The State Department issued new guidance on passports with “X” sex markers and applications that request to change a passport sex marker, according to a memo reviewed by NBC News.
The new guidance comes after the State Department suspended all applications for passports and CRBAs, which are birth records for U.S. citizens born abroad, that request an “X” sex marker or a sex marker change, following a memo last month from Secretary of State Marco Rubio.
The policy change resulted in widespread confusion, particularly among the transgender community, about whether passports with an “X” sex marker would be valid for international travel or even confiscated.
According to the new memo, passports and Consular Report of Birth Abroad records that have already been issued with an “X” sex marker are valid until replaced or expired. Travelers who were issued passports with “X” markers within the last year can request to replace them at no cost for passports with a binary “F” or “M” sex marker by submitting a correction form.
The guidance applies to all in-progress passport applications and any future applications received as of last Friday, the memo states.
Under the new guidance, in-process applications requesting an “X” sex marker will be changed to male or female using a review of all available evidence establishing sex assigned at birth, such as a birth certificate, government-issued ID or prior passport record, according to the memo.
If the evidence submitted with the application doesn’t sufficiently establish the applicant’s sex assigned at birth — because, for example, their documentation does not show their birth sex, shows conflicting information regarding their birth sex, only lists an “X” marker or includes a designation like intersex — the application must be suspended, the memo states.
In those cases, the State Department will send a form requesting more information to determine the applicant’s sex assigned at birth. If the applicant still can’t establish their birth sex after providing more information, their application would continue to be suspended. The memo directs employees reviewing applications to carefully review conflicting information and closely consider issuance dates of vital records and any amendments to them.
The State Department will use a similar process for passports and CRBAs requesting a sex marker change to “M” or “F,” using a prior passport record or documentation issued closest to an applicant’s birth to establish their sex assigned at birth, according to the memo. In those cases, applicants would receive a notice to inform them of a change in the biographical data on their new passport, the memo states.
The American Civil Liberties Union filed a lawsuit Friday against the State Department’s passport policy on behalf of seven people who are trans or intersex, meaning they were born with physical traits that don’t fit typical definitions for male or female categories. The suit argues that the policy discriminates against the plaintiffs based on sex and violates their constitutional rights to privacy, free speech and travel.
The State Department did not immediately respond to a request for additional comment.
The changes to passport policies came as a result of an executive order President Donald Trump signed on the first day of his presidency declaring that the U.S. government will recognize only two sexes, male and female, and that “these sexes are not changeable and are grounded in fundamental and incontrovertible reality.”
The executive order regarding sex is among those Trump signed that seek to restrict transgender rights. Trump also signed executive orders that aim to prohibit trans people from enlisting and serving openly in the military, restrict access to transition-related care for minors and bar trans women from competing on women’s sports teams.
