An intersex person cannot be denied a U.S. passport for refusing to select “male” or “female” on their application, a Colorado judge ruled this week.
Sixty-year-old Dana Zzyym applied for a passport in 2014 to attend a conference in Mexico City on behalf of the Intersex Campaign for Equality, where Zzyym serves as associate director. Zzyym, who identifies as neither male nor female, did not select a gender in their paperwork.
The application was denied, despite submitting a birth certificate listing their sex as “unknown” and a doctor’s note verifying their intersex status.
That refusal triggered a four-year fight for a passport which reflected Zzyym’s nonbinary identity, one which culminated in a legal victory advocates described as a “groundbreaking, first-of-its-kind” decision.
In a Wednesday ruling, U.S. District Judge R. Brooke Jackson found that the State Department violated its authority under the Passport Act of 1928 by effectively forcing Zzyym to choose a “male” or “female” identity. Jackson said that “adherence to a series of internal policies that do not contemplate the existence of intersex people” is not a valid reason to refuse an individual’s application.
“The authority to issue passports and prescribe rules for the issuance of passports under [the Passport Act] does not include the authority to deny an applicant on grounds pertinent to basic identity,” the Colorado judge wrote.
Wednesday’s ruling is not the first time a U.S. court has ruled in Zzyym’s favor, however.
The U.S. District Court for the District of Colorado previously sided with Zzyym back in 2016. At the time, Jackson ruled there was “no evidence that the Department followed a rational decision-making process in deciding to implement its binary-only gender passport policy.”
Although the Obama appointee ordered the State Department to review its policies, it subsequently refused Zzyym’s application for a second time.
Lambda Legal, which argued in court the government’s guidelines violated the 5th Amendment, called upon the State Department to finally comply with the federal court ruling by issuing Zzyym their hard-won passport.
“In light of this ruling, we call on the State Department to promptly issue Dana this essential document that accurately reflects their gender,” claimed Senior Attorney Paul D. Castillo in a statement, adding: “It is well past time for Dana Zzyym and other non-binary citizens of this country to be recognized and respected for who they are, to live openly and authentically, and to be able simply to travel freely about the world.”
Although the State Department claimed in a statement it would be meeting with the Department of Justice to determine compliance with the ruling, the government could elect to further defend the policy. That would entail appealing the decision to the Tenth Circuit Court of Appeals.
If federal authorities decline to appeal, advocates say they must revise the passport application guidelines to include the option of a third gender marker.
At least 10 countries already allow passport applicants to list a nonbinary “X” or “O” on their travel documents — gender-affirming alternatives which have been recommended by the United Nations. These nations include Australia, Bangladesh, Canada, Denmark, Germany, India, Malta, Nepal, New Zealand, and Pakistan.
In the U.S., states like California, Maine, Oregon, and Washington have begun rolling out gender-neutral options on state IDs, driver’s licenses, and birth certificates.
For Zzyym, these legal advances have been a long time coming. They were raised as a boy and subjected to a series of unnecessary genital surgeries in order to fit them into their assigned sex. These operations are not only painful and traumatizing. In most cases, they are irreversible.
It was only after Zzyym left the U.S. Navy — where they served as male — that they learned there were other intersex people who had been subjected to the same horrific medical procedures.
The Colorado resident claimed the denial of their passport has served to reinforce the struggles intersex individuals have faced for decades.
“Every day I am forced to suffer the consequences of decisions made for me as a child,” they said in a statement. “I shouldn’t have to suffer at the hands of my government — a government I proudly and willingly served — as well. It’s a painful hypocrisy that, simply because I refused to lie about my gender on a government document, the government would ignore who I am.”
It’s time for the State Department to finally “do the right thing,” Zzyym added.
“I’m not going to lie on my passport application,” they continued, emphasizing that this was merely the latest court ruling supporting their right to self-identification. “I shouldn’t have to, and the judge here, twice, has agreed with me.”
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