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Court Orders State Dept. to Reconsider Passport for Intersex Vet

Dana Zzyym with Lambda Legal lawyers
Dana Zzyym at center with Lambda Legal lawyers

Dana Zzyym wants a passport with an X gender marker, which the State Department has refused to issue during a five-year court battle.

A federal appeals court has ordered the U.S. State Department to reconsider its decision denying an accurate passport to an intersex American.

The case, which has been going on for several years, involves Dana Zzyym, an intersex Navy vet who is gender-nonbinary. Zzyym had applied for a passport in 2014 but refused to select a male or female gender and requested a X marker instead, but the State Department would not issue it. Represented by Lambda Legal, Zzyym filed suit in 2015, saying the denial violated federal law and the U.S. Constitution's guarantee of equal protection.

In 2016, a federal judge in Colorado, R. Brooke Jackson, ordered the State Department to reconsider Zzyym's application. When the department again refused to issue the passport, the case was reopened; Jackson ruled in 2018 that the refusal violated the U.S. Administrative Procedure Act and that Zzyym must receive a passport with an appropriate gender marker. The State Department appealed to the U.S. Court of Appeals for the Tenth Circuit, leading to the latest ruling.

In that ruling, which came out Tuesday, the Tenth Circuit did not uphold Jackson's ruling outright but rejected three of the five reasons the department gave for denying the passport and ordered it to reconsider Zzyym's application anew. Zzyym is associate director for the Intersex Campaign for Equality and in that position has been invited to attend several international intersex conferences. However, they have been unable to attend because they do not have a valid passport.

The ruling noted that forcing nonbinary intersex people to choose a male or female gender on a passport "injects inaccuracy into the data." "A chef might label a jar of salt a jar of sugar, but the label does not make the salt any sweeter," Judge Robert E. Bacharach wrote for a three-judge panel of the Tenth Circuit. "Nor does requiring intersex people to mark 'male' or 'female' on an application make the passport any more accurate."

"While we may have wanted a more definitive ruling from the Tenth Circuit, the court recognized that treating every applicant as male or female is inconsistent with its own goal to issue an accurate identity document," Lambda Legal attorney Paul D. Castillo said in a press release. "The court wants the State Department -- for the third time -- to reconsider Dana's passport application, so we continue our battle."

"In the intervening five years since we first filed, we've won two district court rulings, more than a dozen U.S. states and the District of Columbia now offer accurate identity documents for their residents and U.S. Rep. Ro Khanna introduced a bill requiring the State Department to offer an X gender marker for passports applicants," Castillo added. "This is the third time a court has rejected key assertions in the State Department's case. It's also well past time that the State Department issues Dana Zzyym a passport that accurately reflects who they are."

"While anything short of a clear directive to the State Department is disappointing, it's encouraging that the Tenth Circuit acknowledged that offering only two gender options on identifying documents is inherently inaccurate," said a statement issued by Khanna, a California Democrat. "While Dana Zzyym continues fighting for this change in court, we're fighting alongside in Congress with the Gender Inclusive Passport Act. This bill, with more than 25 cosponsors, will allow Dana Zzyym and so many other Americans the freedom to express their true gender on identifying documents."

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