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On Wednesday, lawyers representing an intersex and nonbinary Naval veteran argued that the 10th U.S. Circuit Court of Appeals should uphold a lower court ruling finding that the U.S. State Department cannot deny them a passport with a neutral gender marker matching their true identity.
Dana Zzyym, the associated director for the Intersex Campaign for Equality, was invited to attend the International Intersex Forum in Mexico City in Oct. 2014 as part of their job.
But when applying for a passport, Zzyym refused to mark either “male” or “female” because they were born intersex and thus identify as neither gender.
Even though Zzyym’s birth certificate states that their sex is “unknown,” and Zzyym’s doctors, with the U.S. Department of Veterans Affairs, have recognized them as intersex, the State Department rejected Zzyym’s application and has consistently refused to issue a passport reflecting their true gender identity.
As a result, Zzyym enlisted the help of Lambda Legal and filed a lawsuit alleging that the agency’s binary-only policy on gender markers is discriminatory.
A federal judge repeatedly found in favor of Zzyym in three separate rulings, but the State Department continues to demand that passport applicants choose male or female as their gender.
Appearing before the 10th Circuit, Lambda Legal, which is representing Zzyym, argued that the State Department’s policy violates the federal Administrative Procedure Act and is discriminatory.
“We appeared before the Tenth Circuit today to urge the court not to permit the State Department to force a U.S. Navy veteran to lie on their passport application,” Paul Castillo, of Lambda Legal, said in a statement. “Dana Zzyym just wants an accurate passport, an essential identity document that accurately reflects who they are. Yet, the State Department seems to be urging Dana to lie in order to exercise their right to travel.”
Lambda Legal has also argued that it does not create an undue burden on the State Department to create passports with a third gender option accurately reflecting an intersex or nonbinary person’s gender identity.
To demonstrate this, Lambda Legal points to the fact that 10 other nations — Australia, Bangladesh, Canada, Denmark, Germany, India, Malta, Nepal, New Zealand and Pakistan — currently offer a third gender option, “X,” on official passports and other identity documents.
“It’s been about five years since I started the process to get an accurate passport,” Zzyym said in a statement. “In those five years, I’ve been invited to present at several international conferences on issues confronting intersex individuals. Ironically, it is precisely the discrimination intersex and nonbinary people face that prevents me from attending these conferences.
“Nearly a dozen countries allow their citizens to use gender markers other than M and F for their passports. And individuals traveling on those passports are able to enter the United States,” Zzyym added. “It makes no sense that the State Department continues to insist that I carry passport that doesn’t reflect who I am.”
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