In the News – Trans Passports (Bonus)

With the recent Supreme Court order that allows the Trump administration to enforce discriminatory policies regarding gender markers on passports, we wanted to bring you a short episode that unpacks the case, the ruling, and provides answers to some of the questions we’ve been hearing. Sara is joined In the Den today by Bill Mitchell, an attorney with Legal Voice, a gender justice organization that works in the Northwest’s courtrooms, legislatures, and communities creating and enforcing strong, equitable laws and empowering people to know their rights.

Special Guest: Bill Mitchell

William “Bill” Mitchell (he/him) joined Legal Voice in 2023, following the Dobbs decision and its aftermath.  With a hometown in Bellingham, Washington, Bill previously had a career as a Marine Corps officer and as a private practice attorney focusing on immigration, disabilities, and Veteran benefits.  He has held both elected office and adjudicative appointments.  He is a graduate of Boston College and Gonzaga University School of Law.

Links From the Show:

• Find Legal Voice here: https://legalvoice.org/ 
• Join Mama Dragons today: www.mamadragons.org 

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Transcript

SARA: Hi everyone. Welcome to In the Den with Mama Dragons. A podcast and community to support, educate, and empower parents on the journey of raising happy and healthy LGBTQ+ humans. I’m your host, Sara LaWall. I’m a Mama Dragon myself and an advocate for our queer community. And I’m so glad to be part of this wild and wonderful parenting journey with all of you. Thanks for joining us. We’re so glad you’re here.

Hello Mama Dragons Welcome this bonus In The News episode of In the Den. With the recent Supreme Court order that allows the Trump Administration to enforce discriminatory policy regarding gender markers on passports, we wanted to bring you a shorter episode that unpacks just this case, the ruling and answers some of the questions we’ve been hearing. With us today is Bill Mitchell. Bill is an attorney with Legal Voice, a Gender Justice organization in the Pacific Northeast that works in the courtrooms, legislatures, and communities to create and enforce strong, equitable laws and empower people to know their rights. Bill, welcome to In the Den. Thanks so much for joining us for this bonus episode about the Supreme Court case. I want to just dive right in together because this is a case that so many of us have questions about for ourselves, for our kids, for our trans-beloveds, and it's confusing. It's confusing, a little bit for folks. So if you could start bygiving us just a little context and background of the case, how we got here, and then what this recent Supreme Court action did?

BILL: Thanks so much, Sarah, and it's great to be here with you and speaking to this very important audience. Every day is a new adventure in this current administration and for this time in our society, so it can be very confusing. And this case in particular, has been fast-moving as federal cases go. I think it's important, as you said, to level set, and just sort of get a refresher on where the case began, how we got to this point. And this all began by President Trump following through on one of his campaign promises to issue a handful of executive orders. And this time, the President issued an executive order having to do with sex and gender. And that was way back in January. The idea being that it was an executive order to dismiss with any belief in the idea of gender ideology, and that dismisses a very important truth and reality for a lot of our friends and neighbors who are trans or have trans family members or friends. So the case had far-reaching implications, in particular, to the U.S. State Department, which has the authority for issuing passports, U.S. passports. After the executive order was issued, a lawsuit came forward out of Massachusetts in the federal court. And that case was known as Orr v. Trump. And that case was brought forward as a challenge to under equal protection theories under the Constitution and moved forward into the first Circuit Court of Appeals. At the federal trial court, they issued an injunction saying that the president's executive order could not be enforced. It went up to the First Circuit Court of Appeals, which agreed that the executive order was contrary to existing law.  And then the Trump administration appealed that injunction to the Supreme Court to have the Supreme Court weigh in on it. And the Supreme Court, recently, on November the 6th, issued an order that denies the stay. So that means that the Trump's executive order from January can be enforced now as it applies to passports.

SARA:  Just for clarification for our audience, an injunction by the court is just a temporary stop to the law while the case is proceeding, am I right?

BILL: Yeah, you're 100% right. And the standard is an injunction is appropriate where it looks like the law probably couldn't withstand constitutional scrutiny. That's when an injunction is issued. So here we have the federal court, the first level of the judicial system for a case like this saying that the law probably couldn't withstand constitutional scrutiny. Then it moved up to the appeals court, the First Circuit Court of Appeals, and said, yeah, we agree, it probably can't withstand scrutiny. But then as it goes up to the U.S. Supreme Court. The Supreme Court said, “Ah, we think maybe this one could withstand constitutional scrutiny. So we're going to remove the injunction.” So, now the law can be enforced. It's not even a law. It's an executive order, an executive action. So, that can be enforced now.

SARA:  Which means that the case itself is still awaiting to be officially heard by the Supreme Court. So we're in this weird kind of limbo. But they're allowing the federal government to enforce this standard for gender markers on passports.

