Dana Zzyym would consider it a lie to select either male or female on a U.S. passport application. But thanks to a recent district court ruling that could have enormous consequences for non-binary people, Zzyym is one step closer to getting an “X” instead.
The intersex rights advocate is also non-binary, meaning that their gender identity is something other than strictly male or female.
But four years ago, when Zzyym wrote down “intersex” on their passport form instead of checking either a “male” or “female” box, the State Department said no—so Zzyym and the LGBT advocacy group Lambda Legal sued, arguing that Zzyym couldn’t be refused the opportunity to travel internationally just because the State Department does not yet recognize genders other than male or female.
After a lengthy court battle spanning the tenures of three secretaries of state—John Kerry, Rex Tillerson, and now Mike Pompeo—U.S. District Judge R. Brooke Jackson ruled again in favor of Zzyym on Sept. 19, calling the State Department’s decision to deny Zzyym a passport “arbitrary and capricious” and debunking point-by-point the arguments the federal agency has used so far.
“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 in his landmark ruling, which concluded with an order that the Department cannot cite its “binary-only gender marker policy to withhold the requested passport from Dana.”
In other words, the State Department now has 60 days to either appeal the decision or give Zzyym a passport more reflective of their identity.
Asked by The Daily Beast whether or not an appeal would be forthcoming, a State Department spokesperson said, “We are reviewing the decision and consulting with the Department of Justice, who represents the Department of State in this case, on next steps.”
On the other hand, even as other federal agencies have rolled back protections, the State Department has continued to allow binary transgender people to change their passport gender markers from “M” to “F” or vice versa, despite recent confusing changes to the online instructions for that process.
If the State Department were to issue Zzyym a passport, that would almost certainly mean other intersex and non-binary people would be able to follow in their footsteps.
“The State Department has taken the position that they need a uniform policy that is consistent across the board,” Paul D. Castillo, senior attorney for Lambda Legal, told The Daily Beast. “They certainly have no appetite for their process to apply to only one person. What that means is that if they issue a passport with, say, an ‘X’ marker to Dana—in terms of their need for uniformity, I think it would clearly implicate changing the policy so other applicants can secure a gender marker other than male or female.”
The ripple effects of the first “X” passport would be felt across the country. Currently, only a handful of jurisdictions in the United States—mostly concentrated on the West Coast—allow for non-binary gender markers on documents like driver’s licenses and birth certificates.
Earlier this month, New York City joined their number. The issuing of passports with non-binary options would increase the pressure on states to expand the options on their own official documentation beyond “male” or “female.”
Internationally, some other countries have already set the precedent for federal-level recognition of non-binary genders. Canada, for example, has allowed the “X” gender marker on passports since August 2017.
Australia, as the country’s passport office notes on its website, allows three separate choices on passports: “M (male), F (female) or X (indeterminate / intersex / unspecified).”
Meanwhile, the State Department website flatly states on its FAQ, “No, the only sex markers available for a U.S. passport are male and female” in response to a question about the possibility of receiving a non-binary gender marker.
This is not new language—indeed, even though the Clinton-era State Department began allowing binary transgender people to change their gender markers without first undergoing sex reassignment surgery, the Obama administration never signaled willingness to allow any gender marker other than an “M” or an “F” to appear on a U.S. passport.
But the State Department earlier in September did briefly add—and then almost immediately delete—a paragraph that seemed to explain the agency’s stance on non-binary passports: “A U.S. passport does not list the bearer’s gender identity. The sex marker on your U.S. passport is based on your evidence of U.S. citizenship and identity, including a medical certification of sex change. The sex marker may not match the gender in which you identify.”
The distinction between here between sex and gender identity is one that Castillo and Lambda Legal have heard before over the course of the Zzyym case.
“They were trying to say that they don’t issue passports to transgender people based on a person’s gender identity, when in fact that’s inconsistent with what the gender policy is in practice,” Castillo told The Daily Beast of the mysterious vanishing paragraph on non-binary passport applicants.
In addition, Castillo says, the medical authority on transgender issues that the State Department acknowledges on its own website recognizes the validity of non-binary gender identity.
The State Department website for transgender passport applicants currently links out to the World Professional Association for Transgender Health. In November 2017, WPATH released a statement urging governments to allow options beyond male or female on official identity documents.
“WPATH recognizes that there is a spectrum of gender identities, and that choices of identity limited to Male or Female may be inadequate to reflect all gender identities,” the statement read. “An option of X, NB (non-binary), or Other (as examples) should be available for individuals who so choose.”
This discrepancy was not lost on Judge Jackson who wrote in his ruling that “by its own regulations, the Department relies upon a medical authority which plainly recognizes a third sex.”
The judge also pointed out in his ruling that the State Department website noted that WPATH was “recognized as the authority in this field by the American Medical Association.” Earlier this month, some of that language was removed. Now, the website simply states that WPATH “is recognized by” the AMA.
Summing up the evidence showing that sex and gender categories are not binary, Judge Jackson wrote that “the Department’s argument that the gender policy is necessary because there is no medically accepted consensus regarding a third sex is not rational and fails.”
That unprecedentedly strong language from a federal judge is cause for celebration in and of itself, Castillo noted. Even if the State Department continues to drag the Zzyym case out, a ruling like that could pay dividends in the future.
“Regardless of whether they appeal or not, I think this decision is very telling in the fact that this judge recognizes the existence of both intersex people and people who are non-binary—and [he] recognizes that there’s no justification or discriminating against a person and denying them their basic identity document and their ability to leave the country, simply for not wanting to lie on a passport application,” Castillo said.
Indeed, whether it takes 60 days or another four years, Zzymm says that they will never tell the State Department that they have a binary gender.
“I’m not going to lie on my passport application,” Zzymm said in a press statement. “I shouldn’t have to, and the judge here, twice, has agreed with me.”