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Mr. Trump's recent executive order targeting transgender people contains the following clause:

(d) The Secretaries of State and Homeland Security, and the Director of the Office of Personnel Management, shall implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex, as defined under section 2 of this order; and the Director of the Office of Personnel Management shall ensure that applicable personnel records accurately report Federal employees’ sex, as defined by section 2 of this order.

This has reportedly already begun to be implemented within the State Department, with Rubio directing employees to "suspend" all passport applications seeking a change of gender marker, and to cease issuance of passports with an X gender marker.

I recall that Zzyym v. Blinken was the origin of the X gender marker on passports, based on the Administrative Procedure Act and an equal protection claim. Naively, it would seem this order would be subject to the same scrutiny, but I haven't seen any discussion of this. Is there something I'm missing, or should we expect this order to be challenged under similar grounds?

Alexa Schor
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It is predicted that this executive order will face legal challenges. We cannot know whether any will be successful.

See Orion Rummler & Kate Sosin, "Trump’s Day 1 Anti-LGBTQ Orders Will Likely Run Into Legal Trouble":

  • it may contradict an act of Congress, the Prison Rape Elimination Act
  • it may conflict with the Zzyym precedent that you mention in your question

Brandon Wolf of the Human Rights Campaign argues that the executive order is in "direct conflict with much of the opinion in Bostock v. Clayton County, binding precedent from the United States Supreme Court."

I do not claim these arguments will be successful. We cannot know at this point. However they are, in my view, plausible legal claims.

Rummler and Sosin write:

Jennifer Pizer, chief legal officer at Lambda Legal, which fought and won Zzyym’s case, said it’s unclear if the Trump administration can prevail in arguing any legal basis for its executive order.

Jen
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