Trial News

In a suit brought by a person who was born intersex, the Tenth Circuit found little support for a State Department policy requiring passport applicants to select either “male” or “female” in the application's “sex” field. The court said the State Department has the authority to deny passports on some grounds but it did not adequately justified its binary gender policy. The court rejected the department’s arguments that the policy ensured accuracy, that there is a lack of medical consensus on the definition of “intersex,” or that creating an “intersex” designation was administratively infeasible. (Zzyym v. Pompeo, 2020 WL 2393789 (10th Cir. May 12, 2020).)

Dana Zzyym, an intersex individual, applied for a U.S. passport in September 2014. Zzyym identifies as neither male nor female and wrote “intersex” under the application’s “sex” field rather than checking the “M” or “F” boxes. Zzyym also submitted a letter explaining their intersex status and requesting that “X” be an acceptable marker in the passport application's “sex” field, in conformity with International Civil Aviation Organization standards for machine-readable travel documents. Nevertheless, the State Department denied Zzyym’s application, stating that it was unable to fulfill the request to list Zzyym’s sex as “X.” Zzyym appealed the agency’s decision, submitting two sworn documents from physicians verifying that Zzyym is “intersex.” The State Department again denied Zzyym’s application and request for “X” designation, and in October 2015, Zzyym filed suit in federal district court in Colorado.

Zzyym claimed that the State Department’s refusal to allow “X” status in the passport sex field was arbitrary and capricious, in violation of the Administrative Procedure Act, and exceeded the department’s congressionally delegated authority. Zzyym also brought due process and equal protection claims under the Fifth Amendment. In a November 2016 ruling, the district court agreed with Zzyym, finding that the State Department’s decision-making process for its binary gender classification system was not rationally based and requiring it to reevaluate its gender policy. The court did not reach Zzyym’s constitutional claims.

While the agency was evaluating its policy, Zzyym again applied for a passport, requesting either a standard or a temporary passport with “X” in the “sex” field. In May 2017, the State Department issued a memorandum explaining its decision to maintain the binary sex designation policy and again denied Zzyym’s passport application. In June 2017, Zzyym reopened the district court case, filing a supplemental complaint alleging the same claims. In September 2018, the district court again found no rational explanation for the State Department’s binary gender policy and held that withholding the passport from Zzyym exceeded the department’s statutory authority. The court also enjoined the department from relying on its binary-only gender policy to continue to deny Zzyym a passport.

On appeal before the Tenth Circuit, the State Department maintained that it had statutory authority under the Passport Act to require passport applicants to identify as either male or female. Noting that the Passport Act is silent as to whether a passport may be denied to an individual for failure to select from one of two binary gender options, the appellate court turned to cases where individuals had been denied passports on other grounds, such as Communist party affiliation, unlawful conduct, foreign policy, and national security concerns. While “the Supreme Court has crystallized some lawful and unlawful justifications for denying a passport, these justifications are illustrative—not exhaustive,” the court said, finding that the State Department is authorized under the Passport Act to deny a passport based on an applicant’s failure to identify as either male or female. 

The court then turned to Zzyym’s claim that the binary gender policy is arbitrary and capricious, examining each of the State Department’s five reasons for the policy. The court found that although two of the department’s reasons—that the policy “helped identify individuals who are ineligible for passports” and “helped make passport data useful for other agencies”—were reasonable, its remaining three reasons for the policy were not.

As to whether the binary gender policy ensured the “accuracy and reliability of U.S. passports,” the court concluded that “requiring intersex people to mark ‘male’ or ‘female’ on an application [does not] make the passport any more accurate” and “Zzyym’s experience illustrates the inevitable inaccuracies of a binary sex policy.” The court also disagreed with the State Department’s assertion that there is a lack of medical consensus on how to identify individuals as intersex. The department’s brief defines intersexuality, but even if there is a lack of consensus, the department has failed to explain why this would justify denying Zzyym’s application, the court said. Finally, noting that several states have added a nonbinary gender classification with “negligible administrative effort,” the court found no support for the department’s argument that adding the “X” designation is infeasible due to time and expense.

Unsure whether the department would still choose to rely on its binary sex policy without these three justifications, the court vacated the district court’s judgment in favor of Zzyym but instructed the State Department to again consider Zzyym’s application for an intersex passport.

Paul Castillo, a Dallas attorney at Lambda Legal who represented Zzyym, said “what should have been a mundane trip to the Colorado Passport Agency for an essential identity and travel document has turned into a five-year battle for an accurate passport. The State Department has not put forth any sensible reason why Dana Zzyym, or any nonbinary, intersex, or gender diverse applicant, should be forced to lie to secure a passport.” While Castillo had hoped for “a more definitive ruling,” he was pleased that “the court recognized that treating every applicant as male or female is inconsistent with the State Department’s own goal to issue an accurate identity document.”

“In the intervening five years since we first filed, we’ve won two district court rulings, more than a dozen U.S. states and the District of Columbia now offer accurate identity documents for their residents, and U.S. Rep. Ro Khanna (D.-Cal.) has introduced a bill requiring the State Department to offer an ‘X’ gender marker for passport applicants,” Castillo added. “This is the third time a court has rejected key assertions in the State Department’s case and it’s well past time that the department issues Dana Zzyym a passport that accurately reflects who they are.”

Columbus, Ohio, attorney C. Benjamin Cooper, who co-founded Ohio’s first legal clinic for transgender people, said, “we’re seeing more and more states provide a nonbinary option on driver’s licenses, birth certificates, and other documents—now at least 18 states. If the federal government is truly concerned about accuracy and avoiding mismatches, it should allow the nonbinary marker too. People know who they are. We should let them tell us.”

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