Victory! Court Denies Stay; State Department Must Issue Accurate Passport to Nonbinary Intersex Citizen

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February 21, 2019

A U.S. District Court Judge today denied a U.S. State Department request to stay his September, 2018 order which prohibited the agency from relying upon its binary-only gender marker policy to withhold an accurate passport from Lambda Legal client Dana Zzyym, a U.S. Navy veteran who is intersex and nonbinary, 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.

In November 2018, Dana was among the first Coloradans to obtain a driver’s license with a nonbinary “X” gender marker after the State of Colorado changed its policy in response to Dana’s federal lawsuit against the U.S. State Department.

This represents Dana’s third victory in their battle with the State Department to secure an accurate passport. In November 2016, the same district court found the State Department had violated the federal Administrative Procedure Act and ordered the department to reconsider its binary-only gender policy. The State Department doubled-down on its discriminatory male-or-female-only policy to deny Dana a passport, leading to a second ruling last September. The State Department then sought a stay from the District Court judge on complying with his order while the agency appealed the case to the U.S. Court of Appeals for the Tenth Circuit.

“Today, a federal judge has found that there is no defensible reason to delay the issuance of Dana’s passport until after the appeal,” Lambda Legal Counsel Paul Castillo said. “The court rejected the State Department’s arguments as to security, complexity and cost related to producing an accurate passport for Dana, and instead determined that the harm to Dana of lost travel opportunities outweighed whatever harms the State Department claimed. No law-abiding citizen should be precluded from leaving the country simply because of who they are.”

From the Ruling: “If the Department concludes that issuing a single passport to Dana even with appropriate notice will undermine the system of international travel as we know it …it can comply with the judgment by updating its software systems. While this may be a difficult choice for the Department, it is not an impossible choice… Dana has missed travel opportunities for four years throughout the course of this litigation, and Dana would continue to miss travel opportunities if a stay is granted.”

“It has been more than four years since Dana first applied for an accurate passport, and still they wait,” Castillo added. “Several countries around the globe issue passports with gender markers other than male or female. Additionally, eight U.S. states and the District of Columbia now permit nonbinary gender options on identity documents, such as drivers’ licenses and birth certificates. And recently, all the major U.S. air carriers announced they would soon follow suit, allowing passengers to select M, F, X and U when purchasing a ticket. If they can do it, why can’t the U.S. State Department?”

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 their gender as intersex, 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, and on September 19, 2018.

At least ten 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.

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