DENVER (CN) – The State Department on Tuesday defended its decision to deny a passport to an intersex applicant, telling a federal judge a passport’s very specific purpose leaves no room for it to be an instrument of self-expression.
As an intersex individual, Dana Zzyym cannot truthfully check M or F on a passport application. The State Department, however, refuses to issue a passport unless Zzyym picks a gender, a stance Zzyym says is unconstitutional.
In November 2016, U.S. District Judge R. Brooke Jackson ordered the State Department to review its policies, saying “the court will not address the constitutional issues unless and until it needs to.”
Following the State Department’s finding that international travel is not a fundamental right – and neither is having a passport with a gender marker of X – Jackson on Tuesday acknowledged the ball was back in his court.
“You may be forcing this court to make a constitutional decision. You are backing me against a wall,” Jackson said at the hearing.
He added, “Dana’s problem is she’s not willing to check either box, so it’s dead-end for her.” He described both sides as “stubborn.”
Born in 1958 with “ambiguous external sex characteristics,” the gender line on Brian Orin Whitney’s birth certificate was originally left blank. At age 5, the child’s parents elected for medically unnecessary corrective surgery and raised the child as male.
A six-year Navy veteran, Whitney changed his or her name to Dana Alix Zzyym in 1995.
As Zzyym came to understand his or her own gender identity, several states have adopted policies recognizing individuals who are neither male nor female. Since Zzyym’s case began, Oregon, Washington state, California and the District of Columbia have added “X” on driver’s licenses to represent individuals who don’t identify as either gender.
“The State Department was asking my client to lie about who they are,” said Zzyym’s attorney Paul Castillo, the Lambda Legal Defense & Education Fund. Castillo said the State Department’s irrational denial violates its own policy of recognizing the gender identity of transgender people.
On behalf of the State Department, U.S. Attorney Bradley Parker said the agency would grant Zzyym a passport once Zzyym chooses one of the two available options, M or F.
“There are fundamental differences in the way the State Department considers transgender and intersex,” Parker said, adding department’s policy is grounded in 1,300 pages of documentation. The department has yet to see an applicant with X gender on their driver’s license and is still considering how to handle the situation when it does arise.
“Now we’re getting down to the real reason – it’s the computer program, it’s the printer, it’s the hassle and cost,” Jackson said, a point Parker did not argue with.
“That is one of five reasons,” Parker said. In addition to the process of adding an X to its system, the State Department worries a third gender choice will throw a wrench into other verification processes.
“The passport is not a matter of self-expression,” Parker said, adding the passport is used to verify that its holder is allowed to cross the border and leave the country. “The insertion of a third variable would undermine the purpose of the passport.”
While Jackson consistently addressed Zzyym with female pronouns during the hearing, the Barack Obama appointee courteously clarified, “When I say ‘she,’ I’m not identifying her as female.”
Jackson did not say when he would rule on the matter.