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The 10th U.S. Circuit Court of Appeals has ordered the U.S. State Department to reconsider an intersex Naval veteran’s application for a passport reflecting their gender identity, even as it overturned a lower court decision finding that the decision to reject the application violated federal law.
In its ruling, the 10th Circuit found that the State Department had acted within its authority, but had “exercised this authority in an arbitrary and capricious manner” by denying Zzyym’s passport application.
The court rejected three of five stated reasons provided by the State Department regarding its decision, but also said that the lower court should have ordered the State Department to reconsider that decision based only upon the two remaining reasons.
However, the court also noted that forcing nonbinary interesex individuals like Dana Zzyym to pick either a male or female gender marker in the passport application “injects inaccuracy into the data.”
“A chef might label a jar of salt a jar of sugar, but the label does not make the salt any sweeter,” Judge Robert Bacharach wrote on behalf of the court. “Nor does requiring intersex people to mark ‘male’ or ‘female’ on an application make the passport any more accurate.”
“While we may have wanted a more definitive ruling from the Tenth Circuit, the court recognized that treating every applicant as male or female is inconsistent with its own goal to issue an accurate identity document,” Paul Castillo, counsel for Lambda Legal, which is representing Zzyym, said in a statement. “The court wants the State Department — for the third time — to reconsider Dana’s passport application, so we continue our battle.
“In the intervening five years since we first filed, we’ve won two district court rulings, more than a dozen U.S. states and the District of Columbia now offer accurate identity documents for their residents and U.S. Rep. Ro Khanna introduced a bill requiring the State Department to offer an X gender marker for passports applicants,” Castillo added. “This is the third time a court has rejected key assertions in the State Department’s case. It’s also well past time that the State Department issues Dana Zzyym a passport that accurately reflects who they are.”
Zzyym, who currently serves as associate director for the Intersex Campaign for Equality, has been unable to carry out some of their duties related to the job because of an inability to obtain a passport without selecting a gender-specific marker, an action which would force Zzyym to commit perjury by providing information they know not to be true. Additionally, the State Department has contradicted its own request for original documents, such as a birth certificate to prove citizenship, because Zzyym’s birth certificate says their sex is “unknown.”
The process to fight for accurate identity documents, as well as the State Department’s rigidity in refusing to issue the passport, despite acknowledging the existence of intersex individuals, has been frustrating for Zzyym.
“I started the process to get an accurate passport more than five years ago,” they said in a statement. “In those five years, I’ve been invited to present at several international conferences on issues confronting intersex individuals. I’ve been unable to attend because I don’t have an accurate passport. While this ruling is disappointing, I’m not deterred. I knew this would be a long battle, and I’m ready to continue the fight.”
At least 10 other countries, including Canada, currently issue passports with a third “X” gender option, which is recognized as legitimate by the International Civil Aviation Organization, a United Nations agency that sets international travel document standards.
U.S. Rep. Ro Khanna, the author of a bill to create a third nonbinary option on U.S. passports, echoed sentiments similar to those voiced by Zzyym’s lawyers.
“While anything short of a clear directive to the State Department is disappointing, it’s encouraging that the Tenth Circuit acknowledged that offering only two gender options on identifying documents is inherently inaccurate,” Khanna said in a statement. “While Dana Zzyym continues fighting for this change in court, we’re fighting alongside in Congress with the Gender Inclusive Passport Act. This bill, with more than 25 cosponsors will allow Dana Zzyym and so many other Americans the freedom to express their true gender on identifying documents.”
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