Metro Weekly

California congressman introduces bill to add third gender marker for U.S. passports

Bill allows nonbinary and intersex people to obtain accurate passports without surgery or a doctor's note

Ro Khanna – Photo: Facebook.

A California congressman has introduced legislation instructing the U.S. Department of State to add a third “X” gender marker, for “unspecified,” onto U.S. passports for people who identify as nonbinary or intersex.

Under the bill, introduced by Rep. Ro Khanna (D), a third gender marker would be offered “without restriction” as an option for people whose genders are neither male nor female on U.S. passports, passport cards, or Consular Reports of Birth Abroad. 

“Respecting every American’s gender must extend to travel abroad,” Khanna said in a statement. “The freedom to move and express yourself no matter what should be guaranteed in this country…. Everyone in this country should have the freedom to express their preferred gender on passports.”

Currently, 10 countries issue passports with a third gender-neutral option, including U.S. allies like Canada, Germany, Australia, and New Zealand.

Additionally, the International Civil Aviation Organization, the United Nations agency that determines international travel document standards, recognizes “X” or “unspecified” as a valid gender marker.

In order to amend their passport and other documents, nonbinary or intersex individuals will not be required to provide proof of surgery or an affidavit from a physician. Instead, they will be allowed to attest themselves that they identify outside of the gender binary.

Khanna’s bill also doesn’t require a person to provide a state identification card to prove their gender identity, meaning that any individual could request to update their gender marker, even if they live outside of the handful of states that offer nonbinary gender markers on vital documents.

Khanna’s bill drew praise from U.S. Rep. Mike Quigley, the vice-chair of the Congressional LGBT Equality Caucus and a founding member of the Transgender Equality Task Force.

“I am proud to support this policy solution that will for the first time, give transgender Americans the opportunity to present as their authentic selves on U.S. passports,” Quigley said in a statement. “Without a doubt, we have further to go to achieve full equality for LGBT individuals, but each act of openness and acceptance is an important step towards true equality for everyone.”

Related: Intersex Naval veteran asks appeals court to uphold ruling allowing them to get a gender-neutral passport

Transgender and intersex advocates praised the measure as a welcome development.

“The State Department could and should already be providing this option to U.S. citizens who are not male or female, as many states and other nations do,” Mara Keisling, the executive director of the National Center for Transgender Equality, said in a statement. “That includes some members of our transgender and intersex communities who currently can’t get a passport without lying about who they are. If the government is going to be in the business of declaring and labeling our gender, it should at least reflect today’s science and allow everyone to answer truthfully.”

Dana Zzyym – Photo: Lambda Legal

“Intersex and nonbinary people exist, as numerous cultures have always acknowledged and twenty-three U.S. states do today,” Hida Viloria, the founding director of the Intersex Campaign for Equality, said in a statement. “Yet we’re targets of discrimination — such as being subjected, as infants, to irreversible, medically unnecessary surgeries that aim to make intersex people male or female — because our society only recognizes male or female citizens.

“Many intersex and non-binary people want to accurately identify ourselves on federal documents, like the vast majority of people who can easily check male or female do, and allowing us to do so simply upholds our nation’s goal of equality for all citizens.”

The issue of including a third gender marker on U.S. passports has been an issue of debate among the political class for the past few years, stemming from a lawsuit brought by Dana Zzyym, an intersex and nonbinary U.S. Naval veteran who has been trying to obtain a passport with an accurate gender marker from the State Department since 2016.

Zzyym, who worked as an associated director of the Intersex Campaign for Equality and is sometimes expected to travel abroad for work, has argued that they have been unable to perform their duties because of the inability to obtain an accurate passport that would allow them to travel internationally. 

Although a federal court has repeatedly sided with Zzyym, the State Department outright refuses to issue them a passport with a nonbinary gender marker. The case is currently being considered by three judges on the 10th U.S. Circuit Court of Appeals, who heard oral arguments in January.

“This adjustment to the U.S. passport application process is long overdue,” said Paul Castillo, counsel at Lambda Legal, which is representing Zzyym. “Congressman Khanna’s bill will free Dana and other intersex, nonbinary, and other gender diverse Americans from the virtual nationwide house arrest into which the State Department has placed them.”

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