A federal judge ruled Wednesday that State Department officials cannot deny a passport application to an intersex Colorado resident based solely on the refusal to select either female or male, reports the Associated Press.
Dana Zzyym, who has ambiguous physical sexual anatomy and identifies as gender-nonbinary, initially sued in 2015. Zzyym had requested X as an option instead of female or male, and the request had been denied.
Then in 2016, after a judge ordered the State Department to reconsider, Zzyym sued again, stating that to be forced to choose either male or female would be “untruthful.” The State Department again denied the application in 2017.
U.S. District Judge R. Brooke Jackson said in his Wednesday ruling that the department’s explanation for rejecting the application was unreasonable. Although the department is legally allowed to reject certain applications, in this case, Jackson stated that “adherence to a series of internal policies that do not contemplate the existence of intersex people is not good reason.”
Although this ruling applies only to Zzyym, it challenges the limited choice of gender options for federal identification. Lambda Legal senior attorney Paul Castillo called the decision “groundbreaking” and “first-of-its-kind.”
This decision comes after the recent attacks from the Trump administration to limit transgender Americans’ ability to travel, such as the deletion of the web page that guided them on how to update their gender on their U.S. passports (and its reappearance) and the State Department’s refusal to renew certain trans women’s passports, even though their documents identifying them as female had already been approved.
Janus Rose, a transgender technology researcher who had her passport revoked back in July, told Them, “I think there’s an internal policy change to make it as difficult as possible for trans people. The goal is to create friction. They can’t change all these laws right away, but they can make it really hard.”
Activists say they hope this decision leads to more gender choices on federal identification. The United Nations' International Civil Aviation organization, which sets standards for international travel documents, calls for options of male, female. and “X for unspecified.” Several countries allow X or O as options on federal gender identification.
In the U.S., a few states, such as California and Washington, already allow an X as an option for gender identification on driver’s licenses.