The First Amendment Should Protect Trans People’s Passports
Trump’s executive order defining sex made it clear that passport sex markers will now carry an ideological message. The constitution protects Americans from being forced to endorse ideological messages with which they disagree.
Opinion, by Miles Whitney
On the first day of his second term, President Trump issued an executive order requiring that all federal government documents substitute the word “sex” instead of the word “gender.” This order further defined “sex” as immutable and determined at conception, and declared that it is the policy of the United States to recognize only two sexes, male and female and that “sex” is not a synonym for and does not include the concept of “gender identity.” It also required all federal documents, including passports, to reflect these new definitions. This means trans Americans will be forced to carry documentation reflecting an ideological definition of sex they oppose, a breach of their First Amendment rights.
Executive Order 14168 states that using “gender” markers on federal documents expresses a destructive “gender ideology,” asserting that the “… erasure of sex in language and policy has a corrosive impact not just on women but on the validity of the entire American system.” It instructed agencies to remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise “inculcate gender ideology.” Specifically, agency forms that require an individual’s sex would now indicate only male or female and not request gender identity.
The order further declares that “gender identity” “reflects a fully internal and subjective sense of self, disconnected from biological reality and sex and existing on an infinite continuum, that does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex.”
These policies are being challenged in the courts, most notably by the ACLU in Orr v. Trump. Challenges to policies affecting transgender or intersex persons have traditionally been based on equal protection arguments, which may not be effective at least in terms of revocation of passports that have already been updated. It is an open question whether transgender people will be protected under equal protection or substantive due process under the current makeup of the U.S. Supreme Court. For now, the ACLU’s complaint bases its argument in part on equal protection, which proved successful in its efforts to obtain a preliminary injunction pending the resolution of the underlying case.
Court challenges to restrictive laws regarding gender markers have rarely been brought on First Amendment grounds. The Orr complaint does include a First Amendment argument, also repeated in its amended complaint, which seeks to expand its reach beyond the initial named plaintiffs. (In its motion for a preliminary injunction, the ACLU omitted the First Amendment argument and therefore the injunction did not address it. However, these claims remain live in the main case.)
Why are the First Amendment’s protections on speech relevant? Because Trump’s executive order explicitly asserts that using gender markers is expressive of “gender ideology.” As offensive as the claim that trans identity is an ideology may be, it suggests that using a gender marker consistent with one’s gender identity could now be protected speech. The order itself implies“sex” and “gender” markers are speech by asserting that those symbols express a belief in either “gender ideology” or “sex” as defined by the Executive Order.
The First Amendment to the U.S. Constitution provides that “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” This can include acts of expression far beyond speaking or writing, as U. S. courts long ago determined. Wordless actions can be labeled speech whenever the person engaging in them intends thereby to express an idea, where the action is “sufficiently imbued with elements of communication.” (From Spence v. State of Wash., 418 U.S. 405, 409 (1974), citing United States v. O'Brien, 391 U.S. 367, 376 (1968).
One example of protected symbolic speech was the wearing of black armbands by students to protest the Vietnam War. The U.S. Supreme Court determined that the armbands were a form of direct, primary First Amendment rights akin to “pure speech.” (Tinker v. Des Moines Indep. Cmty. Sch. Dist. 393 U.S. 503, 507–08 (1969).)
Under the Executive Order, the Trump administration has made it clear that an “M” or “F” marker is intended to reflect the particularized message that the holder of the document embodies a “sex” that is immutable, binary and determined at birth. Therefore, being forced to use “sex” instead of “gender” on passports and other identifying documents has become “compelled speech” which runs afoul of the First Amendment.
As explained in Board of Education v. Barnette, 319 U.S. 624, 642 (1943) and Wooley v. Maynard 430 U.S. 705, 715 (1977) (Wooley) a person's right to speak freely prohibits the government from compelling adoption of a government message and protects the right of citizens to refrain from speaking. “[W]here the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message.” (Wooley, at p. 717.)
The compelled speech here resembles Doe 1 v. Marshall 367 F. Supp. 3d 1310, 1324 (M.D. Ala. 2019), where the state of Alabama required certain individuals to have the words “CRIMINAL SEX OFFENDER” printed on state-issued driver’s license. The court found this “badge” to be compelled speech. “The ID cards are chock-full of Plaintiffs' personal information: their full name, photograph, date of birth, home address, sex, height, weight, hair color, eye color, and signature.” … Plaintiffs are associated with their licenses. When people see the brand on Plaintiffs' IDs, they associate it with Plaintiffs. The dirty looks that Plaintiffs get are not directed at the State.” (Doe 1 v. Marshall, 367 F. Supp. 3d 1310, 1326 (M.D. Ala. 2019).
Applying these elements to gender markers on passports is straightforward: 1) Speech. Gender markers on passports are speech. An “M” or “F” conveys a message that the holder is either the male or female “sex” as defined by the Executive Order; 2) To which the person objects. Most transgender or nonbinary persons would object to having a “sex” rather than “gender” marker on their identifying documents and disagree with the policies expressed in the Executive Order; 3) That is compelled. A passport is the only means by which a citizen may travel outside the country and serves other important interests. There is no alternative. To have a passport, the citizen must carry a “M” or “F” “sex” marker; 4) That is readily associated with the person. Like Alabama’s ID cards, a passport is “chock full” of the holder’s personal information. The speech is associated with the holder, not the state.
If a symbol conveys pure speech, the courts apply strict scrutiny to any attempts to restrict it. Laws that target speech based on its communicative content are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. (Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 171 (2015).) To satisfy the narrow tailoring requirement, the government must show the law is the least restrictive alternative of achieving the government interest. (Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666 (2004).) This is a high bar to clear.
The free speech approach has succeeded before. One California case held that under the First Amendment, a willful refusal to use a transgender person’s preferred pronouns conveyed disagreement with the concept that a person's gender identity may be different from the sex the person was assigned at birth, and that misgendering conveyed an ideological message. (Taking Offense v. State 66 Cal.App.5th 696 (2021).) Trans Americans should not be forced to convey the government’s ideological message that they do not exist, or that their gender identity is a lie. The First Amendment should be used to challenge the use of “sex” instead of “gender” on federal documents and beyond (as Orr seeks to do), with the Executive Order being Exhibit A.
Miles Whitney is a queer, trans, Jewish attorney and writer living in Sacramento, California.
Miles’s work has been published in OfTheBook Press, The Jewish Writing Project, Current, Slate and Liberal Currents, among others. His novel, Midlife Musical, is due out in 2025 and his collection of essays, “The Thirteen Attributes: On the Death of my Daughter,” in 2026.