 BILL: That's exactly right. And the interesting substance of the appeal to the Supreme Court was that the U.S. government would be irreparably injured if the law couldn't go into effect – if the new executive order, the guidance or policy from the executive branch couldn't go into effect – And in Justice Jackson's dissent on that appeal, she goes into great detail about hey, why haven't we really looked at what kind of injury could befall the plaintiffs in this case? The trans people who really depended on accuracy and the safety that's provided by, a non-binary gender marker on a passport. She said in great detail, and I think really eloquently, spoke about how the government's argument that it would be irreparably harmed was kind of fiction, that it really didn't make any sense. She did a great job in issuing her dissent in that case.

SARA: So I know that you cannot give legal advice. You're here in your role as an attorney. But there is a part of you that does deep dive. This is your work in issues and cases like this. So I am going to ask you about your personal opinion in terms of what the Supreme Court's action in removing this injunction and allowing the federal government to restrict passport markers while this case is happening, kind of what that says for the future of this case, potentially, can you read what the Supreme Court might be thinking it might rule, and just in general, how the court is handling this issue?

BILL: Yeah, this is a tricky one because the Supreme Court sending the case back down and  not maintaining the stay is a little ominous. I don't love that. But it's going back to the Federal District Court, known as the Trial Court, right? So that's where the case first entered the system. And they will bring it out in what's called merits. They will have an opportunity to hash things out between the plaintiff in the case that's Ashton Orr, and then the Trump Department of Justice and Solicitor General on the other side. So, on the bright side, there hasn't been a lot of development of facts. There hasn't been all that much development of legal argument. We still have the opportunity to see that. And I think Justice Jackson kind of telegraphed a couple clues to the parties in the case about how to develop the case further. So there's a chance that the case may end up being more compelling in favor of trans rights as the case moves back through the system. But it is a curious thing because if you have a passport, you know that the passport biometrics page has very little data on it. It has your name. It has your place of birth, your birth date, and your sex. Now, that's not much information on a passport. It also has your photo and the scanning barcode and the other hidden security features of it. But that's pretty much all that's on a passport. And stepping back you might ask, why is sex or gender even pertinent on a passport? If you are the person ostensibly in possession of the passport with a photo representing your true identity, that should really be enough, especially in this day and age when security features are so thorough. But for whatever reason, we still maintain sex as a marker on your passport. And so I hope that that argument is built out a little bit more as the case goes through merits at the, at the federal district court level.

SARA: Thank you for all that. So, I have some hypothetical questions for you that I'm sure are on the hearts and minds of a lot of our folks with sort of different levels of curiosity in their own lives about their own passports and their kids and so on. So I want to just take us through some hypothetical questions that might help people understand their own situations a little bit better. An adult or adult child has a passport already with an X gender marker, lives outside the U.S. but wants to come home over the holidays, and fears passport confiscation. Is there a likelihood that that could happen?

BILL: When we look at these hypotheticals, I think it's most responsible for me to kind of offer a spectrum of what could happen. At the very best, I think an expatriate U.S. citizen or lawful permanent resident with a U.S. passport could come back into the United States with that same passport showing an X marker, because it was a lawfully issued passport when it was issued, right? Still a valid passport. The rules are now different, but the passport, when it was issued, was compliant with passport rules. So, in the best-case scenario, that person could come into the United States as normal. In the worst-case scenario, that person may be screened at a port of entry. And, in the worst case, that passport may be confiscated. That is, in fact, the risk. But I want to offer that spectrum of risk, because the determination of whether to confiscate the passport at that moment largely is under the discretion of the individual Customs and Border Patrol Officer at the port of entry and probably also at the discretion of the supervisory level at that port of entry. So there's a lot of discretion involved. I could foresee that anybody who's using a passport to re-enter the United States at an inspection point, at a port of entry, may be asked to subsequently, correct a passport. And it's important to remember that a U.S. passport is not the property of the individual citizen or lawful permanent resident who's holding it. A passport's the property of the U.S. government. So if they demand return of the passport and correction of the passport back to include data from an original birth certificate. I think the U.S. government at this point has the ability to do so.

SARA:  So there's a real calculation of risk when folks are really trying to think about what their choices are? And I'm hearing a lot of trans folks in my community also say, like, I'm traveling with all of my paperwork, every identity document I can get my hands on just for those who are making the decision to leave the country or come back in, just so that there's extra documentation that I can have. But that's a really distressing prospect. The next question is around experience of travelers who have passports who don't match their expressed gender. So, they've socially transitioned, maybe they've even had a legal name change, but now with the passport situation, right, the passport says something different than they look like, and that can add to some confusion. How do we think about that?

