The passport application includes a section in which applicants check a box labeled “M” for male or “F” for female. As Zzyym identifies as neither, they wrote “X,” along with an explanation simply reading, “I am not male or female.”
The passport application was denied.
In response, Zzyym filed a lawsuit against Secretary of State John F. Kerry and the director of the Colorado Passport Agency in hopes of receiving a passport without having to list their gender as male or female.
Zzyym’s lawyer, Paul Castillo of the gay rights legal organization Lambda Legal Defense and Education Fund, told Reuters last year Zzyym isn’t seeking any monetary compensation, simply a policy change.
“Dana is being deprived of the right to lawfully exit the United States because of personal characteristics, and that’s discrimination, pure and simple,” Castillo said.
A hearing in the case was held Wednesday, during which a federal judge urged the State Department to give Zzyym a gender neutral passport, the Associated Press reported. The judge suggested he might issue an order forcing the government to do so, if it doesn’t voluntarily.
That simple moment of acceptance was a long time coming. For years, Zzyym didn’t accept — or even understand — what was happening.
Throughout Zzyym’s four tours, something didn’t feel right.
Something hadn’t felt quite right for a long, long time. Questions haunted Zzyym.
“I knew I was different from the beginning,” Zzyym wrote on Facebook. “I had no words for it.”
Zzyym’s genitalia was covered in permanent scar tissue and didn’t quite appear to be that of a male or a female. Furthermore, it didn’t function as a sexual organ.
More existentially, Zzyym — whose birth name was Brian Orin Whitney — didn’t feel like a male. Even when Zzyym chose not to reenlist in the Navy in 1984 because the organization placed great scrutiny on “his” sexual orientation, Zzyym knew it was deeper than that — Zzyym was not simply a gay man.
But, what was it?
Not until 1994 — 36 years after Zzyym’s birth in Michigan in 1958 — did the veteran come to understand that “male” wasn’t the designation that fit, according to the complaint. What followed was a name change to Dana Alix Zzyym.
But Zzyym still didn’t fully know what they were.
And it wasn’t until 2009 that a urologist at a Veterans Affairs hospital confirmed what Zzyym had long suspected — they weren’t born with a clear physiological sex, the complaint stated. Instead, Zzyym was born as a hermaphrodite, with ambiguous genitalia.
Doctors originally left the sex designation on their birth certificate blank, but Zzyym’s parents chose one for them: male.
By the time Zzyym was 5 years old, they had undergone several “normalization” surgeries in an attempt to give male genitalia to Zzyym.
“The surgeries immediately failed and caused permanent scarring and damage,” Zzyym’s complaint said. “None of the surgeries Dana underwent altered, or even fully disguised, Dana’s intersex nature.”
Adding to the physical pain was the emotional — their parents never told Zzyym about the birth certificate or the surgeries, leaving them to wonder what, exactly, they were.
The urologist at the VA hospital told Zzyym that an orchiectomy — the removal of one or both testicles — and other surgery could potentially relieve their chronic pain. Zzyym sought treatment through VA, but the department labeled the surgery a “transgender” procedure and wouldn’t pay for it, according to the complaint.
Zzyym had to seek treatment elsewhere, which they did.
Through all this Zzyym experimented with their gender identity and sexual orientation, trying to live as a male and a female, according to the complaint.
In 2011, years after Zzyym settled in Fort Collins, Colo., they embraced their intersex identity. In 2012, they managed to have their birth certificate amended from “male” to simply not listing a gender at all.
Questions surrounding Zzyym’s gender had long caused pain, both physical and emotional. Finally, though, they had found an identity — and a cause.
Zzyym is now the associate director for the United States affiliate of Organization Intersex International, a worldwide advocacy organization seeking equal rights for people who identify as intersex.
In 2014, Zzyym was invited to the International Intersex Forum in Mexico City to represent and vote on behalf of the organization’s U.S. chapter.
So Zzyym applied for a passport in Colorado.
But, because of Zzyym’s gender identity, they weren’t allowed to attend a forum about said gender identity.
The application rejection stated the State Department was “unable to fulfill your request to list your sex as ‘X'” and offered three choices: identify as male, female or pull the application.
Zzyym chose a fourth option and filed a lawsuit.
“This is who I am,” Zzyym told the Los Angeles Times. “This is how I was born. Many people are able to get their passports with their biological sex, and I should be allowed to do the same thing.”
During Wednesday’s hearing, U.S. District Judge R. Brooke Jackson at times seemed exasperated by the government’s defense, according to the Associated Press.
“A lot of things are changing in our world,” Jackson said.
Not many states — if any at all — offer a box on forms for applicants to check other than “male” or “female.” Arli Christian, a state policy counsel for the National Center for Transgender Equality, certainly doesn’t know of any, saying that it sometimes happens unofficially and on an individual basis.
“In terms of the assertion of non-binary identity, it has gotten a lot more attention recently, and legally speaking, the policies are catching up,” Christian told the Associated Press. “For the most accurate identification document, there should be a non-binary option.”
In court Wednesday, Trial Attorney of the Justice Department’s Civil Division Ryan Parker argued that creating more options apart from the traditional two genders could create security risks for the State Department, which, he said, relies heavily on state driver’s licenses and birth certificates.
Christian, who did not attend the hearing, disagreed, telling the Associated Press, “The idea that the gender marker on the passport is in any way tied to the state document is untrue.
There is some legal precedent for allowing an individual to identify as non-binary on important personal identification documents.
In what is widely considered to be the first decision of its kind in the state of Oregon, a judge ruled in June that 52-year-old Jamie Shupe can be legally considered non-binary, CNN reported.
The State Department has guidelines for issuing passports to transgender people who have either completed a gender transition or are in the process of transitioning genders. Still, it only allows applicants to choose between “male” or “female.” Some countries — Australia and New Zealand, among them — allow citizens to put a third option: “X,” according to the Associated Press.
Wednesday’s hearing occurred mere months after North Carolina’s law banning transgender people from using the bathroom that corresponds with their gender identity threw America into uproar. In response, several artists, including Bruce Springsteen, Ringo Starr and Pearl Jam, refused to play in the state.
The law finally led to North Carolina and the U.S. Justice Department filing dueling lawsuits against each other.
According to the Associated Press, Judge Jackson seemed to hope the State Department and Zzyym can work things out much more peacefully.