@StateDept Issues Guidance For Gender Change in U.S. Passports

Posted: 12:03 pm ET

 

We’ve seen reports about the revocation of U.S. passports of at least two transwomen. Revocation typically means the bearer of the passport is not a U.S. national, and that is permanent. Denial of passport applications on the other hand could mean new/additional documents are required before adjudication of the application is completed.  In any case, we’ve asked the State Department for comment about this news and we received the following response from an official, on background:

We have seen reports of a few transgender individuals having difficulty renewing their passports. The Department has not changed policy or practice regarding the adjudication of passport applications for transgender individuals.  While we cannot comment on individual passport applications due to privacy concerns, the Department addresses cases individually, and strives to treat all applicants with dignity and respect. We have provided passport services to transgender individuals for many years, and have extensive instructions for such applications on our website. We cannot comment on individual cases, but are not aware of any revocations of passports for transgender individuals.

The State Department’s travel.state.gov page has a webpage for gender designation change here.

On June 27, 2018, the Bureau of Consular Affairs (CA/PPT/S/A) did issue a policy guidance on Gender Change that appears new with no superseding guidance as best we could tell. They are now now incorporated in the Foreign Affairs Manual under 8 FAM 403.3. So we asked the State Department if this is new guidance and we were told the following:

The Department has not changed policy or practice regarding the adjudication of passport applications for transgender individuals.  The Department’s policy guidelines were introduced on June 10, 2010. Since that point, medical certification of final gender reassignment surgery was no longer a requirement for issuance of a passport in the changed gender. Certification from an attending medical physician stating that the applicant has undergone appropriate clinical treatment for gender transition is acceptable. If CA receives an appropriate certification that transition is complete from a licensed physician, a full-validity passport will be issued.

Per 8 FAM 403.3 dated June 27, 2017 note the following:

a. This subchapter provides policy and procedures that passport specialists and consular officers (“you”) must follow when an applicant indicates a gender on the “sex” line on the passport application with information different from the one reflected on some or all of the submitted citizenship and/or identity evidence, including a prior passport.

b. This policy explains the need for medical certification from a licensed physician who has treated the applicant or reviewed and evaluated the medical history of the applicant regarding the change in gender, as well as the need for accurate identification and a photograph reflecting the applicants current appearance. It is based on standards and recommendations of the World Professional Association for Transgender Health (WPATH), recognized as the authority in this field by the American Medical Association (AMA).

c. A passport is defined by INA 101(a)(30) (Immigration and Nationality Act) (8 U.S.C. 1101(a)(30)) as “any travel document issued by competent authority showing the bearer’s origin, identity, and nationality if any, which is valid for the entry of the bearer into a foreign country.” An individual’s gender is an integral part of that person’s identity.

d. Sex reassignment surgery is not a prerequisite for passport issuance based on gender change.

e. Medical certification of gender transition from a licensed physician as described in 8 FAM 403.3-2 is the only documentation of gender change required. Other medical records must not be requested.

f. A form DS-11 Application for U.S. Passport must be used the first time an applicant applies for a passport in reassigned gender, as personal appearance for execution is required, even if the applicant has a previous passport. A change in gender is a change in the identity of the applicant, and evidence of identity in the new name (if applicable) and gender must be presented. Subsequent applications in the same gender may be submitted on a form DS-82 if the applicant is eligible (see 8 FAM 702.2 regarding eligibility to apply on a form DS-82 and 8 FAM 403.3-3(D) regarding resumption of the birth gender).

The State Department official on background told us that If CA receives an appropriate certification that transition is complete from a licensed physician, a full-validity passport will be issued.”

The June 27  guidance notes that “A full validity U.S. passport will be issued reflecting a new gender upon presentation of a signed, original certification or statement, on office letterhead, from a licensed physician who has treated the applicant for her/his gender-related care or reviewed and evaluated the gender-related medical history of the applicant.” It does not mention the requirement for full transition. When we seek clarification, the same State Department official on background told us the following:

If an applicant is in the beginning stages of transition, a limited passport will be issued to the individual. This can be replaced within two years from the date of issuance for a full validity passport at no-cost to the applicant once CA receives medical certification of the appropriate clinical treatment for gender transition.

The June 27 guidance also says that “The applicant is not required to obtain an amended birth record, amended Consular Report of Birth (CRBA), or to request that the U.S. Citizenship and Immigration Services (USCIS) issue a replacement Certificate of Naturalization/Citizenship reflecting the change of gender.”   But also that “State law in the United States and the laws of other countries vary on whether an amended birth certificate may be issued reflecting a gender change”.  

Applicants are required to provide primary and secondary IDs in their new gender. Th guidance says “Some form of photographic ID must be presented; You cannot use the doctor’s certification as the only evidence to identify an applicant.”

Medical certifications from persons who are not licensed physicians (e.g. psychologists; physician assistants; nurse practitioners; and others) are not/not acceptable.

8 FAM 403.3-8  has the sample letter for licensed physicians certifying to the applicant’s gender change/transition.

The guidance also includes a section on “conversations with passport applicants seeking to document gender change/transition”, for passport adjudicators:

1) As with all passport applicants, you must be sensitive and respectful at all times;
2) Refer to the applicant by the pronoun appropriate to her/his new gender even if the transition is not complete.
3) Ask only appropriate questions regarding information necessary to determine citizenship and identity of the applicant.

Read more here.

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