State Department Got It Wrong in Denying Passport to Intersex Citizen

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July 20, 2016
Dana Zzyym

Lambda Legal today argued in federal district court that the U.S. State Department erred when it refused to issue a passport to Dana Zzyym, a U.S. citizen and Navy veteran who is intersex and does not identify as male or female.

The State Department 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.

From Lambda Legal Staff Attorney Paul D. Castillo:

Dana Zzyym served our country proudly as a member of the U.S. Navy. And yet, Dana was denied a passport, an essential identity document, and is in effect under nationwide house arrest just for being honest on a passport application.

This country is better than that. The discriminatory State Department policy makes it impossible for a person who is inherently neither male nor female to list their gender.

Ironically, the State Department would rather have Dana lie about their gender on a passport application than consider viable solutions already successfully implemented by several countries around the globe.

Dana, 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.

It was only many years later, after serving six years in the U.S. Navy and then attending Colorado State University, where they also worked as a custodian, 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 Organisation Intersex International (OII-USA).

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.”

But, notwithstanding the information on their birth certificate 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.

Lambda Legal on the Case: Zzyym v. Kerry

Castillo added:

Dana was caught in a classic Catch-22. They could either willfully and knowingly lie on the application, in violation of the law, or answer truthfully and be denied a passport. Dana is being deprived of the right to lawfully exit the United States because of personal characteristics, and that’s discrimination, pure and simple.

In the lawsuit filed 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 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.

Several countries currently issue passports with gender markers other than “F” (female) or “M” (male), including Australia, India, Malta, Nepal, and New Zealand. Most countries that offer a third gender marker on their passport use the non-specific “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.

From Dana Zzyym:

When I was a child, I had no say in what was done to me in order to make me ‘fit’ in some acceptable category. I continue to suffer the consequences of those decisions today. But, as an adult, I can take a stand. I am not male, I am not female, I am intersex, and I shouldn’t have to choose a gender marker for my official U.S identity document that isn’t me.

Read the press release.