The fight for accurate identity documents

 

Transgender, nonbinary, and intersex Americans often have to fight to obtain identity documents that accurately reflect who they are.

I covered the fight for accurate identity documents at length in previous articles for Meticulous Musings. I will summarize and link back to those articles in this analysis.

This article contains developments I haven’t previously covered. But first, let’s take a look at some of the legal challenges that made it easier for people to obtain documents that accurately reflect their identity. 

Pursuing a non-binary passport

In September 2014, Dana Zzyym, and Intersex American, applied for a US passport with an “X” gender marker, rather than an “M” for male or “F” for female.

Passports contain a line indicating the passport holder’s sex, which is generally understood to reflect their gender.

 

 

Previous Coverage: Intersex veteran challenges passport policy

(Meticulous Musings)

 

 

Intersex refers to people who have physical traits different than those traditionally considered male or female. 

Intersex people may have differences in sex chromosomes, genitals, internal anatomy, or hormones compared to how male and female bodies generally develop.

Intersex people can identify as male, female, or nonbinary.

Their biological sex and gender are separate aspects of their identity. 

Dana identifies as nonbinary, which means their gender identity isn’t male or female. Dana uses they/them pronouns.  

 

Dana’s passport application was denied, because the US State Department only issued passports with a M or F gender marker.

Dana sued the State Department in Oct. 2015 to receive a passport with a nonbinary gender marker.

Dana and their lawyers then embarked on a prolonged lawsuit to allow Dana to receive a passport that accurately reflects their identity. 

 

 

Dana Zzyym, shown above, sued the US State Department to obtain a passport with an X gender marker. In this photo, Dana wears a shirt bearing the logo of Lambda Legal, whose lawyers represented Dana in their case.

 

 

In Nov. 2016, Federal Judge Richard Jackson, the judge overseeing the lawsuit, ordered the State Department to reevaluate its policy.

Jackson explained the agency could adopt a new policy or find additional facts to support its current one.

The State Department issued a memo in May 2017 outlining several reasons for its policy requiring passport applicants to select either a male or female sex marker.

Judge Jackson considered the State Department’s asserted reasons for its binary gender marker policy.

In September 2018, Judge Jackson found these reasons to be insufficient and ordered the US State Department issue Dana a passport with an X gender marker.

 

 

Previous Coverage: Judge orders State Dept. to issue passport to non-binary citizen

(Meticulous Musings)

  

The State Department appealed Jackson’s ruling to the Tenth Circuit U.S. Court of Appeals.

In May 2020, the Tenth Circuit issued a ruling that partially upheld, and partially overturned, Judge Jackson’s ruling.

The Tenth Circuit found some, but not all, of the State Department’s reasons for its binary gender marker policy were valid, at least at the time when the department most recently reconsidered the policy.

 

 

Previous Coverage: Intersex passport case drags on

(Meticulous Musings)

  

The circuit court ruled it couldn’t tell whether the State Department would have enacted its binary gender-marker policy if it realized some of its justifications for the policy were unsupported.

The court sent the case back to Judge Jackson and instructed him to order the State Department to reconsider Dana’s passport application.

 

 

Seeking self-determination

Dana’s lawsuit wasn’t the only major challenge to the State Department’s passport gender-marker policies.

An American transgender man sued the State Department to overturn its requirement that transgender applicants present a doctor’s certification to receive a passport that matches their gender identity.

Oliver Morris, a transgender man, applied for a passport card in Oct. 2018, so he could travel to Mexico.

Oliver requested a passport listing his gender as male.

 

 

Previous Coverage: Transgender man challenges U.S. passport policy

(Meticulous Musings)

  

At the time, State Department policy required passport applicants to submit a signed statement from a doctor that a transgender applicant has received, “appropriate clinical treatment for transition” to their new sex, to receive a passport that matches their gender identity.

Oliver received hormone replacement therapy from a nurse practitioner, rather than a doctor.

Oliver, through his attorneys, informed the State Department that he would not provide a doctor’s certification and requested the department issue the passport anyway.

The State Department denied Oliver’s request for a passport listing his sex as male without a doctor’s certification. 

Oliver Morris, a transgender man, sued the State Department to receive a passport with a male gender marker, without providing a doctor's certification.

In April 2019, Oliver filed a lawsuit challenging the department’s denial of his passport application.

In Nov. 2020, Federal Judge Gloria Navarro ruled in favor of Morris, and ordered the State Department to approve Morris’s passport application if he met all other requirements.

The State Department provided notice to the court that it planned to appeal Navarro’s decision.

 

 

Victory

In June 2021, The Biden administration announced new passport gender-marker policies that made it easier for transgender, nonbinary, and intersex Americans to receive passports that match their gender identities.

