Lawyers representing an intersex Navy veteran have asked the 10th U.S. Circuit Court of Appeals to uphold a lower court ruling finding that the State Department’s policy prohibiting a third, neutral gender marker on U.S. passports is discriminatory.

Lambda Legal, representing Dana Zzyym, who is both intersex and nonbinary, filed a brief with the 10th Circuit arguing that, as the district court found in its ruling, the State Department exceeded its authority under the Passport Act when it denied Zzyym’s application for a passport based solely on personal characteristics.

The brief also argues the agency did not adequately engage in reasoned decision-making, particularly in light of several U.S. states now issuing identity documents with gender-neutral markers, and the fact that the “X” gender marker is duly authorized by the United Nations agency charged with establishing global requirements for passports. Currently, at least 11 other countries issue passports with gender-neutral markers, including Australia, Bangladesh, Canada, Denmark, Germany, India, Malta, Nepal, New Zealand and Pakistan.

“It makes no sense that the State Department would insist that a passport applicant be untruthful, much less deny a vital travel and identity document solely based on an applicant’s gender,” Paul Castillo, counsel for Lambda Legal, said in a statement. “Dana has lost countless personal and professional opportunities over the past four years because the agency wants to force them to carry and present false identity documents. No law-abiding citizen should be blocked from leaving the country just because of who they are.”

The State Department has originally denied Zzyym’s passport application because Zzyym did not choose either male or female on the application form. Zzyym, who serves as an associate director for the Intersex Campaign for Equality, needed the passport to attend an international conference in Mexico City, but was denied due to that refusal.

Zzyym sued, with a federal judge repeatedly finding in favor of them in three separate rulings, and the State Department openly flouting the judge’s ruling and refusing to issue a passport with a gender-neutral marker.

Most perplexing of all is that even though Zzyym’s birth certificate — which they provided with their application — lists their sex as “unknown,” and the fact that Zzyym’s doctors with the U.S. Department of Veterans Affairs have recognized them as intersex, the State Department continues to refuse to issue an accurate passport.

In the third and most recent round of legal wrangling, the district court again ruled against the State Department, which then appealed the decision to the 10th Circuit, which stands poised to hear the case in the coming months.

“It’s absurd that the State Department would rather me just randomly check a box: male or female,” Zzyym, who, in the meantime, has been able to obtain a Colorado license with a gender-neutral marker without incident. “It’s not who I am, and it would expose me to greater scrutiny when my Colorado driver’s license now shows ‘X’. I’m not going to lie on my passport application, and I shouldn’t have to.”

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