On Nov. 6, the Supreme Court temporarily allowed the Trump administration to block trans, nonbinary, and intersex people from choosing passport sex markers that align with their gender. The ruling halts a lower-court order and lets the administration enforce the policy while a lawsuit (Orr v. Trump) works its way through the courts—a process that could take five years or longer.
Sex markers only began appearing on passports in the mid-70s, and the federal government started allowing them to be changed with medical documentation in the early ‘90s. For many trans, non-binary, and intersex travelers, this Supreme Court decision creates real safety concerns, as mismatching sex markers on passports can effectively out them.
So what can Washingtonians do right now?
City Cast Seattle spoke with Bryanna Jenkins from the Lavender Rights Project, a Seattle-based organization that provides policy and legal advocacy as well as wraparound supportive housing to the state’s Black and Indigenous gender diverse communities. Bryanna shared advice for navigating this moment, which City Cast Seattle has summarized:
If I live in Seattle and need to get or renew a passport, what do I do?
- If you were born in Washington state, you can request an amendment to the sex listed on your birth certificate with a notarized request form.
- Many local banks offer free notary services to their customers.
- If you have never received a passport before, you can apply for one with this updated birth certificate, and may be able to receive a passport with the correct gender marker.
- Because the State Department will have any previous passports, including sex markers on file, they will default to those.
What if I have an “X” sex marker on my passport and I want to change it?
- If you were issued an “X” passport in the last year, and this latest ruling means safety is a concern, you can submit a DS-5504 to change your marker back to “F” or “M” for free.
- However, the State Department will only issue a marker that aligns with your sex at birth, and do have access to the marker on your last passport.
- If you want to keep what you have, you do have time! The State Department only started issuing “X” markers in 2022, meaning the oldest passports with an X won’t expire until 2032.
What if I wasn’t born in Washington and can’t change my birth certificate, or already have a passport on file with the State Department?
- Washington State still has its own laws when it comes to state-issued IDs.
- You can still update your driver's license in Washington with an M, F, or X on your WA ID, as well as the enhanced ID that allows you to travel to Canada.
- You can also use your enhanced ID for travel within the US.
- The Washington Department of Licensing has all the information you'll need for this process on its website:
- To request a change to a standard ID in person, make an appointment at your local DOL. Bring your current license or state ID card and verbally confirm your gender.
- To request a change to an enhanced ID in person, you’ll also make an appointment at your local DOL. Bring your current license or ID and a completed change of gender designation request form (DOL also provides this form in Russian, Spanish, and Vietnamese).
How long until this case makes its way through the courts for a "final" ruling?
If similar cases are any indication, it could take five years or longer for the case to work its way through the court system. In the meantime, the Supreme Court ruling only applies to the preliminary injunction.
This slowness can feel frustrating and confusing, and also the pace gives advocates time to shift public opinion and support. Though if the case goes back to the Supreme Court, it would make sense to assume the justices would decide the merits of the case along the same ideological lines as the opinion stated in the Nov. 6 majority opinion.
Any advice in the meantime?
Bryanna advises that decisions around documentation should attempt to balance safety and dignity: “You have to ultimately do what feels safest for you, especially if you are someone who has to travel a lot. The goal is to get in and get out safely. Because things are heightened right now, we want to make sure we're moving in ways that can go under the radar. If you want to buck up against the system, that's up to you.”
In other words, as Dean Spade said in an interview on the podcast Gender Reveal, “The most important place to want to see ourselves reflected in our genders is with each other, and not with the government. … There's no shame or blame in choosing whatever is slightly safer for you.”
