By EMMA GANNON
DENVER (CN) – A federal judge asked the Colorado Passport Agency to reconsider its decision to deny an intersex Coloradan’s passport after the agency said it did not want to offer a third gender option on its passport application.
Judge Brooke Jackson remanded the case Tuesday, after finding the agency’s decision to deny Dana Zzyym a passport “unpersuasive.”
“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,” Judge Jackson’s order says.
Zzyym, a U.S. Navy veteran and Associate Director of the Intersex Campaign for Equality, was born with ambiguous sex characteristics and raised as a boy by their parents. But at the age of 36, Zzyym embraced their intersexual nature and changed their name from Brian Whitney to Dana Zzyym.
Zzyym applied for a U.S. passport in September 2014, and wrote “intersex” below the “sex” category instead of choosing “M” for male or “F” for female. Zzyym wrote the agency a letter that requested a third option, “X,” to denote Zzyym’s non-binary status.
The agency denied Zzyym’s application a month later, saying that such an option would make it difficult to sync information across law enforcement databases that only use binary systems.
Zzyym appealed the decision in Colorado federal court, saying in their complaint that they had undergone “irreversible, invasive, painful, and medically unnecessary surgeries” at a young age to arbitrarily conform to one sex over the other, and that forcing them to reclaim one of the pre-established binary sexes would “disparage plaintiff’s choice to live openly and authentically and diminish plaintiff’s personhood.”
“Dana cannot truthfully submit an application claiming to be either male or female,” Zzyym’s original complaint says. “Defendants denied plaintiff a passport on the basis of personal characteristics rather than area restrictions affecting all citizens.”
In her 12-page order, Judge Brooke Jackson agreed that the agency had failed to justify why it couldn’t offer transgendered and intersex individuals a separate choice – especially when countries like Australia have already implemented a third option on passport applications for those who do not adhere to the “male” or “female” gender.
“How does the Department sync a transgender individual’s passport information with law enforcement records that might list that very same passport holder as the opposite sex?” the order asks, noting Zzyym’s “female” classification on their driver’s license, which would directly contradict the “male” classification the agency wished to use to issue Zzyym’s passport.
“Without answers to these questions, I cannot conclude that the government rationally decided to formulate a binary-only gender policy,” Jackson added.
She also noted that she did not yet want to get into the “constitutional fray.”
“The court will not address the constitutional issues unless and until it needs to,” the order says.
Zzyym is represented by Brian Lynch of Faegre Baker Daniels in Denver.