Passport Gender Markers After the Orr v. Trump Injunction:What You Need to Know and What You Need to do Next
Only a few hours into the second Trump administration, transgender Americans were faced with unprecedented questions and concerns around trying to navigate the bureaucracy of a hostile regime. One of the areas that has been particularly problematic has been the changing guidance the new regime has issued about how trangender, nonbinary, and intersex people can obtain valid passports and identifying documents which accurately reflect their genders. Following a January 2025 executive order from President Donald Trump barring people from updating the sex designation on their passports, the ACLU filed a federal lawsuit - Orr v. Trump - challenging the State Department’s refusal to issue passports with accurate sex designations on behalf of seven transgender, nonbinary, and intersex people. As a transgender woman myself, an attorney with a focus on identity documents, and one of the named plaintiffs in Orr v. Trump, I am writing this post not as a dry rehashing of the law and the injunction, but rather as a means to give you a practical guide on what you need to do to get a passport with your preferred gender marker. In the next few paragraphs, I will address some frequent situations I have been asked about over the past few months.
For some background context, on June 17, 2025, Judge Julia Kobick issued an order enjoining the Trump State Department’s discriminatory passport policy, allowing applicants to again self-select the gender marker that best reflects their gender identity. On July 2, 2025, the State Department complied with this injunction, providing applicants a procedure to obtain an accurate passport. In order to obtain a passport with a gender marker other than the one assigned to you at birth, you must fill out the Attestation provided on the State Department’s website. This form identifies you as a member of the class certified in Orr v. Trump and will allow you to obtain an accurate passport in accordance with the injunction.
For First-Time Applicants or Those Who Cannot Renew: Apply with the DS-11 form, following the standard procedure. Along with your application, submit a completed Attestation.
For Renewal Applications: Apply with the DS-82 form, following the standard procedure. Along with your application, submit a completed Attestation.
For Data Corrections, Name Changes, and Gender Marker Changes on Passports Issued Within One Year and Limited-Validity Passports: Apply with the DS-5504 form, following the standard procedure. Along with your application, submit a completed Attestation.
Valid Passports with Gender Markers Other than the Marker Assigned at Birth
As things stand at the time of writing, the State Department must allow you to select your preferred gender marker, as was the policy prior to Trump coming to power. What I am unsure of at the moment is how they will treat applications granted before Trump’s inauguration that have gender markers different from the one assigned at birth. I approach this topic with caution, because the regime has indicated in one of their pleadings that they are tracking passport applications utilizing the Attestation so that they can revert those passports if they overturn the injunction in the future.
Therefore, my opinion as to what one in this position should do depends on your tolerance for risk and your specific situation - four of which I lay out below. It is important to note that none of this is legal advice and nothing contained within this post creates an attorney-client relationship.
Your passport is valid with your desired gender marker until at least July 21, 2029: I recommend not renewing your passport. There is too high of a risk of an adverse SCOTUS decision reinstating the regime’s policy and if you renew with the Attestation, there is a chance that your passport will be invalidated if the regime overturns the injunction. You might avoid an invalidation if your passport was issued before Trump’s new policy took effect and they have no Attestation on record for you. While you do not necessarily have to submit an Attestation unless you are seeking to change your gender marker, the State Department has shown that if they suspect an applicant might be trans, they will revert the gender marker or request an Attestation to supplement the application.
Your passport is valid with your desired gender marker, but expires before July 21, 2029 and you have no impending travel: I recommend applying for renewal without the Attestation. The Attestation outs you and puts you on the regime’s watchlist for a potential future invalidation, however you do not want to be caught out during this regime’s term without a valid passport. Therefore, I would apply for renewal without the Attestation to try to get through without being outed as trans. If they discover that you are trans, they will ask you to supplement your application with an Attestation. At this point, I would comply and submit a completed Attestation. Again, better to have a valid passport than be without.
Your passport is valid with your desired gender marker, but expires before June 21, 2029 and you have impending travel: I recommend applying with the Attestation. You do not want to risk delaying your renewal when you have impending travel. If you are willing to take a bit of a risk, you could wait to renew until after your travel, but you run the risk of SCOTUS reinstating the regime’s policy before you can renew.
Your passport is valid with an undesired gender marker and was issued after January 20, 2025: Apply with the Attestation as soon as possible. We may not have this ability for very long and there is a chance that SCOTUS may not overturn the injunction. This is the position I found myself in and what I have successfully done.
This is an uncertain time and we are dealing with a hostile regime that has repeatedly demonstrated that they are willing to violate the rule of law to further their agenda. My opinions take this into consideration as best as possible, however it is impossible to fully explain how to best operate under the law when the government has shown that they do not care what the law is. Therefore, I have provided a practical guide to try to help us all navigate our new reality. As Orr v. Trump proceeds through litigation and new developments arise, I will provide updates here.
The other brave plaintiffs, our incredible attorneys, and I will continue to fight for our right to have documents that reflect who we all are.