Lambda Legal to Tenth Circuit: Affirm Ruling for Nonbinary Intersex Veteran Seeking an Accurate U.S. Passport

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May 9, 2019
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Lambda Legal last night filed a brief in the U.S. Court of Appeals for the Tenth Circuit urging the court to uphold a lower court ruling that the State Department cannot rely on its male-or-female-only gender policy to withhold a U.S. passport from Dana Zzyym, a U.S. Navy veteran who is intersex and nonbinary, and does not identify as male or female.

The brief argues that the district court correctly determined the State Department exceeded its authority under the Passport Act when it denied Dana's passport application based solely on personal characteristics and, separately, the agency did not adequately engage in reasoned decisionmaking, particularly in light of several U.S. states now issuing gender neutral identity documents and that the “X” gender marker is duly authorized by the UN agency charged with setting forth global requirements for passports.   

“It makes no sense that the State Department would insist that a passport applicant be untruthful, much less deny a vital travel and identity document solely based on an applicant’s gender,” Lambda Legal Counsel Paul Castillo said. “Dana has lost countless personal and professional opportunities over the past four years because the agency wants to force them to carry and present false identity documents. No law-abiding citizen should be blocked from leaving the country just because of who they are.”

The State Department originally denied Dana’s passport application because Dana could not accurately choose either male or female on the passport application form, and the form does not provide any other gender marker designation. In November 2018, Dana was among the first Coloradans to obtain a driver’s license with a gender neutral “X” gender marker after the State of Colorado changed its policy in response to Dana’s federal lawsuit against the U.S. State Department.

“It’s absurd that the State Department would rather me just randomly check a box: male or female.  It’s not who I am, and it would expose me to greater scrutiny when my Colorado driver’s license now shows ‘X’” said Zzyym. “I’m not going to lie on my passport application, and I shouldn’t have to.”

Lambda Legal urges the Tenth Circuit to affirm a lower court ruling from the U.S. District Court for the District of Colorado issued in September 2018, preventing the agency from relying on its binary-only gender policy as a basis to deny a U.S. passport to nonbinary intersex citizen, Dana Zzyym.

Background

Dana Zzyym, who uses the gender-neutral pronouns “they,” “them” and “their,” 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.

Many years later, after serving six years in the U.S. Navy and then attending Colorado State University, Dana began researching surgeries and came to understand they had been born intersex. Drawing on personal experience, they began educating the public about issues facing intersex and non-binary people. Dana currently serves as associate director for Intersex Campaign for Equality.

As part of their work, Dana was invited to attend the International Intersex Forum in Mexico City in October, 2014, at which time Dana applied for a U.S. passport. The application requires that the applicant select a gender marker of either ‘male’ or ‘female.’  It also requires first-time applicants to submit evidence of citizenship, such as a birth certificate, which in Dana’s case lists their sex as “unknown.” Notwithstanding the information on their birth certificate and the fact that Dana’s doctors with the U.S. Department of Veterans Affairs confirm Dana was born with intersex traits, Dana’s application for a passport was denied.

In October 2015, Lambda Legal filed a lawsuit in the U.S. District Court for the District of Colorado, asserting that the U.S. State Department violated the due process and equal protection components of the Fifth Amendment to the U.S. Constitution, as well as the federal Administrative Procedure Act, by denying Dana a passport that accurately reflects their gender. The Court issued its rulings in favor of Zzyym on November 22, 2016, on September 19, 2018, and on February, 2019.

At least eleven countries issue passports with gender markers other than “F” (female) or “M” (male), including Australia, Bangladesh, Canada, Denmark, Germany, India, Malta, Nepal, New Zealand and Pakistan. Most countries that offer a third marker in the sex field on passports use “X,” a gender marker option that is recognized by the International Civil Aviation Organization (ICAO), a United Nations agency that sets forth international travel document standards. Additionally, twelve U.S. states and the District of Columbia now permit nonbinary gender options on identity documents, such as drivers’ licenses and birth certificates. Recently, all the major U.S. air carriers announced they would soon follow suit, allowing passengers to select a gender-neutral marker “X” and “U” in addition to male and female when purchasing a ticket. With major U.S. airlines registering passengers with gender-neutral markers, having inaccurate passport could complicate and potentially prevent nonbinary people to travel.

Handling the case for Lambda Legal are Paul D. Castillo, Puneet Cheema, Camilla B. Taylor, and Dru Levasseur, joined by pro-bono co-counsel Emily E. Chow, Ann E. Prouty, and Rory F. Collins of Faegre Baker Daniels LLP.