Trump Admin Says Plaintiffs in Passport Marker Fight Seek to ‘Escape Consequences’

In a heated procedural clash within a high-profile civil rights lawsuit, the Trump administration is pushing back against efforts by transgender, nonbinary, and intersex plaintiffs to accelerate resolution of their challenge to a controversial passport policy.

The Department of Justice (DOJ), in a sharply worded Christmas Eve 2025 filing, accused the plaintiffs—represented by the American Civil Liberties Union (ACLU)—of engaging in “procedural chicanery” to bypass appellate review after a favorable Supreme Court shadow docket ruling.

This latest skirmish in Orr v. Trump, ongoing in the U.S. District Court for the District of Massachusetts, underscores escalating tensions over LGBTQ+ rights, executive authority, and judicial strategy in Trump’s second term. As the case highlights fundamental questions of identity, discrimination, and government power, its outcome could reshape access to accurate identity documents for millions.

The Policy Change: Reversing Decades of Progress on Gender Markers

The dispute traces back to January 20, 2025—President Trump’s first day in his second term—when he signed Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”

The order directed federal agencies, including the State Department, to recognize only binary sex assigned at birth on official documents, effectively suspending policies allowing self-attested gender markers or the “X” option for nonbinary individuals.

This reversal ended a progression that began in the early 1990s, when the State Department first permitted gender marker changes with medical documentation.

The process eased significantly under the Biden administration in 2021 with self-attestation requirements, and the “X” marker was introduced in 2022 to accommodate nonbinary and intersex applicants.

Overnight, the new policy paused or rejected applications from transgender, nonbinary, and intersex individuals, often resulting in passports that mismatched their lived identity. Advocates warn this creates severe safety risks during international travel, employment verification, and everyday interactions, effectively “outing” individuals involuntarily and exposing them to discrimination or violence.

The shift also ignored over 214,000 public comments mobilized by the ACLU opposing the change, with critics arguing it amounts to arbitrary discrimination in violation of equal protection, due process, and the Administrative Procedure Act.

Lawsuit Timeline: From Injunction Wins to Supreme Court Reversal

The ACLU filed Orr v. Trump in February 2025 on behalf of transgender and nonbinary plaintiffs, later amending the complaint to include intersex individuals and seeking nationwide class certification.

U.S. District Judge Julia Kobick, appointed by President Biden, consistently ruled in favor of the plaintiffs throughout the year. In April 2025, she issued a preliminary injunction for the individual plaintiffs, finding a strong likelihood of success on claims of sex discrimination and APA violations.

By June, she certified a nationwide class and extended the injunctive relief to cover all affected individuals seeking new, renewed, or corrected passports. In July, Kobick declined the government’s request to stay her ruling pending appeal, and in September, the First Circuit Court of Appeals upheld the injunction.

The momentum shifted dramatically in November 2025 when the Supreme Court, acting on its shadow docket, stayed Kobick’s order in a 6-3 decision. The conservative majority cited potential irreparable harm to foreign affairs powers and executive discretion, while the liberal dissenters—Justices Sotomayor, Kagan, and Jackson—argued the stay prematurely disrupted settled expectations without full merits review.

Plaintiffs’ Bold Maneuver: Seeking an Indicative Ruling to Dissolve the Injunction

Facing a stayed injunction that blocked immediate relief while prolonging appeals, the plaintiffs pursued an unconventional strategy on December 9, 2025. They filed a motion requesting an “indicative ruling” from Judge Kobick, asking her to signal that she would dissolve the preliminary injunction if the case were remanded from the First Circuit.

This procedural tool, if granted, would allow plaintiffs to seek remand, dissolve the stayed order, and rapidly advance to discovery and a merits trial—potentially securing permanent relief far sooner than waiting for full appellate resolution.

The plaintiffs framed this as the “fastest route to final judgment and the chance for permanent relief,” noting that discovery had been paused during the injunction phase and arguing the current posture left them in limbo.

The DOJ responded with a forceful 10-page opposition filed on December 24, 2025, urging Kobick to reject the motion outright. Characterizing the request as a “transparent attempt to evade the consequences of their own litigation strategy,” the government argued that plaintiffs cannot simply abandon hard-won emergency relief after forcing exhaustive, rapid-fire briefing that drained resources from both sides.

The filing highlighted how plaintiffs aggressively pursued and secured preliminary injunctive relief, class certification, and nationwide application—all at breakneck speed, even opposing government requests for extensions during funding lapses.

Having hit a roadblock with the Supreme Court’s stay, the DOJ contended, plaintiffs now seek to “undo” their victories to moot the appeals and deprive the government of earned appellate review. This, the motion asserted, contradicts plaintiffs’ earlier opposition to dissolution and undermines fairness in litigation.

The DOJ advocated letting the First Circuit fully review the preliminary injunction merits before any further district-level action, warning that an appeal-mooting remand would prejudice defendants without providing plaintiffs interim relief.

What All These Mean?

This procedural standoff illuminates sophisticated tactical maneuvering on both sides. The plaintiffs’ indicative ruling request cleverly exploits the stayed injunction’s awkward position: Dissolution would render the appeal moot (no live controversy remains), potentially remanding the case for swift merits adjudication before a sympathetic district judge who has already signaled strong views on likely success.

However, the DOJ’s grievances about inconsistency and resource expenditure carry substantial weight. Plaintiffs shaped the litigation around urgent injunctive relief, compelling accelerated responses, only to pivot when higher courts intervened.

This reversal denies the government the appellate validation it secured through the Supreme Court’s stay, raising legitimate concerns about gamesmanship and equitable treatment.

At a deeper level, the dispute reflects broader ideological fault lines. The policy embodies the Trump administration’s commitment to recognizing only biological s*x assigned at birth, aligning with conservative priorities on gender issues while rolling back Obama- and Biden-era expansions of transgender protections.

For affected individuals, the stakes extend beyond paperwork: Incongruent passports heighten risks of harassment, detention, or violence abroad, particularly in countries hostile to LGBTQ+ identities.

Legally, the merits turn on whether the reversal constitutes unlawful sex discrimination (potentially triggering intermediate or heightened scrutiny), arbitrary agency action under the APA, or impermissible animus.

Kobick’s prior findings suggest vulnerability on reasoned decisionmaking grounds, given the abrupt shift without new evidence. The Supreme Court’s stay, however, signals deference to executive foreign affairs powers, complicating permanent relief prospects.

Looking at Public Reactions and Ongoing Developments

Public response has divided sharply along partisan lines. LGBTQ+ advocacy groups decried the DOJ’s opposition as prolonging “cruel and unnecessary hardship,” while administration supporters praised the defense of “biological reality” and procedural integrity.

Judge Kobick has yet to rule on the motion, leaving the case in suspense as briefing wraps up. Her decision will likely dictate the pace: Denial extends appellate deliberation, while approval risks higher-court reversal but accelerates potential permanent resolution.

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As this procedural battle plays out, it foreshadows larger confrontations over transgender and nonbinary recognition in federal policy. A merits victory for plaintiffs could restore self-attestation nationwide, affirming evolving standards of dignity and safety.

Upholding the policy, conversely, would cement birth-sex mandates with ripple effects across driver’s licenses, birth certificates, and other documents.

For thousands awaiting accurate passports, the uncertainty endures—many postponing travel or renewals amid heightened risks. This lawsuit stands at the intersection of civil rights, administrative law, and cultural debates, testing the durability of inclusive policies against determined executive reversal.

Developments in Kobick’s courtroom will resonate far beyond Massachusetts, shaping the landscape for gender identity in official records for years to come.

What are your views on balancing procedural fairness with urgent civil rights claims?