State Department Will Accommodate LGBTQI+ Citizens In Passport Designations

The U.S. State Department in a press release dated June 30 announced: 

the Department will be taking further steps toward ensuring the fair treatment of LGBTQI+ U.S. citizens, regardless of their gender or sex, by beginning the process of updating our procedures for the issuance of U.S. Passports and Consular Reports of Birth Abroad (CRBA).

Most immediately, we will be updating our procedures to allow applicants to self-select their gender as “M” or “F” and will no longer require medical certification if an applicant’s self-selected gender does not match the gender on their other citizenship or identity documents.  The Department has begun moving towards adding a gender marker for non-binary, intersex, and gender non-conforming persons applying for a passport or CRBA.  We are evaluating the best approach to achieve this goal.

TLDEF issued a press release reacting to the announcement.

State Department Allows "Israel" To Be Listed As Birthplace On Passports of Americans Born In Jerusalem

Last Wednesday, Politco reported:

The Trump administration is expected to soon announce that the U.S. passports of Americans born in Jerusalem can now mention Israel as the country of birth.

The decision, confirmed by a U.S. official Wednesday, is the latest by President Donald Trump that favors Israel in the long-running Israeli-Palestinian conflict. It could be revealed as early as Thursday, just days before next week’s U.S. presidential election, and it could help Trump as he seeks to turn out evangelical Christians and other voters in his base who strongly support Israel.

Public confirmation of this policy change appears to have been made through a Tweet by Secretary of State Mike Pompeo reading:

Consistent with President @realDonaldTrump's policy, I am happy to announce U.S. citizens born in Jerusalem can now elect to list their place of birth as either "Jerusalem" or "Israel" on their passports. We remain committed to lasting peace between Israelis and Palestinians.

As reported by Al Jazeera, yesterday US Ambassador to Israel David Friedman ceremonially presented the first such passport to Menachem Zivotofsky.

An attempt by Congress to change the passport policy was invalidated by the Supreme Court in 2015 on the grounds that it infringed the President's exclusive power to recognize foreign governments. (See prior posting.)

RFRA Claim For Insisting On Social Security Number In Passport Application Moves Ahead

 In Carmichael v. Pompeo, (D DC, Aug. 28, 2020), three individuals sued the State Department because it insisted that they furnish their Social Security numbers in order to renew their passports. Plaintiffs claim that identifying themselves with Social Security numbers violates their Christian beliefs. The court dismissed most of plaintiffs' claims, but allowed them to move forward, among others, with their claim under the Religious Freedom Restoration Act. The court concluded that plaintiffs had adequately alleged a substantial burden on their religious exercise:

They must choose between adhering to their religious beliefs—the sincerity of which is not challenged by the Government nor questioned by the Court—and receiving a government benefit.

10th Circuit Hears Oral Arguments On Passport Gender Markers

The U.S. Court of Appeals for the 10th Circuit yesterday heard oral arguments (audio of full arguments) in Zzyym v. Pompeo. In the case, a Colorado federal district court held that the State Department's policy on passport gender designations is arbitrary and capricious under the Administrative Procedure Act. (Full text of district court's 2018 opinion). The Department requires selection of "M" or "F" as gender on passport applications, and refused to allow plaintiff who is an intersex individual to select "X" as a gender marker. Lambda Legal's case page has extensive additional information and links to pleadings, briefs and decisions in the case.