Unconstitutional Transphobia: The Reversal of Adjustable Gender Markers on the American Passport

On January 2025, President Trump issued Executive Order 14168 titled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government. The order had two operative effects: it codified the administration’s position that “sex is binary and unchangeable,” and directed federal agencies, including the Department of State, to embed its transphobic position into their administrative practices [1]. Despite all of the pertinent issues in the United States, it was a political choice and a conservative spectacle to issue the order. Although the Trump Administration positioned the order to be specifically beneficial for American security, this idea is false and promotes the idea of transgender Americans as a common enemy. Transphobia is the motivator for such anti-transgender legislation; it is a divisive ideology that has proliferated hate and discrimination against many Americans. 

In response to the Executive Order, the American Civil Liberties Union filed Orr v. Trump (2025) in the U.S. District Court for the District of Massachusetts on behalf of seven transgender and nonbinary plaintiffs who had been unable to obtain passports accurately reflecting their identities. The case focuses on the removal of the ‘X’ gender marker, which served as a neutral third option on U.S passports. Within 24 hours of the Executive Order 14168 being signed, “the state department began holding some passports and other documents (such as birth certificates and court orders)” submitted by gender non-conforming individuals [2]. The U.S Department of State rejected any subsequent applications from gender non-conforming individuals or returned their passports reflecting the person’s sex assigned at birth; subsequently, the ACLU filed Orr v. Trump. This article argues that the passport policy established by Executive Order 14168 violates both the Equal Protection Clause of the Fourteenth Amendment and the informational privacy protections implicit in the Fourth Amendment.

A federal district court issued a preliminary injunction requiring the State Department to issue corrected passport gender markers to the six transgender and nonbinary plaintiffs of the case [3]. This provided a temporary solution, but still left thousands of transgender and non-conforming individuals without these protections. After the preliminary injunction, an Appeals Court preserved passports of many more citizens in June 2025, providing significant opposition to the Executive Order. Orr v. Trump reached the Supreme Court in September 2025, and the plaintiff’s counsel argued that the Supreme Court must strike down the passport policy. Li Nowlin-Sohl, the Staff Attorney for the ACLU, argued that the lower courts have made abundantly clear that the new policy is “discriminatory and baseless” [4]. The Supreme Court’s November 2025 6-3 decision held that the Trump Administration could enforce the restrictive policy, removing the ability for transgender individuals to attest to their preferred passport gender markers [5]. 

The passport policy denies American citizens equal protection and directly violates the Fourteenth Amendment. Commonly invoked to protect LGBTQ+ rights, the Fourteenth Amendment prohibits states from infringing upon citizens’ privileges and immunities, specifically through the Equal Protection Clause [6]. Under the Constitution, states are restricted from making or enforcing any laws that abridge the privileges or immunities of citizens. By forcing citizens to misgender themselves on their passports, the Trump administration abridged citizens’ equal protection rights. Chloe S. Fife in the Virginia Law Review argued how “the recent proliferation of anti-trans legislation amounts to violations of the Fourteenth Amendment’s substantive provisions” [7]. The “substantive provisions” include the Americans' vast protections against unequal treatment under the 14th Amendment. The Executive Order’s passport mandate exacerbated discrimination against transgender Americans without a legally sufficient justification. Written to give Black citizens equal civil and legal rights in America, the Fourteenth Amendment was ratified to protect those excluded from American membership rights. In contrast, anti-trans legislation is designed to exclude the population from American society, similarly to Black civic and social exclusion. Through Orr v. Trump, the ACLU sought to illuminate the provisions of the Equal Protection Clause in favor of the plaintiffs and many other transgender Americans. 

The passport policy clause has further endangered privacy rights by removing the option of disclosure, violating the Fourth Amendment. Americans are therefore entitled to share or withhold information about their identity. The liberty of selective disclosure is implicit in the privacy protected by the Fourth Amendment, according to Elise Holtzman in the Florida Law Review [8]. Holtzman’s focus on privacy establishes a necessary jurisprudence for transgender Americans. Forcibly outing and disclosing one’s assigned sex at birth is unconstitutional due to the intrusion of the government into one's private life. The process of changing gender markers on a passport still involves extensive identity verification. Yet now, transgender Americans will be subject to revealing their transition unnecessarily to not just federal agencies, but all companies, jobs, or verifications that require their passport. Anti-LGBTQ legislation and lawmakers aim to remove the population from American protections such as the Equal Protection Clause and the right to privacy, violating civil liberties enshrined in the Constitution. The ACLU specifically stated that the Trump administration attacked the foundational right to privacy and the freedom of self-expression [9].

