Lambda Legal Client Dana Zzyym Receives First U.S. 'X' Passport

Today, Lambda Legal client Dana Zzyym, an intersex and nonbinary U.S. Navy veteran, became the first U.S. citizen to receive an official U.S. passport with an “X” sex/gender marker, the culmination of their six-year legal battle to get an accurate passport that did not force them to identify as male or female.

“I almost burst into tears when I opened the envelope, pulled out my new passport, and saw the ‘X’ stamped boldly under ‘sex,’” Zzyym said. “I’m also ecstatic that other intersex and nonbinary U.S. citizens will soon be able to apply for passports with the correct gender marker. It took six years, but to have an accurate passport, one that doesn’t force me to identify as male or female but recognizes I am neither, is liberating.”

In June, the U.S. State Department announced it would change its policy to add a sex/gender marker on U.S. passports for nonbinary, intersex, and gender nonconforming persons. That announcement came thirteen months after the U.S. Court of Appeals for the Tenth Circuit ordered the State Department to reconsider its prior decisions denying Zzyym an accurate passport. In that ruling, the court noted that forcing intersex individuals to pick a male or female sex/gender marker in the passport application “injects inaccuracy into the data.”

“I’ve been at this fight for more than a decade,” Zzyym added. “But, with the incredible support and work of Lambda Legal and the Intersex Campaign for Equality, I have a passport that reflects who I truly am; and that will allow for me to attend international conferences in person to continue fighting for the rights of intersex people.”

“This is a momentous day and its significance cannot be understated,” Lambda Legal Counsel Paul D. Castillo said. “After a six-year legal battle with three favorable court rulings, Dana has finally received an accurate U.S. passport. They showed incredible courage and perseverance throughout the case. We couldn’t be more delighted, both for Dana and, as important, for all intersex, nonbinary, and gender nonconforming United States’ passport applicants who will soon have access to the accurate passports they need.”

Dana Zzyym, who uses the gender-neutral pronouns “they,” “them” and “their,” was born with ambiguous sex characteristics. After their parents decided to raise them as a boy, 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.

Dana currently serves as associate director for Intersex Campaign for Equality. As part of their work, Dana was invited to attend several international intersex conferences, but was unable to attend because they did not have a valid passport. Before today, the passport application required that the applicant select a sex/gender marker of either ‘male’ or ‘female.’  First-time applicants are also required 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 confirmed Dana was born with intersex traits, Dana’s applications for a passport were 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 federal Administrative Procedure Act, among other claims, by denying Dana a passport that accurately reflected their sex/gender. The Court issued its rulings in favor of Zzyym on November 22, 2016, and, after the State Department refused to change its policy, again on September 19, 2018. The State Department then appealed to the Tenth Circuit.

With today’s announcement, the United States joins at least a dozen other countries that issue passports with sex/gender markers other than “F” (female) or “M” (male), including Australia, Austria, Bangladesh, Canada, Denmark, Germany, Iceland, India, Malta, Nepal, New Zealand and Pakistan. Most countries that offer a third marker in the sex field on passports use “X,” an option that is recognized by the International Civil Aviation Organization (ICAO), a United Nations agency that sets forth international travel document standards.

More information about the lawsuit can be found here: https://www.lambdalegal.org/in-court/cases/co_zzyym-v-blinkin.

The Intersex Campaign for Equality and its Founding Director, Hida Viloria, played a critical role in bringing Dana’s case forward. For more information about the Intersex Campaign for Equality, visit here: https://www.intersexequality.com/

For more information about people who are intersex and the diversity of gender identities, visit here: http://www.lambdalegal.org/blog/20151026_intersex-101

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