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

 

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”. 

 

 

 

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

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. 

 

 

 

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. 

 
Primary Source: Notice of Appeal