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.
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Dana Zzyym, shown above,
is suing the State Department so they may use a non-binary gender marker on
their passport.
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It took Dana many years to
understand their gender and intersex traits, according to 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.
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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.
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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.
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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.
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.
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.
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.
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Dana’s lawsuit against the
State Department lists former Secretary of State Rex Tillerson and Colorado
Passport Agency Director Sherman Portell as defendants.
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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.
