What Employers Need to Know for Passports, Consular Reports Abroad, and USCIS Policy Updates for Transgender, Nonbinary, Gender-Nonconforming and Intersex People

Recent federal executive orders may affect employers navigating identity document policies for transgender, nonbinary, gender-nonconforming, and intersex (TGNCNBI) employees and their family members. Executive Orders have altered the availability of gender markers for U.S. passports and Consular Reports of Birth Abroad (CRBA). These changes impact employees’ ability to obtain accurate identity documents, potentially affecting workplace verification processes and international travel. This article outlines what employers need to know about these policy shifts and their implications for employees and business operations.

As of the date of the publication of this article, a federal court has temporarily blocked the passport policy outlined below on June 17, 2025 in the associated federal court case Orr v. Trump, which will be explained below.

Passports

The Trump administration altered the gender marker options available for U.S. passport applicants. The Executive Order (entitled “Defending Women from Gender Ideology Extremist and Restoring Biological Truth to the Federal Government”), signed on January 20, 2025, recognizes only two genders as that assigned at birth. It directed the Secretary of State to suspend passport applications requesting the X gender marker, and to suspend all passport applications for transgender applicants applying for a passport with a gender marker selected other than that assigned at birth. The Department of State (DOS) advised that in these cases, an application may be delayed in receiving a passport. Applicants may receive a letter/email requesting more information, such as an original birth certificate, or the DOS may issue a passport with the gender marker of the applicant’s sex assigned at birth, based on supporting documentation and DOS records of previous passports.

Importantly, the DOS has advised that all passports of transgender people who passport contains a gender marker other than that assigned at birth and/or with an X gender marker will remain valid until their expiration date.

Consular Reports of Birth Abroad (CRBA)

The DOS issued a directive in response to the aforementioned Executive Order that they will no longer issue CRBAs for transgender people with a gender marker other than that assigned at birth and/or with an X gender marker. Notably, the DOS has also confirmed that CRBAs that have already been issued remain valid until expiration.

As Things Currently Stand

Currently, both the Passport Policy and the CRBA Policy are temporarily halted.

On February 7, 2025, the American Civil Liberties Union (ACLU) filed a federal lawsuit, Orr v. Trump, challenging the Executive Order’s policies to not issue passport for transgender applicants applying for a passport with a gender marker that differs from that assigned at birth and/or applicants applying for a passport with an X gender marker.

As of June 17, 2025, there is a preliminary injunction against the Executive Order and accompanying DOS passport policy.

Additionally, the federal court certified a class of people who are now eligible to continue to apply for passports with X gender markers and/or for transgender applicants. The class members include:

• Applicants who seek a male, female, or X gender marker on their passport to match their gender identity;
• Applicants who do not have a valid passport or whose passport expires within one year;
• Applicants who need to update their passport regarding their name and/or gender marker;
• Applicants who are replacing a lost or damaged passport.

Please note that the government may appeal the preliminary injunction, which would cause the Executive Order and accompanying Passport Policy to be reinstated, affecting pending passport applications.

As federal policies continue to evolve, it is important for employers to stay informed about changes affecting identity documents for TGNCNBI employees and their families. We are closely monitoring federal policy changes affecting this group of employees.

USCIS Updates to the Policy Manual

To remain consistent with the relevant Executive Order, USCIS updated its policy manual to recognize only two genders, male and female, which is the gender as evidenced by one’s birth certificate issued closest to birth. While USCIS has stated that it will not deny benefits because someone does not select their gender marker as that assigned at birth, there may be delays in adjudication. Gibney is closely monitoring this policy as will provide updates as they develop