State Department passport rules: What Trump’s order means for trans, intersex, and nonbinary Americans who use the X gender marker

As of last Wednesday, the State Department has suspended a gender-affirming identification option on all American passports.

According to a memo obtained by NBC News, Secretary of State Marco Rubio directed the State Department to suspend any passport applications seeking to either “change a sex marker” or “requesting an ‘X’ sex marker.”

In the memo, Rubio cited an executive order signed by President Donald Trump on January 20, which states that “it is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality.”

Rubio’s memo to the State Department noted that the executive order “specifies government-issued identification documents shall refer to an individual’s immutable biological classification as either male or female.” Here’s what to know about how the new passport rules will impact trans and nonbinary Americans:

What is the “X” gender marker?

The Biden administration officially added an “X” gender marker to passports in April 2022 as an alternative to the standard “male” and “female” designations. At the time, the State Department explained that the “X” was added to ensure that “non-binary, intersex, and gender non-conforming persons” would have a gender-affirming option to select on their passport.

The “X” marker came around a year after the Biden administration began allowing transgender Americans to select their own gender on passports without a letter from a doctor—a policy that was celebrated by queer advocacy groups as a small step toward greater acceptance of trans communities.

Now, it seems that the Trump administration is aiming to both roll back the “X” gender marker and prevent trans Americans from self-selecting the gender listed on their passport.

What does this mean for pending and future passport applications?

Per the memo sent by Rubio, the State Department has been instructed to suspend pending applications that seek either an “X” gender marker or seek to “change their sex marker from that defined in the executive order.”

Given the contents of Trump’s executive order, this wording would seem to mean that trans Americans are currently barred not only from choosing the “X” option, but also from changing their listed gender within the male/female binary.

Fast Company reached out to the State Department for clarification on this point, and will update this story will any new details.

The memo noted that future applications under those listed parameters should also be suspended, and added that further guidance for staff would be forthcoming.

On X, queer advocates are warning their followers that attempting to change the gender listed on their passport could present major difficulties.

“PSA: If you are trans, do NOT mail in your passport to attempt to change your gender marker,” wrote Ari Drennen, LGBTQ program director at Media Matters for America. “The State Department is currently collecting them unchanged and will not give a public timeline for returning them. You could be without a passport indefinitely.”

Fast Company also requested further information from the State Department on what might happen to suspended passports.

What does this mean for existing passports with the “X” gender marker?

In a statement to the publication NOTUS, White House press secretary Karoline Leavitt clarified that the new passport rules will not retroactively invalidate passports that have already been issued. However, she added, if individuals with an “X” marker were to renew their passports in future, “they just have to use their God-given sex, which was decided at birth.”

What are experts and trans rights organizations saying about the new mandate?

The LGBTQ+ legal advocacy group Lambda Legal helped to secure the first-ever passport with an “X” gender marker.

Early last week, Lambda Legal CEO Kevin Jennings released a statement promising to fight the new passport regulations: “Lambda Legal secured the first U.S. passport with an ‘X’ gender marker for our brave client, Dana Zzyym, and we’ll continue to stand with Dana and all intersex, nonbinary, and transgender people to defend their right to identity documents that accurately identify who they are, and their equal protection rights against targeting and exclusion by their own government,” Jennings wrote.

ACLU attorney Chase Strangio emphasized in an interview with the publication Them that new passport regulations were always going to be one of the easiest ways for the Trump administration to act on its so-called “gender ideology” executive order. Strangio added that, “just because we are seeing immediate action on this part of the [executive order] does not mean that the rest of the EO is going to be immediately implemented across the government.”

In response to Trump’s overarching executive order, the ACLU also published an article titled, “Trump’s Executive Orders Promoting Sex Discrimination, Explained.”

“For decades, feminist legal scholars and women’s rights advocates have opposed efforts to define gender based strictly on biology,” ACLU communications strategist Gillian Branstetter writes. “Recent state laws that use these definitions to discriminate against transgender people have resulted in invasive and traumatizing efforts to determine who ‘counts’ as a man or as a woman, targeting youth who are even suspected of being transgender because they do not conform to sex stereotypes.”

The order, Branstetter continued, “likewise ignores the existence of intersex people and others with variations in sex characteristics beyond the overly-simplistic definitions Trump endorsed.”