This summer, the Biden administration made it easier for transgender and non-binary Americans to receive passports that match their gender identities.
The State Department now allows passport applicants to self-select their gender marker and no longer requires a doctor's certification of treatment for gender transition.
The department will also soon offer a gender marker for non-binary, Intersex, and gender non-conforming Americans as well.
The changes were prompted by two lawsuits against the U.S. State Department that challenged its passport gender-marker policies.
Dana Zzyym, a non-binary
Intersex American who doesn’t identify as either male or female, challenged the
State Department’s policy against granting passports with a third gender
marker.
The State Department denied Zzyym’s request for a passport with an “X” gender marker.
Zzyym sued in Oct. 2015, and their case has been litigated in the courts for the past six years.
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| Dana Zzyym's lawsuit against the State Department has been litigated in federal court for almost six years. (Photo courtesy of Lambda Legal, which is representing Dana in their case) |
I covered Zzyym’s case extensively in three separate articles.
Oliver Morris, a transgender American, sued in April 2019 to challenge the State Department’s requirement that transgender passport applicants must submit a doctor’s certification that they have received treatment for gender transition, before they can receive a passport that matches their gender identity.
I covered Morris’s case in a previous article.
On June 30, U.S. Secretary of State Antony Blinken released a news release announcing the State Department’s new passport gender marker policies.
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| Antony Blinken was nominated by President Joe Biden to be his Secretary of State. The U.S. Senate confirmed Blinken's nomination Jan. 26 by a vote of 77 to 22. (Photo Courtesy of AFP) |
The statement didn’t specify the changes had been prompted by litigation against the department’s previous policies.
The new gender marker policies also apply to Consular Reports of Birth Abroad, which are documents issued to children born outside the United States who receive American citizenship or nationality through their parents.
New policies
Blinken’s statement begins by affirming the Biden Administration’s support for LGBT rights.
“The Department of State is committed to promoting the freedom, dignity, and equality of all people – including LGBTQI+ persons,” the statement said.
“Since assuming office, President Biden has taken several executive actions demonstrating this administration’s commitment to human rights and has directed agencies across the U.S. government to take concrete actions to promote and protect the human rights of LGBTQI+ persons around the world.”
“Today, I am pleased to announce that the Department will be taking further steps toward ensuring the fair treatment of LGBTQI+ U.S. citizens, regardless of their gender or sex, by beginning the process of updating our procedures for the issuance of U.S. Passports and Consular Reports of Birth Abroad (CRBA).”
The State Department announced it will allow Americans to self-select their gender marker without requiring a doctor’s certification, as Oliver Morris sought to do.
“Most immediately, we will be updating our procedures to allow applicants to self-select their gender as ‘M’ or ‘F’ and will no longer require medical certification if an applicant’s self-selected gender does not match the gender on their other citizenship or identity documents,” the statement said.
The State Department is also working towards allowing non-binary and Intersex Americans to select a third gender marker, as Dana Zzyym had tried to do, but that will require the department to update its computer systems, which will take time.
“The Department has begun moving towards adding a gender marker for non-binary, intersex, and gender non-conforming persons applying for a passport or CRBA,” the statement said.
“We are evaluating the best approach to achieve this goal. The process of adding a gender marker for non-binary, intersex, and gender non-conforming persons to these documents is technologically complex and will take time for extensive systems updates.”
“The Department will also be working closely with its inter-agency partners to ensure as smooth a travel experience as possible for the passport holder.”
“As we work towards this longer-term goal of making available a gender marker for non-binary, intersex, and gender non-conforming persons seeking a passport or CRBA, the Department will provide updates on the process and any interim solutions via our website.”
The linked webpage explains the State Department doesn’t know when it will begin to offer a gender marker for non-binary, Intersex, and gender non-conforming persons.
The webpage states applicants should not apply for a passport with a non-binary gender marker in the meantime.
The statement concluded by reaffirming the Biden administration’s commitment to LGBT rights.
“In line with the Administration’s commitment to re-engage with allies and partners, the Department is taking these steps after considerable consultation with like-minded governments who have undertaken similar changes,” the statement said.
“We also value our continued engagement with the LGBTQI+ community, which will inform our approach and positions moving forward. With this action, I express our enduring commitment to the LGBTQI+ community today and moving forward.”
Wrapping up the lawsuits
On March 22, the U.S. government filed a motion to dismiss its appeal of the district judge’s decision in favor of Morris. Morris agreed with the government’s motion to dismiss the appeal.
On July 16, the U.S. government and Zzyym filed a joint motion to grant the State Department more time to reconsider Zzyym’s passport application as it works to implement its newly-announced policy.
Primary Source: Motion for Extension
An important victory
The State Department’s new policies will greatly benefit LGBT Americans who seek identity documents that accurately reflect who they are.
Through its new passport policy, the U.S. government will officially recognize the legitimacy of the gender identities of non-binary Americans.
I am very pleased with the State Department’s new gender marker policies.
The policies demonstrate that progress can be achieved through a combination of impact litigation and a receptive administration that respects and honors its country’s LGBT citizens.
Impact litigation wouldn’t be possible without plaintiffs, like Oliver Morris and Dana Zzyym, who are willing to become limited public figures and challenge policies that adversely affect LGBT Americans.
These developments are a testament to the patience and persistence of Dana Zzyym and their legal team.
They continued forward with their legal challenge for six long years, through three presidential administrations, until they finally won an important victory for non-binary Americans, and raised awareness about them along the way.
I am a non-binary American myself.
I am also a monthly donor to Lambda Legal, an organization that fights for LGBT equality in the courts.
Lawsuits brought by Lambda Legal played key roles in the cases that led to the Biden administration’s new passport policies.
Lambda Legal represented Zzyym in their case.
Lambda Legal also litigated for transgender rights in Karnoski v. Trump, a challenge to the Trump administration’s ban on transgender service members in the military.
That lawsuit established a key Ninth Circuit precedent that Judge Navarro cited in her summary judgement in favor of Morris.
LGBT Americans are often frustrated by the ways they are treated by society, their government, and/or their elected officials.
That makes it all the more important to celebrate our victories.
This was quite the victory, and it’s one worth celebrating.
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