BILL: Yeah, isn't that a funny consideration  because we can use colored contacts. We can color our hair. Many of us can grow facial hair that changes our appearance.  We can put on weight or lose weight. And we can groom ourselves and wear clothing that changes how we look, right? So, really, why is it so important that your photo and your passport looks different from how you appear at a port of entry with that passport? It's a really curious question why our appearance matters so much to people because it really is a matter of individual expression, isn't it? Whether it's just grooming or down to a really fundamental issue of your gender expression. So, I think if you have a valid passport, even if it has an X marker on it or if the sex indicated on your passport does not match the sex as indicated on your original birth certificate, I think is, again, going to be an issue of how do you appear to the inspector at a port of entry? And I think, if all else is in order, you're probably not going to have an issue coming back into a port of entry, but it does remain a risk.

SARA: Thanks. Next question. This is a lot of information. I'm taking in right here. If someone has had a legal name and gender change on all of their other documents. So their ID, their birth certificate, their social security number, they've really kind of gotten it all but the passport is from childhood. Different name and gender marker on that expired passport, and they want to apply for a renewal or a new one with their new legal name and gender, is that recommended right now?

BILL: That's a tough one. So a passport for a child usually has a shorter expiration date. For most adults, it's a 10-year passport. Ten years can really slip by fast for an adult. And your appearance on that 10-year-old passport could look a lot different from how you look today, right? Like, I had all this gray stuff on my beard now. But your question is, should a person who has gone through some steps of a gender transition, should that person apply for a new passport? The fact is that right now is probably a bad time to do that. We have, pending litigation, in this Orr case out of Massachusetts. We also have what is essentially a very hostile policy environment toward trans people at the federal level and down to individual states. As you can see, this matters across the country, because this case Trump v. Orr originated out of Massachusetts. And here in Idaho, where I live and work, it's a big issue here, too. So, it's probably a bad time to renew your passport, frankly. If you decide you want to, I think you have to go in with your eyes wide open that you may run into trouble, a rejected application, for example, could happen.

SARA: Thanks, I appreciate the clarity because I think these are all the kind of confusing scenarios that folks are dealing with, trans beloved in various stages of legal name changes and gender marker changes in their lives, and how does this intersect with all of that? Another question is around, could the government use real ID requirements as a way to strong-arm states into reversing gender markers and driver's licenses? Oof.

BILL: The driver's license, I think the driver's license issue is actually more interesting one than the passport one because you can do a little more with a driver's license, in my opinion. Now, most people have to have their star card. That's the real ID law that requires you to have a new security feature added to your driver's license. And it's necessary for things like domestic air travel. You don't have to travel domestically with a passport, but you do have to have the new security features of the STAR card on your driver's license. But in many states, it's easier to get an amended birth certificate and have your driver's license reflect an amended birth certificate than it is now for a passport. So the rules for passports, in my view, are more stringent than for a driver's license. And the reasons come down to what a law enforcement official is allowed to search and verify during a traffic stop or during any other kind of stop that they may require your identification. So I really think that a star card can still reflect a gender expression or a gender identity more easily than a passport can.

S Thank you. It's holiday season, lots of travel is going to be happening abroad and in domestically, and if folks find themselves in a situation while they're traveling where they are being questioned by TSA, customs, whoever those security officials are around some of these things, and being questioned, or something is confiscated, paperwork IDs, passports – I'm painting a broad brush here – what do we do? Like, what is the course of action in the moment? And then is there recourse, or is there a way that we can report this to the ACLU or other legal entities who might be able to at least collect the information or support the aftermath of that.

BILL: You're asking all the best questions, Sarah, because it really does matter. I come at your question from a position of some privilege. I'm a lawyer. I am a cisgender male. I realized that I can tolerate a lot of risk. I could tolerate a lot of scrutiny. I would know the words in the moment to say to protect my individual rights in the moment. And I would hope that I would have the presence of mind to not be enraged and to handle the situation calmly. And not everybody has that presence of mind.

SARA: So it activates all of the reactionary fear and adrenaline. So, of course, anyone –  it would be understandable –  who might be frustrated, or angry, or scared – and sometimes that looks like angry – those would be appropriate reactions in a time like that?

BILL: 100%, and even folks with enormous amounts of privilege can still become enraged. Yeah, so that affects all of us, doesn't it? So I think your question really has to do with how much tolerance of risk do you have? Can you go into that moment of –  I just think of a hypothetical. Perhaps it’s a time-sensitive thing for you to get home because someone's health is failing and you want to see that person. Maybe that's not the time to put up that resistance in the moment. Maybe it's better to be pragmatic and get through that event without a ton of resistance. But then there are other people who just don't have it within them to comply in advance and it's worth it to put up a little bit of resistance, or a lot of resistance. And it just depends on your individual tolerance, what you can afford to spend in the moment, whether that's resources on legal counsel, or the loss of time. If time's not that critical to you in that moment. And so I don't mean to condemn anybody who just goes along with it, even though it's so repressive, that some people just don't have the ability to withstand that kind of risk. Other people who do have that ability to withstand the risk, I applaud them generously for their ability to do so. And yeah, so it really comes down to an individual decision and circumstances.

