United States: State Department Issues Guidance on New Sex Marker Policy for U.S. Passports

Under the revised policy, the State Department will only issue U.S. passports that contain either a male (“M”) or female (“F”) sex marker, and that marker must correspond to the U.S. citizen’s biological sex at time of birth.

In addition, as expected, the agency will no longer issue U.S. passports with an “X” marker for gender identities other than male and female, nor will the agency issue passports listing a male or female sex marker that differs from the passport holder’s biological sex at birth.

The State Department has already changed several U.S. passport application forms to remove a third gender option, and the agency is working to update all relevant forms.

The State Department guidance makes clear that U.S. passports issued under the previous policy remain valid until their expiration date. As such, U.S. citizens who were issued passports with an “X” designation or a male or female sex marker different from their biological sex at birth may continue to use their passports until their expiration, both as documentation of U.S. citizenship and for travel and entry into the United States.

The agency’s guidance states that as long as a previously issued passport has not expired, there are no U.S. government restrictions on the use of the passport. As always, however, travelers should check any restrictions that may be in place for entry to and exit from foreign countries.

Pending U.S. passport applications that request an “X” marker or a marker that differs from the U.S. citizen’s biological sex at birth should not be denied due to the request; however, the State Department guidance indicates that such applications may experience processing delays, and the passport applicant may receive a request for more information. Upon completion of processing, the passport will be issued with a sex marker that matches the applicant’s biological sex at birth, which will be determined based on the applicant’s supporting documents and previous passport records relating to the applicant.

If a U.S. passport applicant’s birth documentation does not indicate the individual’s sex, the individual may still apply for a U.S. passport, but the State Department may contact the individual for additional information. In addition, the agency may request documentation to help establish the individual’s biological sex at birth, in order to assign the sex marker for the new passport.

As noted above, previously issued passports remain valid until expiration. As such, there is no need for an individual with an unexpired U.S. passport that bears an “X” marker or a male or female marker that differs from their biological sex at birth to apply for a replacement passport or a corrected passport; however, if the individual chooses to apply for a replacement passport that reflects their sex at birth, they may do so. If their current passport was issued less than one year ago, they may apply for a replacement passport using Form DS-5504, and they will not need to pay a passport application fee (unless they request expedited processing, in which case only the standard $60 expedite surcharge must be paid). If their current passport was issued more than one year ago, however, the individual would need to apply in person using Form DS-11 and would need to pay all passport fees.

In addition, pursuant to existing procedures, a U.S. citizen can apply for a passport correction if the State Department made a data or printing error on the passport, whether relating to the individual’s sex or other information, such as name or place of birth. The State Department will correct government printing or data errors at no charge if the passport is still valid.

As anticipated, a lawsuit has been filed in Massachusetts federal district court challenging the January 20 Executive Order on which the State Department’s new passport policy is based. In addition to other relief, the lawsuit requests a permanent injunction of the Executive Order’s impact on U.S. passports and passport processing. The case is Orr v. Trump, Case No. 1:25-cv-10313 (D. Mass.).

Unless the State Department’s new passport policy is enjoined at some point, U.S. passport applicants can no longer request an X marker or a sex marker other than their biological sex at birth. U.S. citizens with pending passport applications that requested a marker other than the applicant’s sex at birth should anticipate delays in passport processing and likely requests for additional information and documentation.

Fragomen will continue to closely monitor implementation of the new passport policy and the pending litigation and will provide updates as they occur.