A federal judge ruled Tuesday in favor of Dana Zzyym, an intersex Navy veteran who sued the State Department for a passport that would reflect a gender other than “male” or “female.”
“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,” U.S. District Judge R. Brooke Jackson wrote. “Therefore, the proper next step is to remand the case to the Department to give it an opportunity either to shore up the record, if it can, or reconsider its policy.”
Zzyym was born intersex, uses the pronoun “they” and does not identify as male or female. As a child, Zzyym was raised as a boy after receiving surgeries that “traumatized [them] and left them with severe scarring,” according to Lambda Legal, who represents them.
In 2014, they applied for a U.S. passport to attend the International Intersex Forum in Mexico City but were denied because they did not select “male” or “female” on their application. The suit, filed by Lambda Legal, claimed that the denial violated the Due Process and Equal Protection clauses in the U.S. Constitution.
“Dana was denied a passport because of personal characteristics, and that’s discrimination pure and simple,” Paul Castillo, Zzyym’s lawyer, told the NewsHour on Wednesday. “We call on the State Department to do the right thing and provide the equal opportunity for Dana, and others who are neither male nor female, to obtain an accurate passport that reflect who they truly are.”
The State Department can now appeal the decision to the Tenth Circuit Court of Appeals. If the department does not choose to appeal, it must reconsider its current passport policy with the possibility of adding a third gender marker, Castillo said. Several other countries allow a third gender option on passports, typically marked by an “X,” which is permitted by the International Civil Aviation Organization, an arm of the United Nations that helps ensure safe aviation.
“Today’s decision is great news, but I realize it is the first step in a long battle,” Zzyym, who is based in Fort Collins, Colorado, said in a statement. “Every day, I am forced to suffer the consequences of decisions made for me as a child. I shouldn’t have to suffer at the hands of my government – a government I proudly and willingly served – as well. It’s a painful hypocrisy that, simply because I refused to lie about my gender on a government document, the government would ignore who I am. I hope the State Department will do the right thing now.”
The decision comes as activists in several states have legally changed their gender to non-binary, a gender that is neither male nor female, prompting state agencies to reconsider the options on other identifying documents. In Oregon, Jamie Shupe became the first legally non-binary person in the U.S. in June, leading the Oregon Department of Motor Vehicles to review the options for sex markers on driver’s licenses.
In September, Shupe received confirmation that the Oregon DMV would draft new rules allowing them “to capture and print an identifier for sex other than M for male and F for female on the driver license, permit, and ID card.”
In Santa Cruz, California, Kelly Keenan became legally non-binary in September. Keenan is followed by others who plan to legally change their gender to non-binary in San Francisco, Santa Clara County, Alameda County and Sacramento County, according to attorney Toby Adams of the Intersex and Genderqueer Recognition Project, which is helping them file the petitions.
A California DMV spokesman told the NewsHour via email in late October that it was “in the early stages of assessing this matter” and could not comment on whether it would eventually add a new option for sex on IDs.
Not all people filing to change their gender to non-binary have successfully done so. A judge in Medford, Oregon denied a similar petition by Amiko-Gabriel Oscar Blue on Nov. 17, according to the Associated Press.
But the success of some cases in Oregon and California highlight a growing movement for legal recognition for people who do not identify as male nor female, Castillo said.
“On both the federal and state level, there are an increasing number of individuals seeking accurate identification,” Castillo said. “It serves no purpose for either the state or federal government to require people to lie about who they are or to require gender diverse individuals to carry inaccurate identification documents.”