BREAKING: State Department to Allow X Gender Markers on U.S. Passports

The U.S. State Department today unveiled a new U.S. passport gender marker policy and stated it is working towards adding an “X” gender marker for non-binary, intersex, and gender non-conforming applicants. The new policy also highlights that the Passport Office will no longer require medical certification to change the gender marker on U.S. passports. However, the State Department noted it was unable to provide an exact timeline for when the “X” gender marker would be available.

While the lack of a date certain is disappointing, the change represents a victory for Lambda Legal plaintiff and intersex and nonbinary U.S. Navy veteran Dana Zzyym – who does not identify as either male or female – and countless other passport applicants who are nonbinary and/or intersex. Zzyym has waged a legal fight for more than six years to get an accurate U.S. passport.

“I’ve been at this fight for so long,” Zzyym said. “I am optimistic that, with the incredible support and work of Lambda Legal and the Intersex Campaign for Equality, I will soon receive an accurate passport. One that reflects who I truly am; and that will allow for me to present in person at the several international conferences to which I’ve been invited to present on issues confronting intersex people.”

Today’s news comes more than one year 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 gender marker in the passport application “injects inaccuracy into the data.” From the ruling, writing memorably:

“A chef might label a jar of salt a jar of sugar, but the label does not make the salt any sweeter. Nor does requiring intersex people to mark “male” or “female” on an application make the passport any more accurate.”

“The update to the State Department’s policy has been a long time coming and is prompted in large part by three separate court rulings in Dana’s favor,” Lambda Legal Counsel Paul D. Castillo said. “Dana showed incredible courage and perseverance throughout, and it is rewarding now to see the light at the end of the tunnel. With today’s announcement, countless intersex, nonbinary, and other gender-diverse United States’ passport applicants will at last get the accurate passports they need. As important, self-certification of their identity removes unnecessary barriers and makes accurate IDs accessible to more people, reducing discrimination, harassment, and violence aimed at transgender people.”

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 passport. Before today, passport applicants were forced to select a gender marker of either ‘male’ or ‘female’ or otherwise forgo the essential travel document.  It also required 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 confirmed 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 federal Administrative Procedure Act, among other claims, by denying Dana a passport that accurately reflected their gender. The Court issued its rulings in favor of Zzyym on November 22, 2016, and, after a second hearing, again on September 19, 2018. The State Department then appealed to the Tenth Circuit. During the course of the litigation, Dana secured a Colorado Driver’s License bearing an “X” after Colorado Division of Motor Vehicles updated its policy in 2018.

With the policy change, the United States joins at least ten other countries that 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.

In the United States, 21 states and the District of Columbia allow residents to obtain state driver’s licenses and state-issued ID cards with neutral gender markers. New York became the 21^st state this month following the enactment of the Gender Recognition Act and Lambda Legal’s litigation and advocacy on behalf of Sander Saba, a nonbinary New York who sought a driver’s license with an X marker. New York’s new policy will be implemented by May 2022.You can read about our advocacy on behalf of Sander Saba here: https://www.lambdalegal.org/in-court/cases/saba-v-cuomo

See U.S. Secretary of State Antony Blinken’s announcement here: Proposing Changes to the Department’s Policies on Gender on U.S. Passports and Consular Reports of Birth Abroad - United States Department of State

See details of the new gender marker here: https://travel.state.gov/content/travel/en/passports/need-passport/selecting-your-gender-marker.html

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

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 Drinker (formerly Faegre Baker Daniels LLP).