Intersex veteran challenges passport policy

Lawsuit could allow citizens to use non-binary gender marker

As US officials debate various policies related to gender identity, policymakers and courts are considering non-binary genders for the first time.

A non-binary intersex veteran is suing the U.S. State Department for the right to be identified with an “X" on their passport, which would identify them as neither male nor female.

Dana Zzyym applied for a U.S. passport on Sept. 2, 2014. In the portion of the application that asked for Dana’s sex, they wrote “Intersex.”

In a letter submitted with their application, Dana wrote, “I am an Intersex person. Both my biological sex and my gender is Intersex.”

Throughout this article I will use the pronoun “they” to refer to Dana, because this is the pronoun they prefer.

The International Civil Aviation Organization (ICAO) is a UN organization that sets standards for civilian air travel. In a document titled “Machine Readable Travel Documents” the ICAO states that sex is a mandatory field that may be marked with, “the capital letter F for female, M for male, or X for unspecified.”

In their letter, Dana requested to use the “X” gender marker on their passport.

Dana Zzyym, shown above, is suing the State Department so they may use a non-binary gender marker on their passport. 

 

It took Dana many years to understand their gender and intersex traits, according to Dana’s legal complaint.

Primary Source: Dana’s legal complaint

Dana Zzyym was born in 1958. Dana was born intersex, with biological characteristics between those typical of boys or girls.

I covered intersex people, and debates surrounding how best to raise an intersex child, 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 intersex, others are not.

Dana’s parents and doctors decided to raise Dana as a boy. Dana’s parents named their child, “Brian Orin Whitney.” Dana was not told that they were born intersex.

Dana served in the U.S. Navy between 1978 and 1984.

In 1994, Dana changed their name from Brian Orin Whitney to Dana Alix Zzyym. In 2009, Dana learned from a doctor that they were intersex. Around the same time, Dana tried living as a woman.

By 2011, Dana “came to terms with being intersex,” according to Dana’s legal complaint. Dana now identifies as neither male nor female.

Dana was invited to attend the International Intersex Forum in October 2014 in Mexico City. 

 

Dana submitted their passport application in September 2014 to attend the Mexico City forum.

The State Department sent Dana a letter regarding their passport application on Sept. 24, 2014.

The letter stated, “The Department of State currently requires the sex field on United States passports to be listed as “M” or “F.” Therefore, we are unable to fulfill you request to list your sex as “X.” If you wish to receive a passport listing you as female, as shown on your driver’s license, please return a signed statement indicating that to our office.”

The letter also explained the steps Dana would take if they wanted to receive a passport listing them as male.

Dana submitted additional documents supporting their request to be identified with an “X” marker on their passport.

Sherman Portell, Director of the Colorado Passport Agency, sent Dana a letter in December 2014 that said the State Department denied Dana’s passport application because, “the Department of State requires the sex field on United States passports to be listed as “M” or “F.” ”

Dana requested the State Department reconsider its decision to deny Dana’s passport application in a February 2015 letter.

In an April 2015 letter, State Department Director Jonathan Rolbin confirmed the department’s denial of Dana’s passport application and their request for an “X” to be listed as their sex. The letter stated Dana could submit another passport application, but that department policy only allows for a male or female marker in the sex field.

 

 

 

Dana filed a lawsuit against the U.S. State Department on Oct. 25, 2015, arguing that the State Department’s denial of their passport application violated the Administrative Procedure Act (APA) and the Fifth Amendment of the U.S. Constitution. Dana is being represented in their case, in part, by lawyers working for Lambda Legal, an LGBT rights organization. 

Lambda Legal describes itself as “the oldest and largest national legal organization whose mission is to achieve full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people, and everyone living with HIV, through impact litigation, education, and public policy work.” Some of the lawyers representing Dana in their case work for Lambda Legal. 

 

 

On November 22, 2016, United States District Judge Richard Brooke Jackson ruled that the State Department’s denial of Dana’s application was arbitrary and capricious under the APA.

“I find that the administrative record contains no evidence that the Department followed a rational decision-making process in deciding to implement its binary-only gender passport policy,” Jackson wrote.

 

Federal Judge R. Brooke Jackson, shown above, is presiding over Dana’s lawsuit against the U.S. State Department. Jackson was nominated by President Barack Obama and confirmed by the U.S. Senate in 2011. 

 

 

Judge Jackson ordered the State Department to reevaluate its policy, explaining that the agency could reconsider it or find additional facts to support it.

 

Primary Source: Judge Jackson’s Ruling

 

 

Following the court-ordered review of its binary sex-marker passport policy, the State Department decided to uphold the policy. 

 

Barry Conway, Managing Director of Passport Services, explained the department’s reasons for doing so in a May 1, 2017 memo.

Primary Source: State Department Memo

Dana’s attorneys argue in their latest legal brief, filed Oct. 10, 2017, that the reasons outlined in the memo are inadequate to justify the policy, which they say violates the U.S. Constitution.

Primary Source: Dana’s legal brief

Primary Source: State Department legal brief

Constitutional Claims

In their brief, Dana’s attorneys explained why the State Department’s policy matters to Dana and other non-binary Americans.

“It is hard to imagine a greater intrusion than government requiring a person to live, work, travel, express oneself, and define oneself with an incorrect gender,” Dana’s legal brief states. “It would impinge impermissibly on autonomy and self-definition for government to require a woman to use an identity document incorrectly identifying her as male, or to mandate that a man similarly represent himself as a woman. No less is true for Dana and other Americans who are neither male nor female, who seek simply to answer honestly and with dignity the question, ‘Who are you?’”

