coercive means to permit men to self-identify as women and gain access to intimate single sex spaces and activities designed for women, from women’s domestic abuse shelters to women’s workplace showers. This is wrong.” (Id.). From the irrefutable text of the Executive Order, then, the purpose of the Passport Policy is summed up by its title: “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” (Id.).

Like every other court that has considered this Executive Order, the Court finds its stated purpose does not serve an important governmental interest that is exceedingly persuasive; further, the discriminatory means employed are not substantially related to the achievement of those objectives.

The judge also rejects the rationale that the government gave for the policy, which it claimed was necessary for “speed, efficiency, and identification.” The judge notes that this was a post-hoc justification for the policy, and that the government failed to support that such a policy would be necessary for the identification of a transgender person. He notes that the rationale for discriminating against transgender people would fail any standard of review, including rational-basis.

Judge Russell wrote (emphasis added):

The Court finds these rationales, at this stage of the litigation, fail to survive intermediate scrutiny. First, these post-hoc rationalizations are untethered from the Executive Order. See Virginia, 518 U.S. at 533 (“The [Government’s] justification must be genuine, not hypothesized or invented post hoc in response to litigation”). Second, even if the Court were to accept these post hoc rationalizations—that the denial of the existence of an entire group of people from government-issued identification documents was necessary to “ensure consistency across the Federal government”—the “Constitution recognizes higher values than speed and efficiency.” McNeill v. Butz, 480 F.2d 314, 323 (4th Cir. 1973) (quoting Stanley v. Illinois, 405 U.S. 645, 656 (1972)). Further, “[s]ettled precedent instructs that a mere claim that a discriminatory policy is justified by an administrative convenience, like a desire for uniformity in data, cannot justify sex- and gender-based classifications.” Orr, 778 F. Supp. 3d at 413–14 (citation omitted). Far from surviving intermediate scrutiny, these rationales also fail to pass the most deferential standard of rational basis review. See id. at 418 (“[U]nder any standard of review, such targeting of a politically unpopular group runs afoul of our Nation’s constitutional commitment to equal protection.”). Accordingly, Plaintiffs have shown that they are likely to succeed on the merits of their equal protection claim.

Government attorneys also tried to defend the passport policy by arguing that it applied to everyone equally—that neither cisgender nor transgender people could have a gender marker different from the one on their birth certificate. Judge Russell rejected this logic outright, likening it to arguments once used to justify racial segregation (emphasis added):

Second, the Government’s assertion that the Policy merely requires passports to reflect the sex designations on Plaintiffs’ original birth certificates takes a narrow view of the Equal Protection clause that the Fourth Circuit has rejected. In Grimm, when rejecting a school board’s argument that its bathroom policy discriminating against transgender students treats all students the same, the Court reasoned “that is like saying that racially segregated bathrooms treated everyone equally, because everyone was prohibited from using the bathroom of a different race.” 972 F.3d at 609.

That is what is happening here. A policy that requires passports to reflect the sex designations on an individual’s original birth certificate would apply to cisgender and transgender individuals equally but would only affect transgender individuals, because cisgender people typically would not apply for a gender on their passport that does not match their sex assigned at birth.

Lastly, Judge Russell dismissed the government’s attempt to use the Supreme Court’s recent Skrmetti decision—which upheld state bans on gender-affirming care for transgender youth—as justification for the passport policy. He noted that the Court in Skrmetti explicitly declined to decide whether classifications based on transgender status warrant heightened scrutiny under the Equal Protection Clause. By contrast, he emphasized that Grimm v. Gloucester County remains binding precedent in the Fourth Circuit, and under that precedent, policies that single out transgender people are unconstitutional.

The decision is limited to six plaintiffs, while a broader class action, Orr v. Trump, extends to all transgender people seeking passport updates. Still, its reasoning matters. It underscores that the administration’s policy is not just cruel but unconstitutional, and it hands transgender litigants another weapon to wield as challenges move forward. The government is almost certain to appeal, but with the Fourth Circuit’s history of favorable rulings on transgender rights, this case has the potential to ripple well beyond the individuals named in the lawsuit.

You can read the full ruling here:

Us Dis Mdd 1 25cv1344 D937650411e5707 Memorandum Opinion Signed By Chief Judge George Le

2.37MB ∙ PDF file

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