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Passports Can't Be Denied Over Refusal to Select a Gender

US Passport
By Lisa M. Schaffer, Esq. on September 21, 2018 1:58 PM

The U.S. District Court in Denver, Colorado issued a major win for intersex people. Put a "W" in the "X" column! Though the judge in the case stated the ruling was particular to the case at hand, it will still serve as a powerful message that the United States may be ready to join other developed countries in the adoption of gender designation and identification.

Navy Veteran Denied Passport for Refusing to Check Gender Box

Dana Alix Zzyym was born Brian Orin Whitney in 1958, with ambiguous physical sexual characteristics, and identifies as nonbinary in gender. Zzyym applied to the State Department for a passport, and requested an "X" as a gender marker, which is consistent with some international and state protocols. The State Department refused to issue Zzyym, who is a Navy veteran, a passport because neither the Male nor Female box had been checked. Zzyym was left no other choice but to sue the State Department to receive a passport.

According the denial letter Zzyym received in 2015, though the State Department does accept changes to passports based on transitions from one gender to another, they are unaware of "generally accepted medical standards for diagnosing and evaluating a transition to any sex other than male or female." The State Department believed that refusing to provide Zzyym with a passport was acceptable because U.S. citizens don't have a fundamental right to international travel, and that the passport is not a matter of self-expression, protected under the First Amendment. The Department further stated that allowing a third variable, such as "X," would "undermine the purpose of the passport" and add insurmountable and unjustifiable costs.

State Department's "Stubbornness" Deemed "Arbitrary and Capricious"

Federal District Court Judge R. Brooke Jackson, felt both sides were being "stubborn" when Jackson first heard the case in 2016. The judge asked the State Department to reconsider. Zzyym re-applied, again with the "X" request, feeling anything else would be untruthful. And again, in 2017, the department rejected Zzyym's application, and the case came back to Jackson's courtroom. There, the judge dismissed the department's explanation that an "X" would complicate the process of verifying an applicant's identity and determination of eligibility based on federal, state and local databases, calling the justification "arbitrary and capricious." Jackson stated that "adherence to a series of internal policies that do not contemplate the existence of intersex people is not good reason."

The judge stopped shy of forcing the State Department to issue Zzyym a passport immediately, and did state this only applied to Zzyym. However, others are calling it a ground-breaking decision in the intersex and nonbinary arena.

If you or someone you love is experiencing passport issues, or other forms of discrimination based on gender identification, contact a local civil rights attorney. The laws in this field are changing rapidly, and a legal advisor can review the facts of your case, apply the most recent laws, and offer you helpful legal advice.

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