[This analysis is the third in a series about a lawsuit by an intersex American to receive a passport with a non-binary gender marker.
My first and second posts provide additional information about the case.]
The U.S. Tenth Circuit Court of Appeals issued a decision in May that guarantees a nearly five-year-old lawsuit won’t be over any time soon.
Dana Zzyym is a nonbinary and intersex American who doesn’t identify as either male or female. Dana sued the U.S. State Department after their passport application was denied, because they refused to declare their sex as either male or female.
Instead, Dana requested an “X” gender marker in the passport’s field for an applicant’s sex.
X is a gender marker used in some countries and U.S. states to refer to someone who doesn’t identify their gender as either male or female.
In September 2018, U.S. Federal Judge Richard Jackson ruled in Dana’s favor.
Jackson determined the State Department violated the Administrative Procedure Act, because its policy against granting a gender marker other than male or female was arbitrary and capricious and exceeded the department’s statutory authority.
Almost 20 months later, the Tenth Circuit Court of Appeals issued a decision that upheld parts of Jackson’s original ruling, while overturning other parts of it.
New decision
The Circuit Court ruled the State Department had statutory authority to deny Dana’s passport application. The court determined some of the department’s reasons for doing so were arbitrary and capricious, while others were not.
The court determined the policy did not ensure accuracy and reliability, was not justified due to a lack of medical consensus regarding how to identify who qualifies as intersex, and was not justified due to the time and expense required to change the department’s computer systems.
The court concluded, however, the policy could be supported by the State Department’s need to allow its officials to compare its database of personal identifiable information with databases maintained by federal and state agencies for the purpose of determining passport eligibility, and to allow officials from other agencies to easily access the department’s database.
The State Department argued adding a third sex designation would have lead to mismatches in searches that would have created difficulties for officials comparing information across different government databases.
The Circuit Court determined it could not tell whether the State Department would have enacted its binary-only gender-marker policy if the department had realized some of its justifications for the policy were unsupported.
The court sent the case back to Judge Jackson and instructed him to vacate the State Department’s decision and order the department to reconsider Zzyym’s application for an intersex passport, effectively starting the entire process over again.
Primary Source: Circuit Court Decision
Analysis
Unlike the Circuit Court, I believe it is clear how the department would have responded if it realized some of its justifications were unsupported.
From the very beginning, it appears the State Department has been working backwards from its conclusion not to allow a third gender marker for passports.
The State Department didn’t issue Dana a passport with a third gender marker because the agency doesn’t view non-binary genders as legitimate and worthy of official recognition.
Everything else is a reverse-engineered argument for a pre-determined conclusion.
The Circuit Court’s statement to the contrary is merely a polite inter-branch legal fiction.
That being said, polite legal fictions, particularly between separate power centers in a multi-branch government, are often necessary for a liberal democracy to function.
What next?
A key aspect of the Circuit Court’s analysis is found in two separate footnotes.
In the first footnote, on page 16, the court clarified it was not considering any developments that have taken place after the State Department adopted its policy in May 2017.
Since then, several states have allowed non-binary people to obtain identification documents, including driver’s licenses, with a listed gender other than male or female.
In the second footnote, on pages 41-42, the court specified the State Department’s reconsideration of its policy must consider subsequent developments.
Any further litigation in the case would be based on the State Department’s upcoming decision-making process, even if the department reaches the same conclusion.
The fact more states allow identity documents that list a third gender weakens the State Department’s remaining arguments from its most-recent evaluation of its binary gender-marker policy.
Those remaining arguments concern the difficulty of matching the department’s database with those maintained by other government agencies, including state agencies.
I doubt these developments will sway the State Department’s judgement, but it would make their case weaker in federal court.
Currently, it seems likely Joe Biden will win the U.S. presidential election in November. If Biden wins, his administration will undoubtedly change many policies to improve LGBT rights.
One of those changes could be to allow applicants to choose non-binary gender markers for their passports.
If Trump is reelected, it seems exceedingly unlikely the State Department would willingly choose to allow passport applicants to select a non-binary gender marker.
And Dana’s lawsuit, which seeks to compel the State Department to do so, will take many years to reach a conclusion, unless the White House and State Department decide to change the policy on their own.
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