A federal appeals court on Thursday declined to reinstate a Trump administration policy that would have required U.S. passports to reflect the biological sex of their bearer at birth, rejecting the government's request to overturn lower court orders that allow transgender and nonbinary Americans to obtain passports consistent with their gender identity.
A three-judge panel of the 1st U.S. Circuit Court of Appeals said the administration did not “meet its burden to demonstrate a strong likelihood of success on the merits of this appeal,” and that the potential harms to transgender Americans outweighed the possible harms to the government. The panel further concluded the government had failed “to engage meaningfully” with a district court judge’s finding that the passport policy was rooted in “unconstitutional animus toward transgender Americans.”
In its short, unsigned opinion, the appeals court noted that the government devoted only two sentences to challenging the district court’s assessment of the plaintiffs’ animus-based Equal Protection Clause claim. “[A]s a result, the government has failed to meet its burden to secure a stay,” the panel wrote. All three judges on the panel were appointed by President Joe Biden.
The Biden administration’s predecessor had issued guidance that would have limited the way the State Department records sex on passports, prompting lawsuits from transgender and nonbinary people and civil rights groups. Multiple district courts subsequently enjoined the policy, finding that denying passports that align with an individual’s gender identity would cause irreparable harm.
The Trump administration appealed those rulings and asked the 1st Circuit to put the lower courts’ injunctions on hold while the appeal proceeded. By denying the request for a stay, the appeals court left intact the lower courts’ orders that bar the State Department from refusing passports consistent with applicants’ gender identity.
Legal experts and advocates for transgender rights said the appeals court’s decision preserves access to identity documents for a population that civil rights litigators say already faces heightened risks of discrimination and harm when forced to use documents that do not match their gender presentation.
The 1st Circuit’s ruling addresses only the administration’s bid for emergency relief; it does not resolve the underlying merits of the government’s appeal. The litigation remains active in the federal courts, with the State Department’s policies and the courts’ interpretations of equal protection law at the center of the dispute.
The outcome leaves in place the status quo established by the lower courts: transgender and nonbinary Americans may continue to seek passports that reflect their gender identity while the appeals process continues. The appeals panel’s focus on the government’s cursory challenge to the animus finding signals the importance courts place on reasoned engagement with factual and constitutional determinations when parties seek extraordinary relief.
The case is among several legal battles in recent years over how federal agencies record and recognize gender, and it highlights the continuing intersection of administrative policy and constitutional protections for LGBTQ Americans.