A federal judge recently ruled that the U.S. State Department must issue a passport with a non-binary gender marker of “X” to an intersex Colorado veteran named Dana Alix Zzyym.
As we reported earlier, in 2014, Zzyym applied for a passport to attend the International Intersex Forum in Mexico City, but they were denied because they declined to identify as either male or female. Instead, they wrote “intersex” as their gender—they felt answering otherwise would be “untruthful.”
Zzyym’s driver’s license listed them as female, and the U.S. Department of State initially said they could either list Zzyym’s gender as “female” or as “male” if a doctor issued a letter confirming Zzyym’s “new gender,” but not anything else.
Instead, Zzyym appealed the decision with two sworn affidavits from physicians at the U.S. Department of Veterans Affairs Medical Center affirming Zzyym’s intersexuality. (Dana served in the Navy.) And yet the State Department still refused to issue the gender-neutral passport.
Zzyym sued and in 2016, a U.S. District Court judge ordered the State Department to either change or justify its binary-only policy. When the State Department offered its reasoning for refusing Zzyym a gender-neutral-passport, Zzyym challenged their reasoning again in court with the help of Lambda Legal, and won again in 2018.
At that time, the judge in both cases pointed out that the government had rejected medical proof of Zzyym’s non-binary gender (the physician affidavits) and offered no rationale for their refusal beyond saying that it never had never been done before.
The judge also said the government’s claim that Zzyym’s passport needed to match their other ID documents made no sense seeing as the department had offered to change Zzyym’s passport gender marker from “F” to “M” even though Zzyym’s other documents list them as female.
Additionally, the State Department said passport-reading technology could only read “M” and “F” gender markers. Updating the technology would reportedly “take approximately 24 months and cost $11 million,” and even if a one-off passport was created for Zzyym in under four weeks, Zzyym might be still be stopped for additional questioning by passport authorities who didn’t know what an “X” gender marker meant.
But the judge dismissed this last point as speculative and wrote, “If the Department concludes that issuing a single passport to Dana even with appropriate notice will undermine the system of international travel as we know it, it can comply with the judgment by updating its software systems.”
After the second ruling, the State Department requested a stay of the decision saying that the costs would irreparably harm its office. The same court judge denied that stay, writing, “If the Department chooses to pursue the first option of updating their software systems, economic loss does not, in and of itself, constitute irreparable harm.”
Legal precedent defines irreparable harm as “so severe as to ‘cause extreme hardship to the business’ or threaten its very existence.”
The judge continued, “While this may be a difficult choice for the Department, it is not an impossible choice.”
The judge wrote that $11 million it would cost to update passport reading technology only represents .03 percent of the Department of State’s annual budget. The Department counter by saying that it represents 4.7% of the annual budget of the Office of Consular Systems and Technology who develop passport reading technology. As such, the judge concluded that the expense wouldn’t prevent either office from existing or fulfilling their other civic responsibilities.
The State Department will likely not comply with the ruling, leaving the case open to a possible future U.S. Supreme Court ruling which could affect the estimated 5,515,811 intersex Americans and their ability to travel.
Intersex individuals are born with any combination of chromosomal, gonadal, hormonal, genital and other physical sexual characteristics that are between the usual cis-male or -female traits. Right now at least 10 other countries offer gender-neutral passports.