Immigration

The U.S. Department of State will no longer issue passports or Consular Report of Birth Abroad (CRBAs) with an “X” marker nor sex markers that are different than that at an applicant’s birth. The only accepted gender markers are “Male” or “Female.” This is in compliance to the White House’s Executive Order "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” There are several lawsuits currently pending which challenge this policy. 

If a citizen holds a passport with an X marker or lists a sex other than the biological sex at birth, the passport will remain valid and the citizen can continue to reenter the U.S. until its expiration. The renewal will not honor the X marker and any new passport will be issued according to the sex at birth. If the passport was issued less than a year ago, it can be replaced by mail using Form DS-5504. If the passport was issued more than six months prior, the replacement passport can be issued with a new photograph. If the passport was issued more than one year ago, the applicant must apply in person using Form DS-11.

If a citizen has a pending passport application and has requested an X marker or sex than different at birth, they should expect delays in processing and will receive an email or letter requesting additional information.

Additional information can be found at the Department of State’s website: https://travel.state.gov/content/travel/en/passports/passport-help/sex-marker.html

If you would like to learn more, please contact the Pryor Cashman attorney you work with or one of the attorneys in our Immigration Practice.

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Associate Mary Connelly was a contributing author to this client alert.