U.S. District Judge Julia Kobick issued an expanded preliminary injunction on Tuesday, barring the State Department from requiring passport applicants to use the sex assigned at birth rather than their gender identity and from eliminating the “X” gender marker option for non-binary individuals. Previously, under earlier policy, transgender people could self-select “M,” “F,” or “X” when applying for a passport.
The restrictions were introduced after President Donald Trump issued an executive order stating it is the official policy of the United States to recognize only “two sexes, male and female,” directing federal agencies to enforce that standard. Secretary of State Marco Rubio subsequently led the State Department’s compliance efforts, attempting to revoke the gender self-identification rule for passports.
Judge Kobick had already granted an injunction in April for the six plaintiffs represented by the American Civil Liberties Union (ACLU). Tuesday’s order broadens protections to include individuals who do not yet have a passport, whose passport expires within a year, who need to update their passport to reflect a name or gender change, or who have had their passport lost, stolen, or damaged.
The Trump administration argued that allowing the older policy to remain in effect would overwhelm the State Department with passport changes and harm diplomatic relations with other countries.
But Kobick, appointed by President Joe Biden, found the administration’s claims speculative and unsupported. “The government has not offered evidence of the number of additional applications… nor identified any specific ways in which the burden… is likely to impede the State Department’s functioning,” she wrote in her decision. The supposed foreign policy concerns, she said, were equally vague and unsubstantiated.
Perhaps most strikingly, Kobick dismissed the administration’s argument that enforcing the older passport policy constituted a “constitutional harm” to the executive branch. She countered that if there were any such harm, it stemmed from an unconstitutional policy affecting thousands of Americans.
“Even assuming a preliminary injunction inflicts some constitutional harm on the Executive Branch,” she wrote, “such harm is the consequence of the State Department’s adoption of a Passport Policy that likely violates the constitutional rights of thousands of Americans.”
The White House responded forcefully to the ruling. Spokeswoman Anna Kelly told CBS News the decision was “yet another attempt by a rogue judge to thwart President Trump’s agenda and push radical gender ideology that defies biological truth.” She added, “There are only two genders. There is no such thing as gender ‘X’, and the President was given a mandate by the American people to restore common sense to the federal government.”
Plaintiffs in the case argued the revised policy violated the Fifth Amendment by discriminating on the basis of sex and transgender status, infringing on their right to travel, and violating their right to informational privacy.
The Justice Department filed an appeal against the initial April injunction last week, signaling that the case may ultimately be headed for the Supreme Court.
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