A transgender man’s lawsuit challenged a U.S. State Department policy that required transgender applicants present a doctor’s certification to receive a passport that matches their gender identity.
On Oct. 13, 2018, Oliver Morris applied for a passport card, which would allow him to travel by land or sea to Mexico, Canada, the Caribbean, and Bermuda.
Morris chose to apply for a passport card because it’s less expensive than a passport book and he only planned to travel to Mexico by land.
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| Oliver Morris, of Las Vegas, sued the U.S. State Department to challenge one of its policies for granting passports. (Photo Courtesy of Las Vegas Review Journal) |
Morris was born in Modesto, California in 1993. Morris was born physically female and his parents named him, “Chanesse Olivia Morris.”
Morris began identifying as male in Jan. 2015. He formally changed his name on Aug. 21, 2018.
As part of his application, Morris submitted his Nevada driver’s license, which listed his sex as male; a court order changing his name to Oliver Morris; and a birth certificate under his previous name listing his sex as female.
In Jan. 2019, the U.S. State Department sent Morris a letter informing him that he could not receive a passport card, but that he could receive a passport book that would be valid for two years, if he paid an additional fee of $80 and submitted a signed statement from his doctor that certified Morris has had, “appropriate clinical treatment for transition” to his new sex.
Primary Source: State Department Letter
Both passport cards and passport books include an entry indicating the sex of the passport holder.
The State Department’s Foreign Affairs Manual, which outlines the department's policies, states a medical certification from a licensed physician who has treated a passport applicant for gender-related care is necessary for a transgender applicant to receive a passport listing their new gender.
Morris, through his attorneys, informed the State Department that he would not provide a doctor’s certification and requested the department issue the passport anyway.
Morris could only afford hormone replacement therapy, and he received this transition-related care from a nurse practitioner, rather than a doctor.
In a phone conversation in March 2019, State Department officials denied Morris’s request for a passport listing his sex as male without a doctor’s certification, but indicated if he requested a passport card that listed his sex as female, he would receive it.
In April 2019, Morris filed a lawsuit challenging the department’s denial of his passport application. The case, named Morris v. Pompeo, listed U.S. Secretary of State Mike Pompeo as its defendant.
Morris was represented by lawyers from Nevada Legal Services, an organization that provides free legal services to low-income Nevadans.
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| Nevada Legal Services represented Morris in his lawsuit against the U.S. State Department. |
The state department issued a letter formally denying Morris’s application in May 2019.
Primary Source: Denial of Morris’s application
Morris’s amended complaint argued the state department’s certification requirement violated the Equal Protection requirement of the Fifth Amendment and violated his fundamental right to refuse medical treatment.
Morris also argued the policy violated the Administrative Procedure Act, because the department exceeded its authority, and because the policy was arbitrary and capricious.
Primary Source: Morris’s Amended Complaint
History of the policy
In its motion to dismiss the lawsuit, the U.S. government explained the history behind the state department’s policy.
Primary Source: Motion to Dismiss
In 2010, the
State Department adopted a policy requiring a transgender passport applicant to
obtain a certification from a physician in order to receive a passport listing the applicant's new gender.
Under the policy, the physician must provide health care for the applicant and attest that the applicant has had “appropriate clinical treatment for gender transition” or “is in the process of gender transition.”
This policy eliminated the previous requirement that an applicant undergo sex reassignment surgery in order to obtain a passport with a new sex designation.
The Department cited Standards of Care issued by the World Professional Association for Transgender Health (WPATH), which the American Medical Association recognizes as an authority in transgender healthcare.
Lawyers representing the State Department said WPATH standards of care recognize medical professionals play a significant role in the care of transgender patients.
The State Department thus determined an applicant’s physician would be reliable source to verify the applicants sex designation following gender transition.
In its Motion to Dismiss, the State Department argued the certification requirement helps the department verify an applicant’s identity and ensure the accuracy of U.S. passports.
Judge Navarro’s Ruling
On Nov. 23, 2020, Federal Judge Gloria Navarro ruled in Morris’s favor through summary judgement.
Primary Source: Judge Navarro’s Decision
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| Judge Gloria M. Navarro was appointed to the U.S. District Court of Nevada by President Barack Obama after Senator Harry Reid recommended her for the position. Navarro's nomination was confirmed by the U.S. Senate in May 2010 by a vote of 98 to 0. (Photo Courtesy of U.S. District Court of Nevada) |
Morris argued the U.S. State Department had denied him equal protection as required by the Fifth Amendment to the U.S. Constitution.
The Fifth amendment’s due process clause states, “No person shall (…) be deprived of life, liberty, or property, without due process of law.”
The Fifth amendment doesn’t explicitly contain an equal protection requirement, but the U.S. Supreme Court decided in previous cases that the Fifth amendment’s Due Process Clause requires the federal government to ensure that no person is denied equal protection under the law.
Navarro determined the State Department policy treated transgender and cisgender applicants differently.
Navarro cited the Ninth Circuit’s decision in Karnoski v. Trump, a case that challenged the Trump administration’s ban on transgender service members in the U.S. military.
In that case, the Ninth Circuit determined policies that discriminate against transgender people are subject to heightened scrutiny under an equal protection challenge.
The Ninth Circuit Court of Appeals is a superior court to Judge Navarro, which means she is required to follow its precedents.
The State Department argued the certification requirement helps the department verify an applicant’s identity and ensure the accuracy of U.S. passports.
Navarro concluded the State Department failed to meet its burden under heightened scrutiny because it didn’t provide evidence that it has an important interest in verifying a passport applicant’s gender identity or that its policy furthers that interest.
“There is little doubt that the State Department has an interest in accurately representing the identities of U.S. citizens to foreign nations,” Navarro wrote.
“However, the only facet of identity at issue here is a passport applicant’s sex or gender. Defendant has provided no explanation, let alone any evidence, of why the State Department has an important interest in verifying a transgender passport applicant’s gender identity, nor a cogent explanation of why the Policy requiring a physician’s certification increases the accuracy of issued passports.”
“Assuming, arguendo, that Defendant has a substantial interest in verifying transgender applicants’ gender identities, he has not shown why a doctor’s certification substantially furthers the interest with respect to transgender applicants, given that not all transgender persons receive or require physician treatment,” the judge added.
However, Navarro’s decision against the department's physician certification requirement was limited to Morris’s passport application alone.
“Although the Court ultimately rules for Plaintiff in this case, the Court’s decision should in no way be construed to mean that the State Department cannot meet its burden to justify the Policy requiring a doctor’s certification of gender for transgender passport applicants,” Navarro wrote.
“Rather, only with respect to this Plaintiff’s equal protection challenge, the Government has failed to meet its burden in this case.”
Navarro granted summary judgement to Morris based on his Equal Protection claim, and ordered the State Department to consider his passport application, without requiring him to submit a doctor’s certification to obtain a male gender marker.
She ordered the State Department to approve Morris’s passport application if he met all other requirements.
Navarro ruled against Morris on his argument the State Department had violated his fundamental right to refuse medical treatment.
The judge dismissed Morris’s APA claims as moot, because she had already decided in favor of Morris based on his Equal Protection claim.
Appeal
But Morris’s case didn’t end with Navarro’s decision.
On Feb. 18, the State Department, under Biden’s Secretary of State Antony Blinken, notified the district court that it intended to appeal Navarro’s decision to the Ninth Circuit Court of Appeals.
Primary Source: Notice of Appeal
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