Among the more than two dozen directives signed by Donald Trump on the very first day of his second term as president, one, Executive Order 14168, is already having negative impacts on transgender, intersex and nonbinary people who need to travel outside the United States. And both nationally and in our region, members of the LGBTQ+ community and their allies are already pushing back.
The Executive Order ironically titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” flies in the face of current thinking among endocrinologists, who no longer support the traditional notion that there are only two possible sexes. According to the American Medical Association, the concepts of sex and gender are both “socially constructed,” and the actual “biological truth” is that one in 50 live births “present[s] with variations in chromosomes, gonadal structure, hormone levels, internal sex organs and/or external genitalia that differ from the expected ideas of male or female. This is referred to as being intersex or having DSD [differences in sexual development].”
Nonetheless, the Trump administration has decided to ignore state-of-the-art science in favor of discredited ideology. EO 14168 has codified the rigid interpretation that there can be only two sexes — determined “at conception,” despite the fact that the hormones that trigger structural sex distinctions don’t activate until an embryo is about eight weeks old — and Trump has directed federal agencies to delete all language in their informational materials referring to “gender.”
Under the executive order, the US Department of State has halted issuing US passports, Consular Reports of Birth Abroad, visas or Global Entry cards with an X marker denoting that the bearer is transgender, intersex, nonbinary or otherwise non-gender-conforming. According to the State Department website, new or renewed passports will only be issued with an M or F sex marker that matches the customer’s assigned “biological sex at birth” (it appears that the widely ridiculed “at conception” specification has been swept under the rug).
As of this writing, the stated policy is that existing passports “will remain valid for travel until their expiration date.” However, anecdotal reports are beginning to surface of nonbinary or trans people being detained for long periods upon reentry to the US after travel abroad, on the basis of their official documents having an X marker. Passport renewals require surrender of the expired document while awaiting reissue, and since the inauguration, people with X markers have been reporting that their passports have effectively been confiscated. The State Department website merely states, “If you submit a passport application requesting an X marker or requesting a sex marker that differs from the sex marker at your birth, you may experience delays getting your passport.”
On the national level
On the national level, the American Civil Liberties Union has spearheaded opposition to the directive, joining with ACLU of Massachusetts and the law firm Covington & Burling, LLP, to file a federal lawsuit on behalf of seven Massachusetts residents who have not been able to obtain passports that match who they are. The case, called Orr et al v. Trump, argues that the new policy is arbitrary and capricious, violates the rights to travel and to privacy under the Due Process Clause of the Constitution, violates the Equal Protection Clause and compels speech from transgender, nonbinary and intersex passport-holders in violation of their First Amendment rights.
On February 7, the same day that the ACLU filed its lawsuit, acting Ulster County Clerk Taylor Bruck sent a letter to US Secretary of State Marco Rubio urging that the new policy be reversed, calling it “misguided” and “not only a step backward in terms of inclusivity and equality, but also an unnecessary deviation from the established and effective procedures for verifying identity and citizenship in passport applications.”
From the practical perspective of an official whose job includes issuing and verifying identification documents for thousands of people, Bruck emphasized the bureaucratic nightmare — not to mention intrusiveness — of adding “a requirement to assess or validate an applicant’s gender” to the duties of passport acceptance agents. From a human rights standpoint, he wrote, “Denying this option [the X marker] now contravenes the rights of individuals to have their identities accurately reflected in official documents.”
Bruck continued, “This policy change risks creating serious practical challenges for nonbinary individuals, including discrepancies between their various forms of identification. Such inconsistencies can lead to invasive questioning, denial of services and even accusations of fraud, which are not just inconvenient but deeply harmful to those who already face systemic marginalization.”
“We haven’t had any instances yet in Ulster County of residents having difficulties, but I expect it’ll start happening soon. Your current passport with an X marker is still supposed to be valid,” Bruck told HV1 last week, after the letter to Rubio was shared with the public. “Part of my fear is that there is so much confusion that you’re going to see issues like this constantly. The rules are changing so fast, without any discussion or due process, that it’s unreasonable for everyone to be on the same page and understand what the current laws are.
“Regarding local officials and what we can do to push back, I think it’s first important for us to speak up so that the members of our community who are under attack know that we have their backs. And I think providing feedback to the federal government is important. As a supervisor myself, feedback from my employees doing the work is the only way I know if a new policy or procedure is working as intended. Local officials are the ones administering these new changes, and without our feedback the federal government won’t know if it’s working or not.”
Another local voice quickly raised in protest of the new passport policy was Village of New Paltz trustee/deputy mayor Alexandria Wojcik, who identified herself in a letter to the editor of this newspaper as “a queer, sometimes gender-fluid local elected leader who proudly uses she/they pronouns.” “Transgender, intersex, nonbinary and other gender-nonconforming people deserve dignity, privacy and the right to travel, just as all people do,” she wrote. “This decision to remove the X marker is unconstitutional, arbitrary and dangerous. Requiring people to have a sex designation on their passport that conflicts with their identity potentially outs them to others.”
Reiterating the ACLU’s argument that the policy violates both the Due Process Clause and the Equal Protection Clause, Wojcik agreed with Bruck’s assessment that it places “undue burdens on government employees tasked with issuing these important documents.” She also cited procedural irregularities of how the new rule was adopted, pointing out that it “did not comply with requirements to provide notice and public comment for changes to government forms.”
