DENVER (CN) – A federal judge ordered Wednesday that “X” can mark the spot for gender on the passport of an intersex applicant.
Colorado citizen Dana Zzyym sued the U.S. State Department in October 2015 when they were denied a passport on the basis that Zzyym wrote “intersex” in the box that asked the applicant to mark male or female. As an intersex individual, Zzyym is neither male nor female and has adopted the plural pronoun.
In 2016, U.S. District Judge R. Brooke Jackson asked the State Department to explain the rationale behind the binary-gender marker policy, which it failed to do at a hearing in May.
“After considering the briefings, oral argument, and relevant law, the Court determines that the Department’s gender policy is arbitrary and capricious under the Administrative Procedure Act in excess of the Department’s statutory authority,” wrote Jackson in his 20-page opinion.
“Dana’s Complaint describes invasive and unnecessary medical procedures that doctors subjected Dana to as a child that attempted but failed to change Dana’s intersex nature. 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 wrote.
Following the lead of the International Civil Aviation Organization, gender was added to the U.S. passport form in 1976. Today, not only does the group recognize a third gender, so do four U.S. states and territories.
“It is well past time for Dana Zzyym and other non-binary citizens of this country to be recognized and respected for who they are, to live openly and authentically, and to be able simply to travel freely about the world,” said Paul Castillo, senior attorney with Lambda Legal who represented Zzyym. “Dana is intersex, and identifies as intersex and non-binary, but the U.S. Passport application did not allow them to identify themselves accurately.”
“In light of this ruling, we call on the State Department to promptly issue Dana this essential document that accurately reflects their gender,” Castillo added in a release.
Born in 1958 with “ambiguous external sex characteristics,” the gender line on Brian Orin Whitney’s birth certificate was originally left blank. At five years old, the child’s parents elected for medically unnecessary corrective surgery and raised Whitney as their son. Whitney served in the U.S. Navy for six years and in 1995 changed their name to Dana Alix Zzyym.
As Zzyym came to understand their own gender identity, several other states have also begun to adopt policies recognizing individuals who are neither male nor female.
Since this case began, Oregon, Washington, D.C., Washington state and California have come to recognize “X” on official driver’s licenses, to represent intersex individuals.
“It’s been nearly four years since the State Department first denied me a critical identity document that I need to do my job and advocate for the rights of intersex people both in the United States and abroad. The agency’s refusal to issue me a passport has already cost me opportunities in Mexico City and Amsterdam,” said Zzyym in a release. “I’m not going to lie on my passport application, I shouldn’t have to, and the judge here, twice, has agreed with me.”
While Zzyym also asked the court for a declaratory judgment that would prohibit the State Department from using its binary-gender marker policy to deny passports to other intersex applicants, Jackson kept the ruling narrow and avoided a Constitutional decision, “Because Dana is the only plaintiff in this case, I will only evaluate this request for relief with regards to Dana.”