Metro Weekly

State Department must issue intersex passport after federal court denies stay

Most recent ruling marks third victory in three years for U.S. Navy veteran Dana Zzyym

Dana Zzyym – Photo: Lambda Legal

A federal judge has told the U.S. State Department to issue a passport reflecting the gender identity of an intersex human rights activist, denying the department’s request to stay a previous ruling.

On Friday, U.S. District Court Judge R. Brooke Jackson found that Dana Zzyym, a U.S. Navy veteran who identifies as both intersex and nonbinary, was discriminated against due to the State Department’s gender marker policy, which only issues passports with “male” or “female” gender markers.

As part of their job, Zzyym, who serves as the associate director for the Intersex Campaign for Equality, was invited to attend the International Intersex Forum in Mexico City in October 2014, at which point Zzyym applied for a passport. But when it came time to fill in their gender, Zzyym refused to mark either “male” or “female” on the application.

Even though Zzyym had provided their birth certificate, a doctor’s note confirming their gender as intersex, and military records as further proof of identity, the State Department rejected the entire application. Zzyym then enlisted the help of Lambda Legal and filed a lawsuit alleging that the agency’s binary-only policy on gender markers is discriminatory.

Zzyym, who has since obtained a Colorado driver’s license with a nonbinary “X” gender marker, has long maintained that offering a third gender option on passports would not greatly inconvenience the State Department, nor would it be prohibitively expensive to implement such a policy, which has been adopted by at least 10 other countries, including Australia, Canada, Nepal, and even Pakistan.

Jackson agreed with Zzyym’s contention, writing in his opinion: “If the Department concludes that issuing a single passport to Dana even with appropriate notice will undermine the system of international travel as we know it … it can comply with the judgment by updating its software systems. While this may be a difficult choice for the Department, it is not an impossible choice … Dana has missed travel opportunities for four years throughout the course of this litigation, and Dana would continue to miss travel opportunities if a stay is granted.”

Friday’s ruling represents the third victory for Zzyym in the past three years. In November 2016, Jackson found that the State Department had violated the federal Administrative Procedure Act, and ordered the agency to reconsider its binary-only gender marker policy. The State Department then doubled-down on its refusal to issue Zzyym an accurate passport, with Jackson again ruling in September 2018 that it had discriminated against Zzyym and should move forward with issuing a passport with a nonbinary gender marker.

The State Department then asked for Jackson to stay his own ruling so that the agency wouldn’t be forced to comply while they attempt to appeal his findings to the 10th U.S. Circuit Court of Appeals.

Paul Castillo of Lambda Legal, one of Zzyym’s attorneys, celebrated Jackson’s most recent ruling.

“Today, a federal judge has found that there is no defensible reason to delay the issuance of Dana’s passport until after the appeal,” Castillo said in a statement. “The court rejected the State Department’s arguments as to security, complexity and cost related to producing an accurate passport for Dana, and instead determined that the harm to Dana of lost travel opportunities outweighed whatever harms the State Department claimed. No law-abiding citizen should be precluded from leaving the country simply because of who they are.

“Several countries around the globe issue passports with gender markers other than male or female. Additionally, eight U.S. states and the District of Columbia now permit nonbinary gender options on identity documents, such as drivers’ licenses and birth certificates,” Castillo noted. “And recently, all the major U.S. air carriers announced they would soon follow suit, allowing passengers to select M, F, X and U when purchasing a ticket. If they can do it, why can’t the U.S. State Department?”

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