Metro Weekly

Judge: State Department’s rejection of intersex passport violates federal law

Lawyers for Dana Zzyym argue the United States should adopt a third gender marker on official documents

Dana Zzyym - Photo: Lambda Legal.

Dana Zzyym – Photo: Lambda Legal.

A federal judge has ruled that the U.S. State Department violated federal law when it denied Dana Zzyym, an intersex Navy veteran, a passport after they applied for one to travel to an international conference in Mexico.

Zzyym was born intersex, but shortly after their birth, their parents and doctor made the determination to raise them as a boy. Zzyym underwent several irreversible, painful and medically unnecessary surgeries that didn’t work, leaving them with severe scarring.

When Zzyym applied for a passport, they didn’t feel comfortable lying by choosing either “male” or “female” on the form. The State Department also requires a birth certificate to help verify the applicant’s identity. In Zzyym’s case, the birth certificate lists their gender as “unknown.” But even though the birth certificate and information from the U.S. Department of Veterans Affairs confirms Zzyym’s intersex status, the State Department rejected the request for a passport.

Enlisting the help of Lambda Legal, Zzyym sued the State Department, arguing that its rejection of her application violates the Due Process and Equal Protection clauses of the U.S. Constitution, as well as the federal Administrative Procedure Act. Several other countries, including Australia, India, Malta, Nepal and New Zealand, already offer a third gender marker, “X” for those who identify outside of the gender binary.

In his ruling, U.S. District Judge R. Brooke Jackson stated that he found “no evidence that the Department followed a rational decision-making process in deciding to implement its binary-only gender passport policy.”

“This is an important victory for Dana Zzyym and other intersex and non-binary citizens, who simply want to be recognized and respected for who they are, to live openly and authentically, and to have their government recognize them for who they are,” Paul Castillo, a senior attorney with Lambda Legal, said in a statement. “In light of this ruling, we call on the State Department to do the right thing and issue accurate passports that reflect who Dana and all non-binary citizens truly are. Why should Dana — or any non-binary person — be forced to lie about their gender on a passport application when there are other proven solutions already implemented by countries elsewhere?”

Zzyym also released a statement hailing Jackson’s decision but acknowledging it is a “first step in a long battle.”

“Every day, I am forced to suffer the consequences of decisions made for me as a child,” Zzyym said. “I shouldn’t have to suffer at the hands of my government — a government I proudly and willingly served — as well.  It’s a painful hypocrisy that, simply because I refused to lie about my gender on a government document, the government would ignore who I am. I hope the State Department will do the right thing now.”

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John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com

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