Legal Update - November 2025

I wanted to provide a more detailed update regarding the recent change at the U.S. Supreme Court regarding passport gender markers, as well as a more positive update regarding recently passed California laws.

Procedural History of Orr v. Trump

Beginning in 2022, Americans were able to select one of three gender markers on their U.S. passports, F, M, or X, without providing any documentation. In January 2025, this rule was immediately revoked, which could be done through Executive Order because it is simply a policy of the Secretary of State, and not a law passed by Congress. In June 2025, a federal judge in Boston ruled that the Executive Order was illegal, and reversed that portion of the Executive Order. Between June and November, Americans were once again able to select their preferred gender marker by signing a simple attestation form.

The U.S. Department of Justice (“DOJ”) appealed the Boston court decision to the 1st Circuit Court of Appeals, which also sits in Boston. The first thing the DOJ did was apply for a stay on the lower court’s order, which, if granted, would have meant that the Passport Administration could continue denying trans people their preferred gender marker while the Appeals Court decided the matter. The 1st Circuit denied that stay, so gender self-selection continued.

Earlier this month, the DOJ appealed the stay to the U.S. Supreme Court. As has become very common recently, it was done as an “emergency order”, which means that it was assigned to a single Supreme Court Justice, in this case, Justice Ketanji Brown Jackson. For reasons unknown to me, Justice Jackson referred this stay to the full Supreme Court, who overturned the stay decision, once again ordering the Passport Administration to issue passports only with the gender marker assigned at birth on the birth certificate.

The interesting thing here is that a stay is a temporary measure. The 1st Circuit Court of Appeals has not decided the appeal fully yet. My educated guess is that that will occur early next year. Assuming the relatively liberal 1st Circuit continues acting as they have been up until now, it is possible that the passport policy will revert to allow gender marker self-selection briefly. However, the DOJ could again apply to the Supreme Court for a stay. 

The only permanent solution here is for Congress to act and pass a law permitting this permanently, but that seems far off. I don’t have great news here; I just wanted to provide all the information.

Binary Gender Markers with the FAA

There was a rumor several weeks ago that people with X gender markers would not be able to fly anymore. This is not true. As most of you know, I personally have an X marker on all of my IDs. The only thing that has changed is, when booking a plane ticket, you must select either “male” or “female”. This does not have to match your ID. This information is available only to the airlines.

Passport Advice

I continue to advise everyone that having a passport with your correct name and incorrect gender marker is much better than not having a passport at all. If you do not have a currently valid passport, you should obtain one. I remain available to help you do this.

If your passport is valid an unexpired, you do not need to do anything. This court case does not impact currently valid passports at all.

I have been working closely with the Bay Area PBS affiliate, KQED, to keep the public informed. The article, which the author has updated several times, is available here: https://www.kqed.org/news/12029428/how-californians-can-start-changing-names-and-gender-markers-on-government-ids.

Positive California Updates

On a more positive note, I want to share information about two new California laws that are beneficial to people updating their names and gender markers. 

S.B. 59 went into effect on October 13. The main purpose of this bill is to make all name-and-gender change petitions confidential, with a few asterisks. First, this law applies to petitions changing both name and gender, or name only for purposes of gender identity. If you have changed only your name and did not check the box attesting that this change is due to your gender identity, this law does not apply. 

For petitions filed on or after July 1, 2026, confidentiality is automatic. For anyone who has filed a petition up to this point, this is not automatic. The law does allow for anyone with a petition filed prior to that date to file an ex parte application with no filing fee. I will be working on a template for this in the near future, and will post it to this website.

S.B. 59 also makes it illegal for anyone (except for the person changing their name/gender) to publicly post information about such a court case. Further, it also specifically names a person’s gender identity as “intimate personal information entitled to protection under the right to privacy.”

A.B. 1084 changes the timelines for future name/gender change petitions, as well as for birth and marriage certificate amendment applications. As most of you know, there has been a mandatory six-week waiting period after court documents are filed; this bill changes the waiting period to only two weeks, in most circumstances.

Even more annoyingly, birth and marriage certificate amendments often take 4-5 months, or even longer. This new law requires the Department of Public Health to issue amended certificates in only two weeks! For anyone who is still waiting for their amended birth certificates, it will likely come soon, as the CDPH is playing catch-up. 

Finally, A.B. 1084 formally eliminated the antiquated and never-enforced rule that said you have to update your birth certificate within 30 days of receiving a court order.