While some, including the Trump administration, may argue that this policy will reduce confusion and increase security for travel, it again only endangers American citizens. Roger Servino, Vice President of domestic policy for the Heritage Foundation, a conservative group, explained how objective biology will be brought to America’s pre-eminent IDs, thereby increasing security and preventing fraud [10]. Servino and other conservative politicians felt short of comprehending the immense impact of discrepancies between passports and gender expression. Passports will only misrepresent citizens, confusing private and public actors such as TSA agents, even the executive order claims to serve Americans, but it is doing the opposite.

Those who support the order also fail to recognize that transgender and gender non-conforming individuals have been able to change federal documentation for over thirty years with no issue. The attack upon gender ideology by the order ignores how entangled society and gender diversity are. Assuming someone’s gender based on their outward appearance, clothes, or facial structure uses societally constructed ideas of male and female; you accept gender as a construct in assumptions. Biology does not make women wear dresses and men wear suits; it is rather a social construct that should not be objectively enforced in the law. Bringing seemingly “objective biology” to bureaucratic documents conflates the general and truly objective function the law should embody. 

Fluid gender ideologies have existed for hundreds of years across many different civilizations. Still, we have only recently seen growing trans visibility in America, with more than an estimated 2.8 million transgender Americans according to the UCLA Williams Institute [11]. The Williams Institute recorded that the youngest adult age groups are now significantly more likely to identify as transgender than older age groups, showing an increasing number of Americans who feel comfortable enough to express themselves fully [12]. Therefore, more individuals are being affected by increasingly restrictive federal avenues.

Possessing an inaccurately represented passport will instead lead to disputes, foreign and domestic, that compromise safety, delay processes for travel, and target individuals with prejudiced scrutiny. In the legal blog FindLaw, Vaidehi Mehta discussed stories from plaintiffs of “being harassed by TSA agents” and having humiliating experiences that made them fear for their safety. The plaintiffs also shared that some had to cancel “international trips because they could not get a passport that matched their gender identity,” [13]. The order is certainly increasing security, but it is over-policing American citizens through forms of harassment and mistrust. Gender expression is fluid and personal, and TSA agents do not have a role in the deliberation or decision of one’s identity. Mahta argued that the passport policy is “baselessly transphobic”, and these anecdotes exemplify that, involving federal agencies such as TSA is dangerous for transgender Americans [14]. Internationally, the mismatch between a transgender traveler's appearance and their passport gender marker risks triggering suspicion of fraudulent documents at foreign border controls, exposure that, in some jurisdictions, carries serious legal consequences. 

Anti-trans activists have weaponized the new passport policy as a political tool, catering to conservative beliefs to garner support for the right and the Trump administration. The current administration and other right-wing conservative politicians cater to the foundational beliefs of traditional manhood and womanhood of conservatism, which exclude gender ideology. Since the inception of the United States of America, Americans have established a sense of national unity by creating or focusing attention on a common enemy [15]. Relying “on the perception of danger caused by foreign enemies,” powerful conservative Americans, such as those in the Trump Administration, have abrogated public opinion to create a false sense of unity through hostility. The transgender community has and continues to be a scapegoat and vehicle for gross political gain.                 

Transgender and all LGBTQ+ people must always be protected under the American amendments and laws without question. Lawmakers and ideologies should not be allowed to use the American bodies for political gain or in a political playground. Given the increasing amounts of LGBTQ+ visibility, our society and its systems must adjust to continue to protect its citizens and their rights and privacy. Conservative lawmakers are setting a dangerous precedent that violates the Fourth and Fourteenth Amendments. By allowing this targeting of transgender Americans via federal documentation, the Supreme Court is failing to enforce the Equal Protection Clause and protect Constitutional rights. There needs to be an end to the othering of transgender Americans and refusals to protect citizens. The U.S government should clearly protect transgender Americans in its legislation and practices. Orr v. Trump and the other cases that arose against the discriminatory executive order represent a growing population of Americans who feel free to express their gender and sexuality. The recent Executive Order is unconstitutional in its attacks on Americans, and Orr v. Trump seeks to restore that. Transgender Americans will continue to exist as they always have, and our legislation should protect, aid, and serve them as it does anyone else. 

Endnotes

[1] Charles Ezell and U.S. Office of Personnel Management, “Updated Guidance Regarding Executive Order 14168,” July 10, 2025. 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, July 10, 2025.

[2] American Civil Liberties Union, “Orr v. Trump,” American Civil Liberties Union, March 13, 2026.

[3] American Civil Liberties Union, “Appeals Court Denies Request to Stay Order Preserving Passports for Many Trans, Nonbinary, Intersex Citizens,” American Civil Liberties Union, September 4, 2025.

[4] American Civil Liberties Union, “Appeals Court Denies Request.”

[5] American Civil Liberties Union, “Supreme Court Allows Trump Administration to Enforce Discriminatory Passport Policy,” American Civil Liberties Union, November 6, 2025.

[6] FindLaw Staff, “Equal Protection Cases Based on Sexual Orientation,” FindLaw, July 29, 2022.

