Lambda Legal returned to federal court today on behalf of Dana Zzyym, an intersex citizen and U.S. Navy veteran denied a passport because the U.S. State Department refuses to recognize a gender marker that is neither male nor female.
“Dana has been fighting for almost three years for an essential identity document that accurately reflects who they are,” Lambda Legal Senior Attorney Paul Castillo said. “The U.S. District Court ordered the State Department to reconsider its binary-only gender policy barring use of a third gender marker on U.S. passports. In the year since the Court ruled in favor of our client, the State Department doubled-down on its discriminatory male-or-female-only gender policy, again denying Dana an essential document that identifies who they are. This is unconstitutional and must end now.
“Several countries issue passports with gender markers other than male or female,” Castillo added. “Earlier this year, Oregon and the District of Columbia both implemented a policy to allow their residents to select ‘X’ as a gender marker for their drivers’ licenses and state IDs, and other states will likely follow suit. If both state and federal jurisdictions can do it, why can’t the U.S. State Department?”
In the brief filed today with the U.S. District Court for the District of Colorado, Lambda Legal argues that the State Department is violating the due process and equal protection guarantees of the Fifth Amendment to the U.S. Constitution by treating Dana differently based on their gender, by denying Dana the ability to travel freely, and by compelling Dana to lie about who they are on the passport application form.
“The State Department is preventing me from doing my job and advocating for the rights of intersex people both in the United States and abroad,” said Zzyym, who serves as associate director of the Intersex Campaign for Equality. “I’m not going to lie on my passport application, and I shouldn’t have to.”
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, 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 people. Dana currently serves as associate director for Intersex Campaign for Equality (also known as 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.”
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 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 ruling in favor of Zzyym on November 22, 2016.
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” because it is recognized by the International Civil Aviation Organization (ICAO), a United Nations agency that sets forth international travel document standards.
