Passports
Second-class citizenship in the United States of America
Note: I’m working on my most in-depth project for this Substack yet that I’m excited to share around the holidays, but for now, consider this a palate cleanser.
This is a bit off the usual Hudson Line beat. I just spent 13 months planning my days around a mayoral campaign that may be the most consequential thing I’ll ever participate in, and there’s nothing like that to blur the slow, awful drip of federal news in the background. But not all of it could be tuned out.
Buried in the slurry of executive orders was an instruction to stop recognizing changes to the sex marker on U.S. passports. Passports didn’t even list sex until the late 1970s, and from then on the State Department’s practice, in one form or another, has been to accept updated court orders and medical documentation and change the marker accordingly. It was boring, bureaucratic, and broadly uncontroversial; the details of who qualified and what paperwork they needed shifted over time, always in the direction of making the process easier.
This year, that direction flipped. In addition to cutting off changes going forward, this State Department has, upon renewal, trawled through applicants’ prior passports and reverted them to sex markers from decades earlier. This is not an anti-fraud or security measure, or even a return to a policy from half a century ago; it is a brand-new policy whose function is to humiliate transgender people and assert an ideological understanding of their “real” sex.
If you didn’t clock this, or it failed to hold your attention, I don’t blame you. There was a lot going on. At least twenty other things in that period caused more immediate and visible human suffering. Most coverage at the time narrowed the focus to the elimination of the “X” option.
It has gone how so many of these sorts of things go. There’s a class-action; shocking, I know, but issuing people documents that don’t match their name, photo, and physical presentation causes problems at airports and border security, all the way up to invasive strip searches and being accused of having a fraudulent passport. By the summer there was a nationwide injunction, and the federal government again had to change gender markers on passports.
This was the status quo until two weeks ago.
On November 6th, the Supreme Court stayed the injunction on the shadow docket. The unsigned opinion, excluding citations, is 218 words long. Jackson, Sotomayor, and Kagan dissented. The case continues in the lower court, but the government has its permission slip.
Beyond the obvious— the end of injunctive protection for renewing or changing a passport’s gender marker— the Trump administration has also been quietly rewriting the State Department’s sex marker guidance page in rapid succession:
Is my passport still valid if I have an X marker on it, or if it lists a sex other than my sex at birth?
Yes. Your passport will remain valid until its expiration date.
November 7th, 2025
November 14th, 2025
November 17th, 2025
November 18th, 2025
In the space of eleven days, “your passport will remain valid until its expiration date” quietly became “we can declare it invalid under federal regulations whenever we like,” then flickered back and forth between the two. This does not inspire confidence among the hundreds of thousands— perhaps millions— of Americans who have changed their gender marker on their passports. Even officials inside the administration seem to concede that invalidating and replacing even a fraction of those passports would be extremely impractical. There is very little legal precedent for revoking passports at all— mostly for being a tax cheat or Edward Snowden— and even then it runs through a case-by-case appeal process.
It would be hard to argue that a passport issued under the previous policy was “improperly issued.” It’s hard to conjure a serious national security interest here, though some Orr v. Trump filings attempt it with a straight face. It’s hard to imagine any mass measure that doesn’t accidentally sweep up some non-trans people. It’s hard to imagine foreign governments being thrilled about U.S. nationals being stranded in their countries over a domestic culture war. It’s comically unworkable. They’re leaving the door open to it nonetheless. Will my passport be valid tomorrow? I don’t know.
Of more immediate concern is that, in order for a new passport to be issued, an applicant now seems to have to prove their birth sex. This was not the case prior to the injunction, when the State Department would set a passport’s gender marker on the basis of the supporting documents from the oldest passport application on file. This sounds straightforward enough, until you realize that most trans people have no such documentation in the form the government now wants. We already have a case where someone has been effectively denied a passport because they filed amended documentation.
Until recently, in all fifty states, you could file to amend the gender marker on your birth certificate. The criteria varied by state, and a few have outright banned the practice during the current culture war, but especially for people who transitioned some time ago, providing legal documentation of birth sex is simply not possible.
