Gender Markers in U.s. Passports and Vermont Ids: Advising Clients in Arapidly Developing and Uncertain Landscape

• Citation: Vol. 51 No. 1
• Year: 2025

Gender Markers in U.S. Passports and Vermont IDs: Advising Clients in a Rapidly Developing and Uncertain Landscape Vol. 51 No. 1 Pg. 28 Vermont Bar Journal Spring 2025

by Alexander M. Dean, Esq.

President Trump's recent Executive Order 14168, concerning gender markers in U.S. Passports, has created confusion among attorneys and passport holders as to whether certain passports remain valid. Based on current informal guidance by the U.S. Department of State (DOS), as of the date of this writing, those passports remain valid but cannot be renewed such that the marker does not match the holder's "biological sex." How DOS and other agencies will confirm "biological sex" remains to be precisely seen, and pending litigation may bring Executive Order 14168 into question. Until then, the current delays experienced by passport renewers demonstrate that passport holders should refrain from renewing passports not otherwise expired or expiring, particularly if intending to change their designated gender marker. However, most Vermont driver and non-driver ID holders have no present reason to modify their state documentation.

This article provides the basic history of U.S. Passport gender markers, the impacts of Executive Order 14168, and gives caution to attorneys advising clients with otherwise-valid passport holders intending to renew their passport to change gender markers.

History of U.S. Passport Gender Markers

For many years, the DOS took a "binary approach"—as the Tenth Circuit described—to identifying a passport applicant's sex.^[1] Passports did not contain a "gender" or "gender identity" designation, instead characterizing all applicants as either "male" or "female" under the "sex" designation.^[2]

This changed under the Biden Administration in the aftermath of litigation brought by Dana Zzyym, an intersex passport applicant and U.S. Navy veteran.^[3] Before President Biden's DOS began updating its procedures in mid-2021, passport applicants were required to submit medical certification if their self-selected sex did not match the sex or gender listed on supporting identity documents.^[4] On June 30, 2021, the DOS began allowing applicants to self-select their "gender"—rather than "sex"—as either M or F, without the need for medical certification.^[5] On October 27, 2021, the DOS issued Dana Zzyym the first ever U.S. Passport with a third "X" gender marker.^[6]

The Current Situation

On January 20, 2025, the date of his second inauguration, Trump signed Executive Order 14168, titled "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government." ^[7]

Among other things, the Order provides for definitions of "men" and "women" that correspond to "male" and "female," respectively, and directs the Executive Branch to "'enforce all sex-protective laws to promote" those definitions.^[8] The Order further states that:

The Secretaries of State and Homeland Security, and the Director of the Office of Personnel Management, shall

implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder's sex, as defined under section 2 of this order.... Agency forms that require an individual's sex shall list male or female, and shall not request gender identity.^[9]

The Order also revoked several Biden Administration Executive Orders aimed at protecting LGBTQ+ rights.^[10]

As of this writing, the DOS has published minimal guidance on the scope of Executive Order 14168's impact on federally issued government documents such as passports.^[11] Information about changes to DOS procedure has primarily been obtained via internal memoranda reported by the press. On January 23, 2025, the Guardian reported on an internal cable from newly appointed Secretary of State Marco Rubio directing that "sex, and not gender, shall be used" in official DOS documentation such as passports.^[12] DOS staff were ordered to immediately "suspend any application requesting an X sex marker" or "where the applicant is seeking to change their sex marker."^[13]

In response to press inquiries, the White House confirmed that the Executive Order is not retroactive, and that existing passports remain valid.^[14] However, Rubio indicated in his cable that "guidance on existing passports containing an X sex marker will come via other channels."^[15]

The only guidance provided over the months since is contained on the DOS website: "All passports - including those with an X marker or those listing a sex different from your sex at birth - will remain valid for travel until their expiration date, under International Civil Aviation Organization (ICAO) policy."^[16] Assuming this policy stands, a "passport will remain valid until its expiration date."^[17]

Reasons for Concern

The current federal guidance remains confusing and uncertain, to say the least. While it's clear that "X" gender markers on passport renewals and applications will no longer be processed, confusion exists in the case of individuals renewing, applying, or looking to modify passports between the "M" and "F" markers. For instance, if an applicant assigned female at birth had a passport with an "F" marker, then submitted the pre-2021 medical certification required to change their passport to "M," can they renew their passport with "M"? Or is that individual required to revert to using "F" per the language of Executive Order 14168?^[18] Ironically, the latterwould amount to a "change" of the Marker, which Rubio's internal cable specifically prohibits. Meanwhile, the White House now asks passport applicants to state their "God-given sex, which was decided at birth,"^[19] while also stating that "changes" to existing passport...