 

Previous Coverage: State Department updates passport gender marker policies

(Meticulous Musings)

 

 

Secretary of State Antony Blinken announced in a news release that the department’s new policies will allow Americans to self-select their gender marker without requiring a doctor’s certification.

Blinken also announced the department was working toward allowing nonbinary and Intersex Americans to select a third gender marker, but that it would take time to update the department’s computer systems.

The news release didn’t specify the changes had been prompted by litigation by Dana Zzyym and Oliver Morris against the department’s previous policies.

 

 

 

Dana finally receives their passport

Dana Zzyym finally received their passport, complete with an X gender marker, on Oct. 27, 2021.

They received their passport six years after filing their lawsuit, and seven years after initially applying for their passport.

Dana almost cried opening their mail after receiving their hard-fought passport.

Dana wrote about their reaction in an editorial for NBC News.

  

Read: America finally issued me an accurate passport. Here’s why it took so long.

(NBC News)

 

Dana explained why they fought to receive an accurate passport.

“Importantly, I was not asking for a special or unique passport just for me; I was asking for an accurate passport with a gender marker that reflected who I am. At the very least, I was looking for official paperwork that did not force me to identify as someone I am not,” Dana said.

“And I was not alone in this fight — I was joined by intersex and nonbinary folks across the country.”

 

 

Dana Zzyym

 

Dana said many states allow nonbinary, transgender, and intersex people to receive accurate identity documents.

“A U.S. passport is an essential identity document, as important as birth certificates and state ID cards and drivers’ licenses. And, in dozens of states, intersex, nonbinary and transgender residents are able to change the gender designations on those documents so that they are accurate. But the U.S. State Department has long insisted that intersex and nonbinary citizens choose “M” for male or “F” for female on their passport applications.” Dana said.

“I refused to do that — because I am neither.”

 

In their editorial, Dana discussed the difficulties intersex people experience.  

“For centuries, society has ignored and even hidden the existence of intersex people, which has led to so much isolation and pain — both from social erasure and from forced surgeries that physically erase who we are,” Dana wrote.  

“I went through this myself, and after years of pain, I felt obliged to do something for my community. I decided that forcing the government to recognize that we exist, on the basis of sex, was a necessary step to end this agony.”

 

Dana was excited to finally receive their hard-fought passport.

“I am thrilled that I now have an accurate U.S. passport. I am even more thrilled that other intersex and nonbinary U.S. citizens are now also able to apply for their accurate passports,” they said.

“It is way past time for us to be fully recognized for who we are. It’s more than a piece of paper — it’s an official acknowledgement of a community that for far too long has been kept in the dark.”

 

Dana Zzyym is the Associate Director of the Intersex Campaign for Equality. You can learn more about the organization’s work on its website.

 

 

 

Nonbinary passports now available

According to the State Department’s website, US passport applicants can now choose to receive a passport book or passport card with an X gender marker.

Later this year, the State Department plans to allow applicants to select an X gender marker if they are applying for a Consular Report of Birth Abroad, which is a document issued to someone born outside the US who receives American citizenship or nationality through their parents.

 

“You can select the gender marker you would like printed on your U.S. passport.

 

The gender you select does not need to match the gender on your supporting documentation such as a birth certificate, previous passport, or state ID.

 

We no longer require medical documentation to change the gender marker on your U.S. passport.

 

You can select male (M), female (F), or unspecified or another gender identity (X) as your gender marker if you are applying for a U.S. passport book or passport card.  

 

You can apply in-person or renew by mail for routine or expedited service.

 

 

Beginning in late 2023, you will be able to select X as a marker if you are applying for a Consular Report of Birth Abroad.  

 

 

We recommend you use our Form Filler if you are requesting a passport with an X gender marker.

 

If you are having technical issues with the Form Filler, you can download the PDF version of your form.”

 

Nonbinary Driver’s Licenses

Many US States now offer their nonbinary residents the option to receive driver’s licenses with an X gender marker.

In December 2018, I wrote an article where I explained six states and the District of Columbia had begun to issue non-binary driver’s licenses or planned to do so in the near future.

 

 

Previous Coverage: US States begin offering non-binary Driver’s Licenses

(Meticulous Musings)

 

 

Many additional states have adopted the same policy in the subsequent years.

The Movement Advancement Project (MAP) is a think tank that works to, “create a thriving, inclusive, and equitable America.”

According to MAP, 22 states and the District of Columbia allow residents to choose an X gender marker on their driver’s license.

 

Read: Identity Document Laws and Policies

(MAP)

 

MAP has also created a useful infographic that uses a star to identify these states. 

 

Of course, this means that non-binary driver’s licenses are not available in 28 states.

And some states make it difficult for transgender people to receive identity documents, including driver’s licenses, that match their gender identity.

So there remains much work to be done for transgender, nonbinary, and intersex Americans to easily access accurate identity documents.