U.S. Department of State Issues New Gender Policy on Passports

Natalie Hrubos, Esq. on 07/20/2010

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            Last month, the U.S. Department of State took an important step toward eliminating the legal obstacles that transgender people face in attempting to access appropriate identity documentation.  As of June 10, 2010, trans individuals need not provide documentation of “sex reassignment surgery” to change the gender markers on their U.S. passports.  Instead, the federal government will accept documentation of “clinical treatment” appropriate for a gender transition.

            The new policy better reflects the reality that a person’s gender expression or transition need not involve surgical treatment.  Most importantly, the new policy enables a greater percentage of the trans population to obtain gender-appropriate identity documentation.

            The inability to obtain appropriate identity documentation greatly affects trans people’s life experiences and opportunities.  For example, traveling with a driver’s license or passport that does not appear to match one’s gender presentation can expose a trans person to countless forms of mistreatment and abuse, including invasions of privacy, physical violence, and arrest.

            Moreover, a lack of “official” recognition for a person’s gender identity often empowers service providers, employers, law enforcement officials, and other agents and institutions to refuse to recognize or document an individual’s gender identity.  As a result, many trans individuals experience difficult and demeaning exchanges on a daily basis. 

            The new passport policy will enable many trans people to obtain official recognition and documentation for their gender identity and, hopefully, will reduce their exposure to mistreatment and improve their quality of life.  That said, the new passport policy will not remove all legal obstacles for trans people seeking to correct their identity documents.

            First, the new passport policy still requires documentation of “clinical treatment.” This requirement fails to reflect the reality that a person’s gender expression or transition need not involve any “clinical treatment” whatsoever.  Unfortunately, this requirement will continue to serve as a barrier for trans people who have not sought or cannot access “clinical treatment.”

            Second, passports cost significantly more than drivers’ licenses and state-issued identification cards.  Starting July 13, 2010, a U.S. passport will cost $135.  The high cost of a passport will surely prevent many low-income trans people from accessing gender-appropriate identity documentation.

            Additionally, trans people will continue to face the challenges associated with multiple gender classifications.  Even where an individual obtains a gender-appropriate passport, that person may not be able to correct the gender marker on their driver’s license or birth certificate.  This is because most state agencies still require trans people to provide documentation of surgery.

            Thus, whether an individual can correct the gender marker on their birth certificate depends on the policy of that person’s birth state.  Similarly, whether an individual can correct the gender marker on their driver’s license or state identification card depends on the policy of their state of residence.

            The complicated web of policies among the states will continue to create difficulties for trans people until change occurs at the state level as well.  Hopefully, the federal government’s leadership on this issue encourages state governments to change their policies to make it easier for trans people to access appropriate identity documents and to live their lives.