A District Court Tuesday ruled that the U.S. State Department violated federal law when it denied a passport to Lambda Legal client Dana Zzyym, a U.S. citizen and Navy veteran who is intersex. The State Department denied Dana’s passport application because Dana could not accurately choose either male or female on the application form, which does not provide any other gender marker designation.
“This is an important victory for Dana Zzyym and other intersex and non-binary citizens, who simply want to be recognized and respected for who they are, to live openly and authentically, and to have their government recognize them for who they are,” said Lambda Legal Senior Attorney Paul D. Castillo. “In light of this ruling, we call on the State Department to do the right thing and issue accurate passports that reflect who Dana and all non-binary citizens truly are. Why should Dana – or any non-binary person – be forced to lie about their gender on a passport application when there are other proven solutions already implemented by countries elsewhere?”
In his ruling, Judge R. Brooke Jackson stated that he found, “no evidence that the Department followed a rational decision-making process in deciding to implement its binary-only gender passport policy,” and ordered the U.S. Passport Agency to reconsider its earlier decision to deny Zzyym a passport.
“Today’s decision is great news, but I realize it is the first step in a long battle,” Zzyym said. “Every day, I am forced to suffer the consequences of decisions made for me as a child. 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. I hope the State Department will do the right thing now.”
Dana, who uses the gender-neutral pronouns “they,” “them” and “their,” was born with ambiguous sex characteristics. Shortly after Dana’s birth, their parents and doctor decided to raise them as a boy. As a result, Dana underwent several irreversible, painful and medically unnecessary surgeries that didn’t work, traumatized Dana and left them with severe scarring.
It was only many years later, after serving six years in the U.S. Navy and attending Colorado State University, that Dana began researching surgeries and came to understand they had been born intersex. Drawing on personal experience, they began educating the public about issues facing intersex people. Dana currently serves as associate director for the United States affiliate of the Organisation Intersex International (OII-USA).
As part of their work, Dana was invited to attend the International Intersex Forum in Mexico City in October, 2014, at which time Dana applied for a U.S. passport. The application requires that the applicant select a gender marker of either “male” or “female.” It also requires first-time applicants to submit evidence of citizenship, such as a birth certificate, which in Dana’s case lists their sex as “unknown.” Notwithstanding the information on their birth certificate and the fact that Dana’s doctors with the U.S. Department of Veterans Affairs confirm their gender as intersex, Dana’s application for a passport was denied.
Several countries currently issue passports with gender markers other than “F” (female) or “M” (male), including Australia, India, Malta, Nepal, and New Zealand. Most countries that offer a third gender marker on their passport use the non-specific “X” because it is recognized by the International Civil Aviation Organization (ICAO), a United Nations agency that sets forth international travel document standards.
Handling the case for Lambda Legal are Paul D. Castillo, Demoya Gordon, Hayley Gorenberg, Dru Levasseur, and Camilla B. Taylor, joined by pro-bono co-counsel Michael A. Ponto, Emily E. Chow, Thomas G. Hackney and Bryan L. Lynch of Faegre Baker Daniels LLP and Jessica Kunevicius and Kristin Petri of The Law Office of Jessica Kunevicius, LLC.