SARA:  So, as someone who practices law and has some of those words at your fingertips, can folks invoke their Fifth Amendment rights in that situation, and just choose to remain silent?

BILL: there are a lot of rights that would protect you in that moment, including one called Unwarranted Search. A lot of the efforts to verify sex or gender involve very invasive techniques to determine whether you are of the sex that you say you are or gender depending on how you express. It's really a difficult thing. You have, right now being trans is not a crime, but we are always vigilant about whether that is a possibility, either through allegations of fraud theories or something else. Or if it's just a matter of protecting the integrity of your own body and denying the ability of a law enforcement official of any kind to verify things that they have no business verifying about your body. Yeah, it's a very tough spot to be in this day and age. And I do have a lot of confidence, Sarah, that we're going to see the pendulum swing back to some normality within 3 years. I really do think so. I think that the repression that our trans friends and family members are seeing right now is going to start correcting itself, because I think the forces at the highest level of the government are starting to weaken. And I think we're going to see some changes back for the better.

SARA:  Well, I appreciate that. It is a very scary time. And you just mentioned, sort of identity being criminalized, and we're watching that happen on the federal level incrementally.  We're watching it in really conservative red states. And it is just the very scary moment to look and see what's happening around all of those chipping away at identity, a very personal and private understanding of oneself and how we express that and name that publicly. And then, also, this sort of forced – what I have said feels a little bit like forced house arrest, right? Now it's made it nearly, maybe not impossible, but really painful or difficult for trans folks to leave the country if they so choose. Like, that’s a high risk conversation.

BILL: Yeah, it is a high risk. Yeah, you make a very fine point on that, Sarah. And the tragedy of this is how many policies, both individual states and federal policies, are having the effect of constraining the civic life of our trans friends and family members. It's a strange thing we don't see applied to any other demographic in our society. But trans people are bearing the brunt of this really repressive policy. Yeah, it's basically as you said, putting our trans folks on a house arrest and restricting the ability of trans folks to engage in civic life. That's really a tragedy.

SARA:  And being almost forced to live in the repressive environment if they don't have the means and mechanisms to be able to get out. And that's scary, but I have one last question for you that I think will be helpful for us to end on. Because in this moment, and as we're unpacking this, I have felt my own anxiety start to rise about my own kiddo, and I know that so many of us parents feel that daily, that anxious fear just is pretty constant, because there's just so much that's happening that’s causing that. It's very understandable that we might be freaking out right now. And on the flip side, there are also people, perhaps there are family members in our own lives without proximity to the trans experience, who are putting their heads in the sand. And saying things like, “Oh, no, no, that won't happen, that, this is America.” So, how can we move through this moment and talk about these things in a way that speaks to both, but also in a way that doesn't allow us to lose hope? This is a big question for you.

BILL: Yeah.

SARA: I'm hoping you have the magic answer for us.

BILL: One thing's for sure, even in a complicated philosophical question like that, the first thing, and most important thing, is to center trans people and the experience of trans people in our lives. Like, we have a precious population of trans people who have immense gifts and talents and love to give, and many who don't have the strength of their position due to perhaps a vulnerable spot in their transition journey where they can't really be forthright or vocal. And we have to be sensitive to that. So I think if we center trans people on the experience of people on a trans journey, that's the best place to start from. And I think you, and especially in your church, have done that remarkably. Your congregation is so supportive. If you encounter a friend or family member, perhaps during the Thanksgiving vacation, who has no interface at all with somebody on a trans journey, take the opportunity to explain what that's like for someone you know because even just sharing an anecdote about how that is for a person who's trans can really help to change some minds. But the fact remains that trans people are humans, and they are deserving of our love and our respect. And that's the first place to start.

SARA: Thank you. That's a beautiful reminder for all of us. And, I know that I draw hope from our trans beloveds, who are finding beautiful and uncompromising ways to exist and to resist, and to remind people they're here, they've always been here, they're not going anywhere.

BILL: Absolutely.

SARA: Bill, I really appreciate this time today to unpack all of this. This was really helpful. And I want to thank you for all of the work that you contribute to resisting all of these bad laws in your legal sphere. It really does make every bit of difference. Thank you.

BILL: You're welcome. This is the civil rights issue of our time and I'm glad to be in the fight.

SARA: Thank you so much for joining us here In the Den. Did you know that Mama Dragons offers an eLearning program called Parachute? This is an interactive learning platform where you can learn more about how to affirm, support, and celebrate the LGBTQ+ people in your life. Learn more at Mamadragons.org/parachute or find the link in the episode show notes under links.

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