A federal judge has
ordered the U.S. State Department to issue a passport to an intersex American
citizen who doesn’t identify as either male or female.
On Sept. 19, Judge Richard
Jackson ruled the State Department violated the Administrative Procedure Act (APA),
because its policy against granting a passport with a sex designation other
than male or female was arbitrary and capricious, and exceeded its statutory
authority.
Thus, the judge ordered the
State Department to issue a passport for Dana Zzyym with a marker designating
their sex as “X” for unspecified, rather than an “M” for male or “F” for
female. I first covered Dana’s lawsuit against the State Department on this
blog in April.
Dana was born intersex,
meaning they had biological characteristics between those typical of either
boys or girls.
Dana’s parents raised them as a boy and didn’t tell them that
they were born intersex.
Later on, Dana adopted their current name, before they
learned that they were born intersex.
Today, Dana doesn’t identify as either
male or female and has chosen to use the pronoun “they” to refer to themselves
rather than “he” or “she”.
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| Dana Zzyym has sued the U.S. State Department to receive a passport designating their sex as neither male nor female. Dana is shown in the photo above wearing a t-shirt with the symbol for Lambda Legal, an LGBT advocacy organization that is representing them in their case. |
I covered intersex
people in an
earlier article on this blog. Some intersex people identify as male, others as
female, and some identify as nonbinary.
I previously profiled several non-binary
people who, like Dana, don’t identify as either male or female. Some non-binary
people are biologically intersex, others are not.
In 2014, Dana applied for
a passport from the State Department with an “X” in the sex field rather than
“M” for male or “F” for female. Their passport application was denied, and Dana
sued the State Department.
In November 2016, Judge
Jackson ordered the State Department to reevaluate its policy, explaining that
the agency could reconsider it or find additional facts to support it.
The State Department
issued a memo in May 2017 outlining several reasons for its policy for requiring
passport applicants to select either a male or female sex marker.
In his September
ruling, Judge Jackson explained why he found each of these reasons unconvincing.
Primary Source: Judge
Jackson’s Final Ruling
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| The U.S. Secretary of State is one of the defendants in Dana's lawsuit. The legal battle over Dana's passport application has spanned the terms of three Secretaries of State: John Kerry, Rex Tillerson, and Mike Pompeo. |
Matching Records
The State Department
argued adding a third sex marker would make it more difficult to match
its records with those held by other government agencies — which the department
said would make it more difficult to verify the identity of a passport holder,
determine if an applicant is eligible to receive a passport, and share
information with law enforcement.
Judge Jackson stated the
State Department conceded that gender is just one of many fields, including
social security number, date of birth, and name, that are used to match an
applicant’s data with files held by other agencies.
Jackson added the
Department also admitted that in some partner agency files, the gender field is
either not used or unreliable.
Jackson explained
Washington, Oregon, California, and the District of Columbia each issue IDs
that allow people to choose a third gender option.
“The Department’s
insistence that a binary gender system is necessary to accurately and reliably
crosscheck a passport applicant/holder’s identity ignores the reality that some
American passport applicants will have gender verification documents that exclusively
list a gender that is neither female nor male,” Jackson wrote.
The State Department also
argued that the policy helps ensure that information in passports is accurate
and verifiable.
Jackson found this argument particularly unconvincing.
“I find that requiring an
intersex person to misrepresent their sex on this identity document is a
perplexing way to serve the Department’s goal of accuracy and integrity,” Jackson
stated.
Who would qualify?
The State Department
argued there was no generally accepted medical consensus regarding how to
define a third sex, which would make it difficult for the department to
reliably determine if someone has changed their sex to match their gender
identity.
Jackson cites several
medial authorities that recognize the existence of intersex traits. He also
explains that people who are born intersex would not need to medically transition to
become a third sex, because they were already born that way.
While it’s medically
difficult to decide what traits qualify someone as intersex, Jackson said it’s
also difficult to accurately assign an intersex person as either
physically male or female.
Jackson did not address
the questions the State Department should consider when a non-intersex
applicant, who identifies as non-binary, applies for an “X” gender marker.
Time and Money
The State Department’s
final argument is that adding a third sex marker would be expensive and time
consuming.
Jackson said the
Department has not estimated the amount of time and money that changing the
department’s systems would require, and thus he found this argument was also
unconvincing.
Jackson ruled that the
Department’s reasoning was arbitrary and capricious. He also found that the
Department had acted beyond its statutory authority.
“Because neither the
Passport Act, nor any other law, authorizes the denial of a passport application
without good reason, and adherence to a series of internal policies that do not
contemplate the existence of intersex people is not good reason, the Department
has acted in excess of its statutory jurisdiction,” he wrote.
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| Judge Jackson ordered the U.S. State Department to approve Dana Zzyym's passport application in September. |
Because Jackson determined
the State Department’s decision to deny Dana a passport was illegal under the
APA, he didn’t decide whether the Department’s policy also violated the U.S.
Constitution.
Based upon the above
reasoning, Jackson prohibited the State Department from using its binary-only
gender marker policy to deny Dana’s passport application.
On Nov. 19, lawyers representing the State Department filed a document that states the Department will appeal Judge Jackson's decision to the Tenth Circuit U.S. Court of Appeals.
