What Recent Developments on the Pending Passport Gender Marker Case Orr v. Trump Means for You
UPDATE as of 11/21/25
We have received bad news: at the time of writing, gender markers on passports must now reflect one’s gender assigned at birth.
On November 6, 2025, the Supreme Court of the United States issued a stay on the preliminary injunction enjoining the State Department’s policy of requiring a person’s gender assigned at birth to be displayed on passports. Put simply, at the time of writing this post, the Orr v. Trump attestation procedure I explained in my August 12th post is no longer in effect.
What this means for current and future passport applicants is that you may be required to supplement your application with “evidence of your sex assigned at birth,” even if your application was submitted before the injunction was stayed on November 6, 2025. Unfortunately, I do not expect any passports issued after November 6 to have a gender marker displayed other than the one assigned at birth, even if all of one’s other documents reflect a different gender.
However, not all hope is lost. We have filed a motion for summary judgment which, given Judge Julia Kobick’s favorable disposition towards our arguments, may very well be granted. If this motion is granted, we have, in effect, won the case and will likely go through the appeals process again. Unfortunately, the Supreme Court has indicated that it is not likely to ultimately rule in our favor and is likely to overturn our motion.
So, what does this mean for passport applicants?
I believe that there will very likely be at least one more window of opportunity, starting within the next few months, to obtain passports with a gender marker other than the gender marker assigned at birth.
My recommendation is have your application filled out and payment ready to submit in anticipation for the start of the next window of opportunity.
At this time, we do not know if we will be required to submit attestations or not during this window, so please stay tuned to this blog for more information.
I have also heard of many people afraid to submit attestations or generally afraid of the State Department invalidating their passports in the future. There is a statute, 22 CFR § 51.62(a)(2), that enables the State Department to “revoke or limit a passport when the passport was illegally, fraudulently, or erroneously obtained from the Department; or was created through illegality or fraud practiced upon the Department.”
I believe that this is the means the State Department may utilize in the future to revoke passports if they decide to do so: claiming that applications seeking a gender marker other than the gender assigned at birth have fraudulently represented their “sex” (as defined by Executive Order 14168).
I want to make it very clear to you that, in my opinion, passport applications submitted legally and in compliance with any standing court orders, such as the former attestation-supplemented applications, seeking a gender marker other than the marker assigned at birth, are not fraudulently obtained. “Fraud” is generally defined as an intentional or reckless misrepresentation of fact. In my opinion, there is no misrepresentation of fact if the application allows the applicant to select a gender marker other than the one assigned at birth and the applicant does so. I believe passports issued with gender markers other than the marker assigned at birth are not revocable on the grounds that they were fraudulently obtained or erroneously issued as long as the application is factually accurate and complies with the relevant State Department procedure and any standing court orders en force at the time the application is submitted.
This is a lot of complicated, constantly changing information and I understand that bureaucracy, even under a less hostile administration, can be daunting to approach as a transgender, non-binary, or intersex person. As one of the Orr v. Trump plaintiffs and a licensed attorney, I am among the first to receive updates pertaining to the case and am able to translate that information into practical advice and action within hours of the law changing.
If you are overwhelmed with the shifting nature of the case and the law surrounding gender markers on passports and want the best chance of getting a passport that accurately reflects who you are, I am available to help. I will be taking clients seeking passports that are affected by the Orr v. Trump case and handling their applications personally, making sure they are correctly completed and submitted as soon as the next window of opportunity presents itself. Please contact me at Zalessky Law Group at info@zalesskylaw.com or call 303-970-9717 to schedule a free consultation with me if you are interested. We are able to help anyone who is eligible for a U.S. Passport
I am very excited to have the opportunity to offer my services to my community and alleviate as much of your passport stress as I can. In times like these, community is everything. Stay strong and we will get through this together.
- Chelle Aurelia LeBlanc