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Intersex and Non-Binary in America: A Q&A With Dana Zzyym

With the government attempting to redefine sex as “either male or female” and “determined by the genitals that a person is born with,” as a New York Times report made clear, questions have arisen as to what would happen not only to the transgender community but also to intersex people.

Intersex is the “I” that barely makes it into the LGBTQI+ acronym that represents the full and diverse spectrum of the queer community.

INTO spoke with Dana Zzyym, a U.S. Navy veteran, Colorado resident and plaintiff in the federal lawsuit filed in 2015 by Lambda Legal against the U.S. State Department for denying Dana – who uses the gender-neutral pronouns they, them and their – a passport that accurately reflects their gender. In other words, the government is already doing to intersex people what it is planning to do to transgender people – denying their existence.

According to the United Nations Office of the High Commissioner for Human Rights, “intersex people are born with sex characteristics…that do not fit typical binary notions of male or female bodies.” Even though some intersex people identify as male or female, Dana does not. Dana Zzyym identifies as herm/intersex as well as non-binary. As a result, Dana could not accurately choose either male or female on the passport application form, and the State Department is refusing to provide any other gender marker designation. This even though the International Civil Aviation Organization, the United Nations agency that sets standards for travel documents, has approved “x” as an appropriate third marker for those who do not identify as either male or female.

In a groundbreaking decision issued in September, a U.S. District Court judge ruled that the U.S. State Department exceeded its authority when it denied Dana a passport. Now, the U.S.State Department appealed that decision and also requested permission last week to hold off on issuing an accurate passport to Dana.

Dana’s case could represent a breakthrough in America for intersex and non-binary rights with potential implications for gender non-conforming and gender fluid people as well.

Why did you decide to sue the government to get a passport?

Dana Zzyym: Thinking back I didn’t know how long it was going to take, but I wanted to do it either way. Basically, you get tired of being mislabeled all time and there is no intersex marker on forms. I wanted to be me. When you go to the doctor or anywhere, you have to tell them I’m not a man nor a woman and retell the story all the time. You get tired of explaining who you are again and again. I am an intersex person and the background issue with my passport was that I wanted to identify as who I was, not lie, and have a legal identification for me and other intersex people that validates our identities. It is time we start getting civil rights for intersex people and we stop genital mutilation of children.

How do you feel about this case and the fact that the State Department is denying you a document that would validate your identity?

The federal government and most state governments have a long history of denying people their rights and their identities whether you are Native Americans, an immigrant, or person of color. I was not surprised that I was treated harshly by the State Department. As intersex people, we are invisible, particularly in the United States. It is like we don’t exist. As hard as this is, I am fighting to be recognized for who I am.  For me, our existence proves the wide variety of identities not only in the LGBTQ community but among all of us because if you look at our biology, it’s there, we are born not male or female. Yet, some people don’t want to see it. For intersex people, you can see the biological component, and there are so many different varieties of intersex existence. And that highlights the diversity and fluidity of the queer community. We are part of the whole. If you don’t accept us, you don’t accept anybody because we are all connected.

Where is the case now?

I am waiting for the State Department to grant me a passport or appeal the case. They have 60 days to act after the court decision, which was handed down on September 19. If they appeal, we would go to the appellate court, which is in 10th Circuit Court of Appeals in Denver. That means we are back in court fighting for my passport, this time before three judges who will make a decision.

Why is it so important for you to have correct documentation? What difference can you make if you get a passport with an “X” gender marker?

Sex/Gender markers will make a difference because it would mean that the government recognizes the existence of intersex people and non-binary people like me. We would get a passport as who we are, without having to lie. This is already happening in many states across the country, including California, Oregon, Washington, New Jersey, and Washington D.C. New York City now allows an X for birth certificates. We have achieved so much as a community since I started this case. A lot of people are happy to be able to identify as who they are. I am very happy and proud that I have contributed something positive to make this country better.

You identify as intersex and non-binary, how do these two identities relate? What is non-binary? 

The binary system is the traditional male and female stereotype. The whole world, mostly Western societies, is set up for boys and girls, men and women, you see it all over in salons, clothing stores, etc. Non-binary is anybody who sees themselves as being outside of that system, as not fitting within a rigid male-or-female only system. Intersex people, by definition, are born out of the binary system but because society tells us we must fit in one box or the other, it’s very hard to break out of that system. From when we are born, we are told we are a boy or a girl. It’s very hard for us to break out of that and say we are not, especially when at the same time we are being given hormones or medications in order to fit in the binary gender system. Many of us are forced to change our bodies to match that binary system. It’s wrong and very harmful. I call that brainwashing since it is forced upon you from a very early age. Then when you grow up you start thinking something is wrong here, this male or female identity is not how I feel.

What do you think about the recent reports of a proposal the Trump administration is considering to define sex for purposes of federal statutes as the gender you were born with as determined by a doctor? How would that affect intersex people whose anatomies are often different and do not fit into one category of male or female?

A lot of intersex people are afraid of this policy proposal. I think they are trying to say they are going to look at genetic testing to define who is a boy or a girl, when someone like me, born with ambiguous genitalia, can’t be subjectively categorized by a doctor just by looking at genitalia. I don’t know how that would go for intersex people because we have different chromosomes and genes, we can have hundreds and thousands of variations, and we have hormonal differences that change things. Doctors since the ‘50s have been attempting to determine an intersex baby’s sex by genetic testing and then doing unnecessary and harmful surgeries based on those tests to make us look like a boy or a girl. I hope the laws that are there stop this or that a new Congress will limit what they can do with this. I think this is an attack on the entire LGBT community.

One of the issues for the intersex community is medical interventions for children that include clitoral reductions, vaginoplasties, and phalloplasties, often doing irrevocable harm to their bodies. A recent policy guide by the Intersex organization interACT and Lambda Legal advise the medical community to delay those non-consensual surgeries. What do you think about this issue?

Nobody should undergo a surgery without the full consent of the person. They should have full knowledge. Surgeries are often medically unnecessary and have harmful, long-term consequences. For intersex children, they don’t know how they might be affected so they should not do it to them. The result in a lot of cases is they become sterilized, lose the sensation of their sex organs, and their mental health deteriorates.  Many of us who have had forced surgeries have to seek mental health therapy and deal with many other lifelong impacts. Children can’t give consent because they don’t know. Doctors must avoid these purely cosmetic surgeries to intersex children because you cannot undo that change.

What’s your vision for the intersex community? 

My vision for the intersex community is full rights in the U.S. and full integration as full citizens and full acceptance, but I also have that vision for everybody.  No matter who you are, I would love to see everyone with full citizenship and getting along and not seeing discrimination. With Trump spewing hatred, I don’t see it happening in my lifetime and it is unfortunate. I thought we were going in the right direction before Trump took office. I would like to see everybody with full equal rights and freedom – and white privilege gone for the world. True equality in the U.S. and the world, without worrying: I’m not sure if it’s just a utopian vision but I wish for us to move closer to that utopia.


Samy Nemir

Samy Nemir is a writer, activist, filmmaker, and artist focused on gender, race and LGBTQ issues. He is Public Information Officer at Lambda Legal and also co-founder of advocacy group Queeramisú. Yu can find him on Twitter and Instagram.

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