Metro Weekly

Intersex citizen asks federal court to grant them passport with correct gender marker

Lawyers for Dana Zzyym maintain State Department's denial of passport violates their client's Fifth Amendment rights

Dana Zzyym – Photo: Lambda Legal

An intersex person from Colorado is asking a federal court to order the U.S. State Department to issue them a passport that correctly reflects their gender identity.

Dana Zzyym, a Navy veteran who uses “they/theirs/them” as their personal pronouns, has previously asked the State Department to mark “X” instead of “male” or “female” on their passport. But the State Department has thus far refused to provide a non-binary or third gender option on its passport application form.

Eighteen months ago, the same court ruled in Zzyym’s favor, ordering the State Department to reconsider its previous denial of Dana’s passport application, complete with their proper gender marker. But it did not decide on a specific course of action.

“The continued delay by the State Department is unconscionable and in effect places Dana under nationwide house arrest,” Paul Castillo, a staff attorney for Lambda Legal, which is representing Zzyym, said in a statement prior to a Tuesday hearing in Colorado district court.

“It has been more than three years since Dana applied for a U.S. Passport, and 18 months since this court ruled against the State Department, and still Dana is denied an accurate essential identity document,” Castillo added. “Dana deserves better from the country they served for six years.”

Castillo also noted that several countries currently issue passports with a non-binary gender option, including Australia, Bangladesh, Canada, Denmark, Germany, India, Malta, Nepal, New Zealand and Pakistan.

“Last year, Oregon officials unanimously voted to allow state residents to select ‘X’ as a gender marker for their drivers’ licenses and state IDs, and the District of Columbia, California and Washington soon followed suit. If they can do it, why can’t the U.S. State Department?” questioned Castillo.

Lambda Legal has argued that denying Zzyym a correct passport violates their right to due process and equal protection under the Fifth Amendment to the U.S. Constitution by preventing Zzyym from traveling freely, and compelling them to lie about who they are on the passport application form. The lawsuit also maintains the department’s actions violate the federal Administrative Procedure Act.

“The State Department’s denials are preventing me from doing my job and advocating for the rights of intersex people around the world,” said Zzyym, who serves as the associate director of the Intersex Campaign for Equality. “I’m not going to lie on my passport application, and I shouldn’t have to.”

Zzyym was born with ambiguous sex characteristics and forced to undergo several irreversible, painful, and medically unnecessary surgeries that didn’t work and left them with severe scarring after their parents decided to raise them as a boy.

After serving six years in the U.S. Navy and attending Colorado State University, Zzyym began researching surgeries and came to understand they had been born intersex. Drawing on personal experience, they began educating the public about issues facing intersex people, and eventually obtained their current position with the Intersex Campaign for Equality.

As part of their work, Zzyym was invited to attend the International Intersex Forum in Mexico City in October 2014, at which time they applied for a U.S. passport. As part of the passport application, first-time applicants must submit evidence of citizenship, such as a birth certificate. Zzyym’s birth certificate lists their sex as “unknown.”

Yet despite that evidence, and the fact that Zzyym’s doctors with the U.S. Department of Veterans Affairs confirmed their gender as intersex, the State Department denied Zzyym’s application, maintaining that Zzyym had to choose either male or female as their gender. Zzyym subsequently enlisted the help of Lambda Legal and sued the State Department, alleging the department had violated their constitutional rights.

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