[7] Chloe S. Fife, “Congressional Enforcement of Transgender Rights: Remedying Anti-Transgender Constitutional Harms Under the Enforcement Clause,” Virginia Law Review 111, (February 2025): 64-81.

[8] Elise Holtzman, “I am Cait, but it's None of your Business: The problem of Invasive Transgender Policies and a Fourth Amendment Solution,” Florida Law Review 68, no. 6  (November 2016): 1944-1975.

[9] American Civil Liberties Union, “Orr v. Trump,” ACLU, November 6, 2025.

[10] Amy Harmon, “New Passport Rule Sends Blunt and Sweeping Message to Trans Americans,” New York Times, November 17, 2025.

[11] Jody Herman and Andrew Flores, “How Many Adults and Youth Identify as Transgender in the United States?” UCLA School of Law Williams Institute, August 2025. 

[12] Herman and Flores, “How Many Adults”. UCLA School of Law Williams Institute

[13] Vaidehi Mahta, “SCOTUS Puts Transgender Passport Rights on Hold,” FindLaw, November 12, 2025. 

[14] Mahta, “SCOTUS Puts Transgender,” November 2025.

[15] David Donald, “The Creation of The American Enemy,” Vanguard Think Tank. 

 Works Cited 

American Civil Liberties Union, “Supreme Court Allows Trump Administration to Enforce Discriminatory Passport Policy,” American Civil Liberties Union, November 6, 2025, https://www.aclu.org/press-releases/supreme-court-allows-trump-administration-to-enforce-discriminatory-passport-policy. 

American Civil Liberties Union. “Appeals Court Denies Request to Stay Order Preserving Passports for Many Trans, Nonbinary, Intersex Citizens,” September 4, 2025, https://www.aclu.org/press-releases/appeals-court-denies-request-to-stay-order-preserving-passports-for-many-trans-nonbinary-intersex-citizens 

American Civil Liberties Union. “Orr v. Trump,” March 13, 2026, 

https://www.aclu.org/cases/orr-v-trump/page/2#press-releases 

Donald, David. “The Creation of The American Enemy.” Vanguard Think Tank, 2022 https://vanguardthinktank.org/creationofanamericanenemy 

Ezell, Charles and U.S. Office of Personnel Management, “Updated Guidance Regarding Executive Order 14168, Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” July 10, 2025. https://www.dcpas.osd.mil/sites/default/files/2025-07/Updated%20Guidance%20Regarding%20Executive%20Order%2014168-%20Defending%20Women%20from%20Gender%20Ideology%20Extremism%207-10-2025.pdf.  

FindLaw Staff. Legally Reviewed by Laura Temme. “Equal Protection Cases Based on Sexual Orientation.” FindLaw. July 29, 2022. https://constitution.findlaw.com/amendment14/annotation17.html 

Fife, Chloe S. "Congressional Enforcement of Transgender Rights: Remedying Anti-Transgender Constitutional Harms Under the Enforcement Clause." Virginia Law Review Online 111 (2025): 64. https://virginialawreview.org/articles/congressional-enforcement-of-transgender-rights-remedying-anti-transgender-constitutional-harms-under-the-enforcement-clause/.

Harmon, Amy. "New Passport Rule Sends Blunt and Sweeping Message to Trans Americans." New York Times, November 17, 2025. https://www.nytimes.com/2025/11/17/us/transgender-passports-supreme-court.html 

Herman, Jody, and Flores, Andrew. “How Many Adults and Youth Identify as Transgender in the United States?” UCLA School of Law Williams Institute. August 2025. https://williamsinstitute.law.ucla.edu/publications/trans-adults-united-states/ 

Holtzman, Elise. “I am Cait, But it's None of your Business: The Problem of Invasive Transgender Policies and a Fourth Amendment Solution,” Florida Law Review, November 2016. https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1360&context=flr

https://constitution.findlaw.com/amendment14/annotation17.html 

Mehta, Vadehi. “SCOTUS Puts Transgender Passport Rights on Hold” FindLaw. November 12, 2025. https://www.findlaw.com/legalblogs/federal-courts/scotus-puts-transgender-passport-rights-on-hold/ 

Mental Health America. “Transgender Communities and Mental Health | Mental Health America,” November 25, 2025. https://mhanational.org/resources/transgender-communities-and-mental-health/.

Staff of Identity Truth. “What is the Fourteenth Amendment in Simple Terms?” Identity Truth. July 24 2025. https://www.identifytruth.org/post/what-is-the-14th-amendment-in-simple-terms?gad_source=1&gad_campaignid=22827031866&gbraid=0AAAAAoJAPzLfEb0u4cLxjjmYJqLwx7rzp&gclid=Cj0KCQjwkMjOBhC5ARIsADIdb3ecSWAVLXiA_N8AooqvVNndQUaBciYTZD6ThTiop3p1B4kgT_5cdIQaAmwqEALw_wcB