Dana’s attorneys argue the binary-only gender-marker policy violates the Fifth Amendment’s requirement that all people receive equal protection under the law.

“The intentional exclusion of passport applicants who are neither male nor female from accurate identification and a core travel document based on their sex relegates them to a stigmatized, second-class status and offends the equal protection guarantee, which withdraws from the Government the power to degrade or demean in the way this binary-only Gender Policy does,” Dana’s legal brief states. 

Dana’s attorneys also argue that the policy should be examined with heightened scrutiny because it discriminates based on gender. If the policy is examined under heightened scrutiny, it is more likely that Dana will win their case. 

 

 

 

The State Department argues that its binary sex-marker policy doesn’t violate the Fifth Amendment’s equal protection clause because the department didn't intentionally discriminate against any particular group.

The State Department rejects Dana’s arguments that the policy discriminates based on gender and argues that the policy isn't based on a suspect classification. If the policy does discriminate based on gender or another suspect classification, it could be examined under heightened scrutiny.

The department argues the policy should be subject to rational basis review, a standard that is easier for the government to meet. 

The State Department states that most intersex individuals identify as either male or female — and are thus not affected by the Department’s passport policy. 

“The policy affects only those individuals who choose not to identify as male or female on the Department’s passport application form, a group that is clearly not a suspect class,” the State Department’s legal brief states.

Both sides agree that the U.S. Supreme Court hasn’t yet identified the level of scrutiny required for cases involving discrimination based on non-binary gender or for non-binary intersex people.

 

 

 

Dana’s attorneys also argue the policy violates the fundamental right to individual dignity and autonomy and the fundamental right to international travel, and thus violate the due process clause of the Fifth Amendment. 

The State Department argues that these are not fundamental rights protected by the due process clause, and that Dana could still travel internationally if they accept a passport with an “F” sex marker that matches their driver’s license.

In its legal brief, the State Department quotes the U.S. Supreme Court as stating courts should be weary of recognizing too many fundamental rights under the Due Process clause, because doing so, “to a great extent, places the matter outside the arena of public debate and legislative action, and risks transforming the Due Process Clause into the policy preferences of the members of the court.” 

 

 

 

 

Arguments for and against the policy

The State Department argues that its policy ensures information contained in passports is accurate and verifiable. The department says it relies on documents such as birth certificates and driver’s licenses to confirm an applicant’s sex.

 

Dana’s attorneys reply that identity documents are intended to represent a person’s identity, and thus should reflect someone’s internal sense of being male or female, their gender identity, rather than their biological sex.

“There is no rational link between requiring a passport applicant to submit a materially false statement about the applicant’s gender and the Department’s interest in ensuring passport information ‘is accurate and verifiable’; in fact, such a requirement sounds in irrationality,” Dana’s legal brief states.

Dana’s attorneys explain that both Oregon and the District of Columbia allow residents to obtain driver’s licenses with an X gender marker, and that other states may soon follow suit. 

NBC Reporter Mary O'Hara wrote a great article on Oregon's decision to allow an X gender-marker option for state driver's licenses. 

The State Department replies that this practice remains the exception rather than the rule.

“Because the overwhelming majority of records that the Department relies on to issue passports still designate the bearer’s sex as either male or female, the Department’s policy helps to ensure that the information in passports is accurate and reliable,” the department’s legal brief states. 

 

 

Dana’s lawsuit against the State Department lists former Secretary of State Rex Tillerson and Colorado Passport Agency Director Sherman Portell as defendants. 

The State Department argues adding a third sex marker would make it more difficult to match and share data with other government agencies. 

 

The department says its sex-marker policy allows it to use data from federal, state and local government agencies to determine whether someone is eligible for a passport.

The department also argues that the policy allows other government agencies to use its passport data more effectively. Law enforcement agencies use state department data to identify victims and to locate persons of interest, according to a department legal brief.

Dana’s attorneys reply that gender is only one of many data points used to verify someone’s identity, adding that the department has other information, such as a passport holder’s name, date of birth, and place of birth to use in matching its records to those held by other agencies. 

 

 

 

The State Department also argues designating someone’s sex as “X” would not provide reliable identifying information because there is no generally accepted medical consensus as to how to define a third sex.

For most applicants, a person’s sex and gender identity match, and for them, their sex marker also indicates their gender.

A transgender applicant may obtain a sex marker that matches their gender identity on their passport if they “provide a medical certification from a licensed physician that the applicant has undergone, or is undergoing, appropriate treatment for transition to the new sex, male or female as appropriate,” according to the May 2017 State Department memo.

Sex reassignment surgery is not a requirement to receive a passport designating the new sex, the memo states.

According to the memo, the State Department does not issue passports based on someone’s gender identity.

“Although the Department is aware that there are individuals whose gender identity is neither male nor female, the Department lacks a sound basis on which to make a reliable determination that such an individual has changed their sex to match that gender identity,” the memo states.

Dana’s attorneys argue the State Department does issue passports with a gender marker matching a person’s gender identity — but only if the applicant has a binary gender identity. 

 

 

 

The State Department also argues that it would take considerable time and resources for it, and other agencies that use its data, to alter their systems to add a third sex designation.

Dana’s attorneys reply that this argument is weak and unproven.

“The Department concedes it has not undertaken a level of effort estimation on the time and cost to add a third sex designation option," Dana's legal brief states. 

 

"Under any level of scrutiny, the Constitution does not sanction the Department’s attempt at maintaining its Gender Policy without record evidence.”

 

 

 

Oral arguments in the case are scheduled for May 29, 2018 before U.S. Federal Judge R. Brooke Jackson.