Federal judge rules that State Department cannot reject an intersex person’s passport

Dana Zzyym

Dana Zzyym AP Photo/David Zalubowski

A judge ruled that the State Department cannot reject an intersex person’s passport application just because they don’t identify as male or female.

In 2014, Dana Zzyym applied for a passport to attend the International Intersex Forum in Mexico City, but was denied because they declined to identify as either male or female. They felt that would be “untruthful.”

U.S. District Judge R. Brooke Jackson agreed with Zzyym.

“Adherence to a series of internal policies that do not contemplate the existence of intersex people is not good reason” to deny someone a passport, Jackson wrote in the decision.

This is the second time Zzyym won a court ruling. In 2016, Jackson ordered the State Department to reconsider its binary-only passport policy.

The department refused to do so, so now Jackson has ruled against the policy.

Related: Federal judge intervenes on behalf of intersex citizen denied U.S. passport

While the ruling doesn’t force the State Department to issue a passport, but the department provided no other reason to deny Zzyym a passport.

“The agency’s refusal to issue me a passport has already cost me opportunities in Mexico City and Amsterdam,” said Zzyym, who works for the Intersex Campaign for Equality. “I’m not going to lie on my passport application, I shouldn’t have to, and the judge here, twice, has agreed with me.”

Zzyym was born intersex. At a young age, they were forced to undergo a series of surgeries to construct male genitalia, and their birth certificate was changed to identify them as male.

They joined the military but chose not to reenlist in 1984 when they thought that they were a gay man. In 2009 a urologist with Veterans Affairs confirmed that they were intersex, something that their parents never told them.

In 2012, they got their birth certificate changed to remove the gender marker. They started working with the Intersex Campaign for Equality, but in 2014 they were denied a passport to attend a forum in Mexico because of the State Department’s refusal to issue a passport.

“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 of Lambda Legal, which 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

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