How Will the Executive Order on Gender Affect Travelers?

On Jan. 20, 2025, the president issued an executive order addressing the way in which “sex” and “gender” are used by the federal government, including as an identifier on “government-issued identification documents, including passports, visas, and Global Entry cards.”

Travel advisors have expressed concerns about the effects on passport holders with X gender indicators who are now or will soon be traveling outside the United States.

The question is: Are those who have changed their passports to an X gender marker still able to use them? Some advisors have clients scheduled to travel with those passports over the next few months and are concerned they won’t be allowed back into the country.

Subject to the overarching qualification that, in its early days, the implementation of the political and social agenda of the new administration is unpredictable, I believe the answer, unsatisfying as it may be, is that until the administration fully implements the intentions of the executive order through properly adopted regulations, it would be unlawful and unconstitutional for the federal government to deny reentry to United States citizens with valid passports using the X gender marker. Even if I am right about that, however, that conclusion does not have automatic effect, and travelers affected will be at risk.

The reasons for my view can be stated simply, although certain assumptions are essential. I am assuming primarily that the passport was valid when issued and that the federal government accepted and itself placed the X gender identifier on the passport at the request of the passport holder. Having placed its imprimatur on the travel document, the government may not lawfully reject its validity for its purposes until several actions have occurred beyond the issuance of an executive order.

The reasoning behind this is that the processes by which the federal government acts in most cases—and particularly in the case of travel documents—are dictated by statutes and regulations. The statutes are adopted by Congress and approved by the president. Regulations implementing those statutes must comply procedurally with the notice and public comment requirements of the Administrative Procedure Act, 5 U.S.C. §§ 551-559. That act also applies to changes and deletions of regulations. It is, in my view, beyond the power of the president to unilaterally change the law that has been adopted by Congress and fleshed out in regulations through processes established under the APA.

In the situation at hand, other factors also limit the scope of executive branch action. The right to travel has been recognized by the Supreme Court as having constitutional sanction. Travelers with X gender identification have a reliance interest in the validity of those documents that would be defeated if the president could unilaterally abrogate their effectiveness, resulting in the holders of those documents being denied reentry into their country.

There is also substantial reason to question whether all elements of the executive order are constitutionally valid. One example is the question of whether the concepts stated in the order are scientifically correct. They will almost certainly be challenged in lawsuits that will take considerable time to conclude. In another example, the order asserts that the Supreme Court’s decision in Bostock v. Clayton County, which was decided 6-3 only four years ago, has been misapplied. Maybe, but it would be unusual for the court to overturn a decision of such recent vintage that was, in Supreme Court terms, not that close a call.

In any case, the administration’s executive order attempts to achieve a sweeping change in the way in which travel documents, among other things, are used, and this is going to require further work by the government that likely will take some time to achieve. A State Department memorandum reportedly states that “guidance on existing passports containing an ‘X’ sex marker will come via other channels.”

I want to be clear that the statements I have made are not political statements. My views of the president’s actions are irrelevant here. The separation of powers in the Constitution is the ultimate controlling principle. The administration can unilaterally change some things, but where Congress has acted and laws and regulations are in place, the rule is that the president’s power to unilaterally change the law is limited.

At the same time, the president has been clear that he intends to proceed with his agenda at a rapid pace. He may choose to proceed with the new policy as set out in the executive order regardless of the legal issues being raised. Lawsuits related to the policy as it applies to military service have already been filed and may have a bearing on the travel issues. Travelers for whom gender identity issues are relevant would be well advised to consult counsel before traveling. Travel advisors should alert any affected clients to the risks that traveling outside the country on a passport that is inconsistent with the president’s executive order is fraught until the application of the new policy is fully elaborated and the outstanding issues are resolved.