In a follow-up interview with HV1, Wojcik elaborated on the due process point, citing federal legislation called the Administrative Procedures Act: “When you change administrative processes, there’s supposed to be a public comment period, and there was none of that. Part of being American is having the opportunity to participate.”
Wojcik, who has declared her intent to contest Bruck for the Democratic Party nomination in the County Clerk race this coming November, admitted that the power of that office in regard to how aggressively to enforce the new rule is limited: “A lot of the processing of the paperwork goes on outside the office of the County Clerk.” However, she said that she thought Bruck could have taken his opposition to the new policy a step further by trying to organize others in comparable positions across New York State. “We all have to check on what Attorney General Tish James is doing every day, and keep processing applications until she says stop processing.”
Like many Americans who feel targeted by the new administration’s policies, Wojcik expressed dismay at what she sees as the sudden loss of decades’ worth of social progress: “The changes that my predecessors fought for have been reversed in not even a whole month… I think the goal is to force people back into the closet and to quash any resistance.” One solution, she suggested, is for more young activists to run for public office, including in rural districts. “I’m worried about the midterms. We should have candidates stepping forward now.”
Name Change Clinic and Town Hall
In the short term, Wojcik has been helping to organize a free Name Change Clinic, to be hosted by the Village of New Paltz at Village Hall at 25 Plattekill Avenue on Thursday, February 27 at 7 p.m. It will be facilitated by the not-for-profit Chosen Family Law Center. The goal of the workshop is to help people “update the name and gender marker on your IDs to reflect who you really are,” and to protect oneself by keeping such designations consistent on all official documents. “I started putting that plan into process at the end of last year, after a couple of constituents came up to me and asked, ‘How do I do this?’” Wojcik said, noting that the legal strategies involved may require some rethinking since the federal policy change. “I’m sure the attorneys are going to be better equipped to address this.”
To learn more about the Name Change Clinic, visit www.villageofnewpaltz.org/name-change-clinic-on-february-27. To register, visit https://forms.gle/f4H4T6J1bc15NJMu9.
Attendees are asked to arrive no later than 6:50 p.m.
There are other signs afoot that, after a month of feeling overwhelmed by the daily onslaught of policy decisions by the new administration that target vulnerable Americans, local constituencies are beginning to harness their energies and organize to push back. The Hudson Valley LGBTQ Community Center — a major voice in our region for the community that will be most impacted by the new passport policy — has announced a Town Hall for Community Connection, Collaboration and Action, to be held at the Center at 300 Wall Street this Wednesday, February 19 at 6:30 p.m.
Passport markers won’t be the only topic on the agenda, according to the Center’s executive director, Richard Heyl de Ortiz. Also much on the minds of the LGBTQ+ community these days, he told HV1, are the recent torture and murder of a transgender man in New York named Sam Nordquist and the removal by the National Parks Service of T, Q and + from the website for the Stonewall National Monument. Heyl de Ortiz described the NPS action as “rewriting history, as it was transgender individuals who were the first to say, ‘Enough is enough.’ We will not have it.”
“This policy, the removal of one’s autonomy and their ability to declare one’s identity, is just another step in a deliberate campaign to erase transgender and nonbinary people. It defies reality. Startlingly, history tells us that efforts such as this are often just part of a process to ‘otherize’ individuals. In this case, the goal is to target a specific group in order to distract us from the real problems of wealth inequity and power that is increasingly concentrated in a small number of men. While one could say that this is just a tactic, real people – us, our friends, neighbors, colleagues and family members – will be and are being harmed in the process. This is also part of a process to create division within our LGBTQ+ community… We must push back and rightfully defend the fundamental human dignity of transgender individuals.”
As with Wojcik, Heyl de Ortiz sees the new passport marker policy as just one small part of a continuum of efforts to force LGBTQ+ people back into the closet. While there has not yet been a flood of local constituents complaining about being refused passports altogether, people are being told, “You can have this only on our terms,” he said. “We’re only beginning to see this unfold. Travel outside the country is less common this time of year. I’m hearing from individuals in the process of renewing a passport who have run into problems. It’s not only ‘an X or not an X.’ An application can be refused if the gender on a person’s birth certificate does not match that on the passport they’re trying to renew. And the process is being held up inordinately long. It’s ratcheting up anxiety for people.”
While the Center does not provide services specifically tailored toward walking its constituents through bureaucratic processes, “If people have legal issues, we are able to refer them to attorneys who are part of the community,” Heyl de Ortiz said. “We can facilitate getting them to someone who might be able to help.” Mental health support is a major component of the Center’s programs: “We can also offer short-term counseling. It’s a free service.”
While the Center’s not-for-profit status puts constraints on its ability to do direct political advocacy or make partisan endorsements, it can serve as a resource for groups who need space, printers and other resources to hold meetings. This week’s Town Hall event is intended to “reinforce a sense of community” both among LGBTQ+ people and with “allies working on related issues,” Heyl de Ortiz explained. “As a community we’ve encountered challenges before. As a community we came through stronger. We have to learn to lean hard on community right now.” Volunteering opportunities will also be discussed, for those who want to get more engaged.
To learn more about Wednesday’s Town Hall, or to register, visit www.lgbtqcenter.org/town-hall. The event will also be livestreamed on Facebook at www.facebook.com/hvlgbtqcenter.
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