Lambda Legal returned to federal district court today to argue once again on behalf of U.S. citizen and Navy veteran Dana Zzyym, an intersex person whose gender identity is neither male nor female to whom the U.S. State Department refuses to issue an accurate passport . Today’s hearing comes 18 months after the court ordered the State Department to reconsider its previous denial of Dana’s passport application. Dana cannot accurately choose either male or female on the passport application form, and the form does not provide any other gender marker designation.

“The continued delay by the State Department is unconscionable and in effect places Dana under nationwide house arrest,” said Paul D. Castillo, Lambda Legal Staff Attorney. “It has been more than three years since Dana applied for a U.S. Passport, and 18 months since this court ruled against the State Department, and still Dana is denied an accurate essential identity document. Dana deserves better from the country they served for six years.

“Several countries issue passports with gender markers other than male or female,” Castillo added. “Last year, Oregon officials unanimously voted to allow state residents to select “X” as a gender marker for their drivers’ licenses and state IDs, and the District of Columbia, California and Washington soon followed suit. If they can do it, why can’t the U.S. State Department?”

In the lawsuit argued today in the U.S. District Court for the District of Colorado, Lambda Legal asserts that the State Department is violating the due process and equal protection components of the Fifth Amendment to the U.S. Constitution by denying Dana the ability to travel freely, and by compelling Dana to lie about who they are on the passport application form.

“The State Department’s denials are preventing me from doing my job and advocating for the rights of intersex people around the world. The agency’s refusal to issue me a passport has already cost me opportunities in Mexico City and Amsterdam,” said Zzyym, who serves as associate director of the Intersex Campaign for Equality. “I’m not going to lie on my passport application, and I shouldn’t have to.”

Background

Dana Zzyym, who uses the gender-neutral pronouns “they,” “them” and “their,” was born with ambiguous sex characteristics. Shortly after Dana’s birth, their parents and doctor decided to raise them as a boy. As a result, Dana underwent several irreversible, painful and medically unnecessary surgeries that didn’t work, traumatized Dana and left them with severe scarring.

Many years later, after serving six years in the U.S. Navy and then attending Colorado State University, Dana began researching surgeries and came to understand they had been born intersex. Drawing on personal experience, they began educating the public about issues facing intersex people. Dana currently serves as associate director for Intersex Campaign for Equality (also known as the United States affiliate of the Organisation Intersex International (OII-USA)).

As part of their work, Dana was invited to attend the International Intersex Forum in Mexico City in October, 2014, at which time Dana applied for a U.S. passport. The application requires that the applicant select a gender marker of either ‘male’ or ‘female.’ It also requires first-time applicants to submit evidence of citizenship, such as a birth certificate, which in Dana’s case lists their sex as “unknown.” Notwithstanding the information on their birth certificate and the fact that Dana’s doctors with the U.S. Department of Veterans Affairs confirm their gender as intersex, Dana’s application for a passport was denied.

In October, 2015, Lambda Legal filed a lawsuit in the U.S. District Court for the District of Colorado, asserting that the U.S. State Department violated the due process and equal protection components of the Fifth Amendment to the U.S. Constitution, as well as the federal Administrative Procedure Act, by denying Dana a passport that accurately reflects their gender. The Court issued its ruling in favor of Zzyym on November 22, 2016.

At least ten countries issue passports with gender markers other than “F” (female) or “M” (male), including Australia, Bangladesh, Canada, Denmark, Germany, India, Malta, Nepal, New Zealand and Pakistan. Most countries that offer a third marker in the sex field on passports use “X”—an unspecified gender-neutral option—because it is recognized by the International Civil Aviation Organization (ICAO), a United Nations agency that sets forth international travel document standards.

Read more about the lawsuit, Zzyym v. Pompeo, here: https://www.lambdalegal.org/in-court/cases/co_zzyym-v-tillerson

For more information about intersex issues, visit http://www.lambdalegal.org/blog/20151026_intersex-101.

For more information about The Intersex Campaign for Equality, visit https://www.intersexequality.com/

Handling the case for Lambda Legal are Paul D. Castillo, Demoya Gordon, Dru Levasseur, and Camilla B. Taylor, joined by pro-bono co-counsel Michael A. Ponto, Emily E. Chow, and Bryan L. Lynch of Faegre Baker Daniels LLP.