As Zzyym identifies as neither — preferring to use the pronoun “they ” — Zzyym wrote “X,” along with an explanation simply reading, “I am not male or female.”
“While the Department does accept a medical certification of an applicant’s transition from one of these two sexes to the other, the Department is unaware of generally accepted medical standards for diagnosing and evaluating a transition to any sex other than male or female,” the State Department wrote in a letter denying Zzyym’s latest passport application.
On Tuesday, a federal-district court in Denver granted a motion to reopen Zzyym’s case, which is being handled by Lamda Legal Defense and Education Fund. With the case reopened, the State Department will be asked to submit new information and documentation that reveals reasoning behind its decision to deny Zzyym’s latest application. The judge will review the constitutionality of the State Department policy of refusing to grant passports to intersex people, which could result in that policy being forcibly changed.
Aside from having the cost of litigation covered, Zzyym is not seeking further damages from the State Department.
Reached by email, a State Department official told The Washington Post that the agency does “not comment on pending litigation.”
Lambda Legal Counsel Paul Castillo told The Post that the State Department has not explained why it refused to provide Zzyym with a passport, noting that Zzyym hopes to travel abroad to continue their work as the Associate Director of The Intersex Campaign for Equality.
“It’s not hard to place a gender marker on the passport that accurately reflects who they are,” Castillo added. “Many countries have adopted an ‘X’ marker other than male or female, and we have states considering moving forward.
“Oregon has already adopted a third gender marker with respect to drivers licenses and state IDs. Forcing Dana to lie about who they are is not the answer.”
Multiple countries already issue passports that don’t rely on binary gender markers, including Australia, India, Malta, Nepal and New Zealand, according to Vox.
Many countries that offer a third gender marker on their passport use the nonspecific “X” gender, which is recognized by the International Civil Aviation Organization (ICAO), a United Nations agency that sets forth international travel document standards, according to Lambda Legal.
According to a court brief filed on Monday, Zzyym has given the State Department multiple letters from physicians at the Department of Veterans Affairs. Those letters confirm that Zzyym is intersex, the brief notes, but the State Department has yet to recognize the documentation.
“My work as an advocate for the intersex community is incredibly important to me, and I’m unable to do my job because I don’t have a passport,” Zzyym said, according to Lamda Legal. “The State Department is in effect forcing me to lie about who I am, and I’m not going to do that. No one should be forced to lie about who they are.”
“Intersex” is a general term that is used to describe a number of conditions in which a person is born with a reproductive or sexual anatomy that falls outside binary definitions of gender, according to the Intersex Society of North America. If Zzyym’s case is successful, Castillo said, it would allow people who identify as intersex to present themselves authentically on government documentation, leading to wider acceptance and understanding.
In 2015, Lamda Legal filed a federal discrimination lawsuit against the State Department on Zzyym’s behalf accusing the department of violating the Due Process and Equal Protection clauses of the U.S. Constitution, as well as the federal Administrative Procedure Act.
In 2016, the court ruled in favor of Zzyym finding that the State Department violated federal law and ordered the agency to reconsider its decision. The State Department again denied Zzyym’s application seven months later.
“The State Department’s decision leaves a U.S. Navy Veteran and a U.S. citizen without a way to leave the country,” Castillo said.
“It’s particularly difficult for Dana to accomplish their advocacy and work across the country when they themselves are subject to discrimination and remain unable to travel outside the country,” he added. “Dana has not only advocated for intersex people, but they served our country to protect the Constitution, and yet, the federal government says Dana is not worthy of being recognized for who they are.”
Born as a hermaphrodite, Dana underwent several irreversible, traumatizing surgeries as a child that left their body “with severe scarring” and their sex organs nonfunctioning and ambiguous, according to Lamda Legal. Years later — after a six-year stint in the U.S. Navy and time at Colorado State University — Dana concluded that they had been born intersex.
“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.”
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, The Washington Post’s Travis M. Andrews wrote in July, 2016.
So Zzyym applied for a passport in Colorado, which was denied, forming the basis of their ongoing legal dispute.
“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 last year’s hearing, U.S. District Judge R. Brooke Jackson at times seemed exasperated by the government’s defense, according to the Associated Press.
“I find that the administrative record contains no evidence that the Department followed a rational decision-making process in deciding to implement its binary-only gender passport policy,” Jackson later wrote. “Therefore, the proper next step is to remand the case to the Department to give it an opportunity either to shore up the record, if it can, or reconsider its policy.”