Metro Weekly

Federal court reopens case asking State Department to issue intersex passports

Dana Zzyym claims barring them from obtaining passport with correct gender identity violates 5th Amendment rights

Dana Zzyym – Photo: Lambda Legal.

A federal court in Denver has granted a motion to reopen the case of Dana Zzyym, the intersex citizen and U.S. Navy veteran who was denied a passport because the State Department does not recognize a gender marker that is neither male nor female.

Lambda Legal, representing Zzyym, asked the court to reopen the case after the State Department refused, once again, to issue Zzyym an accurate passport.

Last November, a federal judge ruled that the State Department’s refusal to issue Zzyym a passport with an “X” designation was arbitrary and capricious, and urged them to reconsider.

The State Department did not respond to Zzyym’s requests for a corrected passport for months, before finally issuing a second denial in May.

“Dana has been fighting for almost three years for an essential identity document that accurately reflects who they are,” Paul Castillo, counsel for Lambda Legal, said in a statement. “This isn’t that hard. Several countries issue passports with gender markers other than ‘F’ or ‘M.’ And just this past month, Oregon officials unanimously voted to allow state residents to select ‘X’ as a gender marker for their driver’s licenses and state IDs. And it looks like other states will soon follow suit. If Oregon can do it, why can’t the U.S. State Department?”

Castillo also noted that the State Department’s inaction continues to prevent Zzyym from traveling abroad, which affects their ability to do their job as associate director of the Intersex Campaign for Equality, which requires significant amounts of travel. It was Zzyym’s application for a passport in October 2014 to attend the International Intersex Forum in Mexico City that prompted their current lawsuit.

Adding to the complication is that Zzyym’s birth certificate, which is required as part of the application for a passport, lists their sex as “unknown,” meaning that, hypothetically, even if Zzyym had attempted to select ‘M’ or ‘F’ just to expedite the process, it would likely prevent them from obtaining a passport because it does the selected gender would not match the birth certificate.

Despite the fact that the U.S. Department of Veterans Affairs recognizes Zzyym’s intersex status, the State Department continues to deny their application, without providing a justification for the denial.

“My work as an advocate for the intersex community is incredibly important to me, and I’m unable to do my job because I don’t have a passport,” Zzyym said in a statement. “The State Department is in effect forcing me to lie about who I am, and I’m not going to do that. No one should be forced to lie about who they are.”

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

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