A federal appeals court has ordered the State Department to reprocess the passport application of a former sailor and intersex activist who was denied a nonbinary passport with an "X" gender marker instead of the traditional "M" or "F."
The majority of reasons the State Department provided for denying Dana Zzyym's request were invalid, the 10th U.S. Circuit Court of Appeals in Denver ruled, and it instructed the agency to reprocess Zzyym's application.
"We conclude that the State Department acted within its authority but exercised this authority in an arbitrary and capricious manner," the court said in Tuesday's ruling.
While ordering a new review of Zzyym's application, the court simultaneously overturned a 2018 district court ruling in Zzyym's favor that found that the State Department exceeded its authority in denying the passport.
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Zzyym identifies as gender nonbinary, neither exclusively female nor male, and uses they/them pronouns.
Born in 1958 and raised as a boy, Zzyym discovered later in life that they had in fact been born with ambiguous external genitalia, today commonly referred to as being born with intersex traits. Doctors performed nonconsensual genital surgery on Zzyym as a minor, an increasingly controversial practice that left them scarred.
In 2014, Zzyym first applied for a passport with a nonbinary gender marker of "X," which should reflect their official birth certificate. Zzyym's birth certificate is marked "unknown." After Zzyym's application was denied, they sued Secretary of State John Kerry, according to Lambda Legal, the LGBTQ legal organization that is representing Zzyym. The case has been making its way through the court system since then.
"I started the process to get an accurate passport," Zzyym said in a statement shared Wednesday by Lambda Legal. "In those five years, I've been invited to present at several international conferences on issues confronting intersex individuals. I've been unable to attend, because I don't have an accurate passport."
Zzyym called Tuesday's ruling "disappointing" because their passport application has yet to be approved but said they are "not deterred."
"I knew this would be a long battle, and I'm ready to continue the fight," Zzyym said.
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Lambda Legal counsel Paul D. Castillo said in a news release: "While we may have wanted a more definitive ruling from the Tenth Circuit, the court recognized that treating every applicant as male or female is inconsistent with its own goal to issue an accurate identity document. The court wants the State Department — for the third time — to reconsider Dana's passport application, so we continue our battle."
With the ruling, Castillo said, the court is essentially resetting the case by giving the State Department yet another chance to process the passport application without essentially forcing Zzyym to commit perjury with a factually inaccurate declaration — that they are either male or female — on the application.
While the ruling represents further delay for Zzyym, Castillo said he was encouraged by what Judge Robert Bacharach wrote for the court: that Zzyym's intersex traits should be reflected accurately in their identity documents.
"The State Department acknowledges that some individuals are born neither male nor female. Forcing these individuals to pick a gender thus injects inaccuracy into the data," he wrote. "A chef might label a jar of salt a jar of sugar, but the label does not make the salt any sweeter. Nor does requiring intersex people to mark 'male' or 'female' on an application make the passport any more accurate."
Rep. Ro Khanna, D-Calif., author of the Gender Inclusive Passport Act, a bill in Congress that would add "X" to the "M" and "F" options for passports, said that while "anything short of a clear directive to the State Department is disappointing, it's encouraging that the Tenth Circuit acknowledged that offering only two gender options on identifying documents is inherently inaccurate."
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In 2016, NBC News reported that Sarah Kelly Keenan was the first American known to obtain a birth certificate reflecting that she was born intersex.
"Not all intersex people will choose to identify legally as intersex," Keenan said at the time, "and not all parents will choose to have their intersex child identified as intersex on birth documents. But for those who do, the option must exist."
Since 2016, when Keenan first obtained a nonbinary birth certificate, more jurisdictions have moved to allow individuals to obtain birth and identity documents with gender markers other than male or female. The growing number of people with nonbinary identity documents, Castillo told NBC News, might complicate any future State Department claims that those individuals' travel documents are accurate if they are forced to choose between the two options of "M" or "F" when applying for a passport.
