The Government Can’t Deny an Intersex Person a Passport

A US Federal judge has ruled that the government overstepped its authority when it denied a former Navy vet a passport based on their decision not to choose a male/female gender marker on their passport application.

Dana Zzyym is an intersex and non-binary resident of Colorado. Zzyym now works as associate director for Intersex Campaign for Equality, traveling to deliver speeches and educational seminars on intersex identity and  campaigning against things like forced gender assignment, something that Zzyym was subjected to when they were an infant.

However, because Zzyym has not been able to obtain a passport, due to the State Department’s insistence that Zzyym choose a male or female gender marker and their rule that Zzyym must have been specifically characterized as male or female on their birth certificate and other documents, Zzyym has been unable to travel to important engagements outside of the country and therefore lost work.

As a result, Zzyym sued on the grounds that this was both in breech of federal administrative laws and of Zzyym’s constitutional rights.

U.S. District Judge R. Brooke Jackson agreed, saying  in a ruling handed down last week that “the Department failed to show that its decision-making process regarding the policy was rationale” and that “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[.]”

Judge Brooke has therefore blocked the Department “from relying upon its binary-only gender marker policy to withhold the requested passport” from Dana Zzyym.

Critically, this ruling rejects the State Department’s rationale that accepting Zzyym’s application without a gender marker or gender designation would complicate the process of verifying an applicant’s identity. Judge Brooke said that the agency is entitled and empowered to reject passport applications for a variety of reasons, but that it could not rely on the fact that the Department simply doesn’t have the right box for an intersex person to tick, which is what Brooke believes the State Department’s arguments really add up to.

This is, in fact, the second time that Zzyym has won against the State Department.

A ruling by the same Judge in 2016 found in Zzyym’s favor and said that the State Department was in breech of the Administrative Procedure Act, when it sought to compel Zzyym to effectively lie on their passport. The order required the State Department to reconsider its gender binary requirements and issue a passport without delay. However, the Department chose not to do so, so once again Zzyym was forced to take court action to try to secure an accurate passport.

“It’s been nearly four years since the State Department first denied me a critical identity document that I need to do my job and advocate for the rights of intersex people both in the United States and abroad,” said Zzyym in a statement. “The agency’s refusal to issue me a passport has already cost me opportunities in Mexico City and Amsterdam. I’m not going to lie on my passport application, I shouldn’t have to, and the judge here, twice, has agreed with me.”

Judge Brooke has not directly ordered the State Department to provide Zzyym with a passport. Rather, he has ruled that the Department’s stated reasons for denying Zzyym a passport are invalid. The State Department is said to be considering its options and liaising with the Department of Justice on its next steps.

Technically, this ruling is limited, in that it applies to Zzyym’s situation specifically. However, the broader findings in the ruling, for example that the State Department cannot deny a passport based on “grounds pertinent to basic identity” will help to support a case for a third gender option on passport applications.

Such gender markers can be meaningful for many reasons. Some people may be transitioning via gender affirmation care and therefore may prefer a third gender option, either as a temporary ID marker or something more aligned with their sense of gender. Others may simply feel that, while they are comfortable aligning with their birth-designated sex, their gender presentation does not match that expectation, making a third gender marker more accurate.

And that is what this is really all about: LGBTQIA and gender variant and nonbinary people are not in fact asking for special status. Rather, non-binary individuals want to provide the most accurate information they can to cut down on the red-tape of traveling. By blocking that, the State Department is not making travel safer for passengers. If anything, it is making it more unsafe for those who do not fit the gender binary.

This has to stop, and Zzyym’s success in the courts is a welcome reminder that not only is this kind of binary thinking unhelpful, it’s completely outdated.

Related at Care2

Photo credit: Thinkstock.

30 comments

Dr. Jan Hill
Dr. Jan Hill2 months ago

thanks

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Elizabeth M
Past Member 2 months ago

many thanks

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silja s
silja salonen2 months ago

good !!

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pam w
pam w2 months ago

Damned religious "RIGHTEOUS" power-grabbers!

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Kay B
Kay B2 months ago

Doctors can do heart transplants but they can't figure out if this person is male or female?

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Loredana V
Loredana V2 months ago

Of course they can't!

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Alea C
Alea C2 months ago

Tyfs.

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Janis K
Janis K2 months ago

Thanks for sharing.

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Belinda Lang
Belinda Lang2 months ago

Intersex is neither male nor female, so there should be a box for intersex on the passport.

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Wesley S
Wesley Struebing2 months ago

Indeed. They are not asking for special status - they are asking for EQUAL status. (and I'll wager that this might make to SCOTUS, and then, with Kavanaugh installed, these pesky LGBTQIA rulings can be struck down, and Old, white male mores can be re-instated. Cynical of me, I know...)

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