Take me, for example. I was born in New York outside the city, so after transition I filed a gender designation correction with the state. I sent in my only copy of my birth certificate, and I got back an amended one with my post-transition name and gender marker. That document is my birth certificate; it is the one on file in both the town where I was born and with the state of New York. I could not get a copy of the pre-amendment version if I tried, and even if I could, it no longer has any legal standing. Every other document I have has an “F” on it. I genuinely struggle to see how I could renew my passport under this policy even for an “M” marker. I guess I could pray the Catholic church in Fishkill that baptized me kept good records.
My birth certificate also solemnly records under the raised seal of the town clerk the immutable truth that my parents lived on Hy Vue Avenue when I was born. They didn’t; it’s Hy Vue Terrace, and I’ve never bothered to fix it. If I dug up a vintage bank statement and had New York amend it, is that really the metaphysical hill the federal government wants to die on?
It doesn’t take much imagination to think of some very ugly historical examples of what happens when states start playing games with travel documents; I’m just not especially interested in getting dismissed as hysterical by spelling them out. Even if you buy “birth sex” on passports as a principle, what the government is actually demanding is functionally impossible for most trans people to satisfy. In practice, an entire class of people has been stripped of the right to a U.S. passport without even the veneer of due process or a merits argument. That is what a modern, bureaucratic second-class citizenship looks like: one tier of people whose documents are dull and stable, and another whose ability to retain existing documents is an open question.
My risk is somewhat mitigated. Thanks to some ancestors who bet on King George and lost, I have a Canadian passport. My lived experience of this proud second homeland consists of two visits to Montreal— once as a bored seven-year-old, once this summer to get fingerprinted in an office park. I have a stray pile of Canadian coins I found in pocket change and a Blue Jays hat I only wore during the World Series. I didn’t claim it out of sentiment; I claimed it because the one I was born in and have lived my entire life in has started treating my ability to leave as a policy question. Most people I know don’t have this arbitrary luxury.
Gallup ran the numbers in June: 66% of Americans say a person’s “birth sex” should appear on government documents. On a survey instrument, that’s a handsome, latent supermajority. “Birth sex” sounds like common sense, “merely attesting to a historical fact,” as the Supreme Court put it. It has the same antiseptic, focus-grouped feel as all the other well-polling abstractions— “secure borders,” “law and order,” “parental rights.” It’s the sensible, moderate position to take as long as you don’t think about it too long.
In my actual day-to-day life, this whole debate feels deranged. I have not been misgendered by a stranger offline in two years. Bartenders, TSA agents, cashiers, classmates, neighbors, random old ladies asking for directions— everyone just reads what’s in front of them and moves on. The only people who don’t are petty people who knew me as a child and choose to, and the 10% of anonymous Twitter guys who bother checking my bio for the trans flag instead of defaulting to misogyny.
When people talk about “biological reality,” this is the reality I actually live in: in the material world, my gender is unremarkable and uncontested, the most apparent idiosyncrasy being my affinity for chore coats and baseball caps, and only a problem when some institution has an ideological investment in denying it. This is a meltdown of elites, politicians, courts, and reactionary activist groups screaming fire where there is no smoke.
They’re winning.
Media— with the obvious exception of the right-wing press— has made a conscious choice since the election to not really talk about these issues. We do not poll well. Maybe this nets Democrats 1,200 votes in Fairfax County. When these issues are discussed, the articles are peppered with nuance: those Gallup numbers, “single-sex space advocacy groups,” and the subsurface cultural consensus that we are all just a bit too uncomfortable to really pay much mind. The adults in the room understand this lacks salience.
The second Trump administration has, of course, been looking for a wedge to separate transgender Americans from their constitutional rights for a while now. An aborted attempt to bar trans people from owning guns actually drew media coverage and even backlash from the National Rifle Association. A top DOJ official was blunt about the theory of the case: “We’re not playing semantics with words like dysphoria. We’re talking about trannies, and we don’t think they should have guns.”
There isn’t a particularly optimistic note to end on. More eyes should be on this. I worry that writing something like this makes it worse, both for the abstract “community” and more viscerally for me as an individual. I leave out information I feel would help establish contingencies because all it takes is one memo to pass up the chain to cull them. It sounds so very quiet out there. It is boring. It is the machinations of a handful of federal bureaucracies and the courts and the text of websites and the anecdotal reports of a small population of individuals. It does not have the sex appeal of so many of the other horrors going on today. But it has implications.