U.S. State Department Passport Policies “Absurd,” Lambda Legal Tells Court

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April 22, 2016

Lambda Legal today urged the U.S. District Court in Colorado to deny the federal government’s motion to dismiss the lawsuit Lambda Legal filed on behalf of an intersex client, Dana Zzyym. The U.S. State Department denied Dana a passport because Dana refused to lie on the passport application form, and the form does not provide any gender marker designation other than “M” for “male” or “F” for “female.”  Some intersex people identify as male or female, and some – like Dana – do not.

Paul D. Castillo, Staff Attorney, who is handling the case along with Hayley Gorenberg, Demoya Gordon, Dru Levasseur, and Camilla B. Taylor, joined by pro-bono co-counsel Michael A. Ponto, Emily E. Chow, Thomas G. Hackney and Bryan L. Lynch of Faegre Baker Daniels LLP and Jessica Kunevicius and Kristin Petri of The Law Office of Jessica Kunevicius, LLC, said:

The U.S. State Department’s flimsy, after-the-fact explanations for denying Dana an accurate passport defy logic, perpetuate stigma and present Dana with an outrageous choice – lie on the passport application or never leave the country. Not only is “intersex” an accurate description of Dana’s gender, but ignoring reality doesn’t make the male-or-female-only passport policy any less discriminatory.

The Department’s arguments in defense of denying Dana a passport – that their application was incomplete because they wrote “intersex” rather than checking “M” or “F,” and that officials couldn’t be sure of Dana’s identity unless they indicated a binary marker – don’t withstand scrutiny. Dana’s birth certificate lists their gender as “unknown,” doctors have confirmed Dana’s gender as intersex and, quite tellingly, the United States admits visitors with “X” or other nonbinary gender markers on their passports from countries that provide for that option. Nothing in the State Department’s brief contravenes the essential fact here: Dana is being deprived of the right to lawfully travel to and from the United States because of personal characteristics, and that’s discrimination, pure and simple.

Dana, who uses “they,” “them” and “their” as singular, gender-neutral pronouns, was born with ambiguous sex characteristics. Shortly after Dana’s birth, their parents and doctor decided to raise them as a boy. As a result, Dana underwent several irreversible, painful and medically unnecessary surgeries that didn’t work, traumatized Dana and left them with severe scarring. It was only many years later, after serving six years in the U.S. Navy and then attending and working for Colorado State University, that Dana began researching the surgeries and came to understand they had been born intersex. Drawing on personal experience, Dana began educating the public about issues facing intersex people. Dana currently serves as associate director for the United States affiliate of the Organization Intersex International (OII-USA).

As part of their work, Dana was invited to attend the International Intersex Forum in Mexico City in October 2014, in advance of which Dana applied for a U.S. passport. The application requires that the applicant select a gender marker of either “F” (female) or “M” (male). But notwithstanding the fact that Dana’s birth certificate lists their sex as “unknown” and the fact that Dana’s doctors with the U.S. Department of Veterans Affairs confirm their gender as intersex, Dana’s application for a passport was denied.

Dana said:

I did all I could to complete an accurate passport application. I was honest and entered the right gender description, but now they call it incomplete. The application process itself is incomplete if it won’t allow an intersex person like me to be truthful, which you would think passport officials would want me to be.

In the lawsuit filed this past October in the U.S. District Court for the District of Colorado, Lambda Legal asserts that the U.S. State Department is violating the Due Process and Equal Protection clauses of the U.S. Constitution, as well as the federal Administrative Procedure Act, by denying Dana a passport that accurately reflects their gender. Several countries currently issue passports with gender markers other than “F” and “M,” including Australia, India, Malta, Nepal, and New Zealand. Most countries that offer a third gender marker on their passport use an “X” gender marker because it is recognized by the International Civil Aviation Organization (ICAO), a United Nations agency that sets forth international travel document standards.

Read the brief and more about the lawsuit, Zzyym v. Kerry, here.

For more information about intersex issues, visit here.

For more information about OII-USA, visit here.