State Department Ordered to Reconsider Denial of Accurate Passport to Intersex Plaintiff

By Eric Lesh

The U.S. Court of Appeals for the Tenth Circuit has rejected several reasons given by the U.S. State Department for denying an accurate passport to Dana Zzyym, a non-binary and intersex U.S. Navy veteran, who does not identify either as male or female. ZZYYM v. Pompeo, 958 F.3d 1014 (May 12, 2020). In a ruling authored by Judge Robert Bacharach for a three-judge panel, the court partially overturned a district court ruling in Zzyym’s favor by U.S. District Judge R. Brooke Jackson.

Plaintiff Dana Zzymm, who uses the gender-neutral pronouns “they,” “them” and “their,” and who was born with ambiguous sex characteristics, declined the State Department’s offer to issue them a passport with F or M in the gender mark space, insisting that a gender-neutral X be used. At least ten countries issue passports with gender markers other than “F” (female) or “M” (male), including Australia, Canada, Germany, India, and New Zealand. To support the identification as intersex, Zzyym supplied a letter requesting an “X” sex designation, a letter from a physician stating that Zzyym is intersex, an amended birth certificate identifying the sex as “Unknown” and a Colorado driver’s license identifying the sex as female. (In November 2018, Dana obtained a driver’s license with a nonbinary “X” gender marker, after their home state of Colorado changed its policy in response to Dana’s federal lawsuit.)

The State Department resisted issuing a gender-neutral passport. Instead the Department offered Zzyym three options: they could obtain a passport identifying the sex as female; they could obtain a passport identifying the sex as male if a physician attested that Zzyym had transitioned to become a male; or they could withdraw the application. As described in the March 2019 edition of Law Notes, the State Department “asserted that it would be expensive and time-consuming to adjust their passport system software to accommodate Zzyym (and, presumably, other non-binary individuals who may request X passports in the future), and urges the court to stay its order pending appeal so that the Department will not have to undertake this onerous process and expense unless it is ordered to do so in a final and definitive appellate ruling.”

The U.S. District Court for the District of Colorado issued two rulings in favor of Zzyym on November 22, 2016, and September 19, 2018. The March edition of Law Notes describes the non-overturned district court ruling, where Judge Jackson had concluded that the “Department’s insistence upon passport applicants identifying as either male or female violated the Administrative Procedure Act, since no statutory provision requires this and the Department has never gone through the necessary procedure to adopt a formal regulation on point. Indeed, in light of the statutory language on passports, it is possible that even a properly-adopted regulation would be struck down on grounds of statutory interpretation and due process rights, since under the Supreme Court’s rulings on personal autonomy (such as Lawrence v. Texas), a person who identifies as non-binary probably has a constitutional right to government recognition of that status.” See ZZYYM v. Pompeo, 341 F.Supp.3d 1248 (D. Colo. 2018), for the district court’s ruling on the merits.

The 10th Circuit panel held that the State Department’s reliance on its binary sex policy was arbitrary and capricious, and in so doing the court rejected three of the five reasons the Department gave for denying an accurate passport.

First, the court held that the Department’s first reason (that the binary sex policy ensured the accuracy and reliability of U.S. passports) lacked support in the record. The Department argued that they determine eligibility for passports based on “an applicant’s identity through identification documents issued by other U.S. jurisdictions.” The Department argued that listing a sex other than male or female would “hamper verification of an applicant’s identity,” given the prevalence of binary sex policies in the 50 states. The court agreed with Zzyym, holding that “consistency between inaccurate identification documents does not render them more accurate or reliable.” The court reasoned that “given the State Department’s willingness to allow Zzyym to identify as either male or female, the binary sex policy sunders the accuracy and reliability of information on Zzyym’s passport application.”

The court accepted the State Department’s second reason: that the binary sex policy helpfully matches how other federal agencies record someone’s sex, arguing that “sex is one of the primary data points used by these agencies in recordkeeping,” and that “all such agencies recognize only two sexes.” Zzyym pointed out that the “State Department was apparently willing to tolerate mismatches for transgender individuals.” But the court found that the Department had “reasonably tried to limit unnecessary mismatches and thus satisfied arbitrary and capricious review.” The court also accepted the Department’s argument that “using a third sex designation could burden other state and federal agencies when they use the State Department’s data.”

But the court rejected the Department’s argument on the final two points. The State Department concluded that the medical community lacks a consensus on how to determine whether someone is intersex, rendering an “X” designation “unreliable as a component of identity.” The court reasoned that “even if the medical community disagreed on whether some individuals are intersex, the State Department would need to explain why the lack of a consensus would justify denying Zzyym’s application.” Finally, the Department argued that a third sex designation would be infeasible because of the “required time and expense.” The court noted that the expense was not obvious, citing nine states that insist that “adding non-binary gender designation in accord with national and international standards has required negligible administrative effort — the kind that accompanies routine changes to government documents.”

In its ruling, the court did note that forcing nonbinary intersex individuals like Dana to pick a male or female gender marker in the passport application “injects inaccuracy into the data.” The court noted,“A chef might label a jar of salt a jar of sugar, but the label does not make the salt any sweeter. Nor does requiring intersex people to mark “male” or “female” on an application make the passport any more accurate.” (emphasis supplied).

Zzyym is represented by a small army of litigators, including attorneys from several offices of Lambda Legal and a host of cooperating attorneys from Faegre Baker Daniels LLP.

This article appears in the June issue on LGBT Bar NY’s LGBT Law Notes.

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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