Lambda Legal Urges Tenth Circuit to Uphold Ruling in Favor of Intersex Vet Seeking Accurate Passport

By Lambda Legal
JANUARY 22, 2020

IC4E Assoc. Director Dana Zzyym (center, turquoise shirt) with lead attorney Paul Castillo, of Lambda Legal (left), IC4E Founding Director Hida Viloria (right), and Lambda Legal staff on the steps of Colorado’s Tenth District Court..

Lambda Legal today appeared before the U.S. Court of Appeals for the Tenth Circuit to urge the court to uphold a district court ruling that the State Department cannot rely on its male-or-female-only gender policy to withhold a U.S. passport from Dana Zzyym, a U.S. Navy veteran who is intersex and nonbinary, and does not identify as male or female.

“We appeared before the Tenth Circuit today to urge the court not to permit the State Department to force a U.S. Navy veteran to lie on their passport application,” Lambda Legal Counsel Paul D. Castillo said. “Dana Zzyym just wants an accurate passport, an essential identity document that accurately reflects who they are. Yet, the State Department seems to be urging Dana to lie in order to exercise their right to travel.”

In September 2018, a U.S. District Court judge ruled for the second time against the U.S. State Department, finding that the agency violated the federal Administrative Procedure Act in denying Dana Zzyym a passport. In its ruling, the court stated that, “The authority to issue passports … does not include the authority to deny an applicant on grounds pertinent to basic identity[.]” The State Department then appealed to the Tenth Circuit.

“It’s been about five years since I started the process to get an accurate passport,” Zzyym said. “In those five years, I’ve been invited to present at several international conferences on issues confronting intersex individuals. Ironically, it is precisely the discrimination intersex and nonbinary people face that prevents me from attending these conferences. Nearly a dozen countries allow their citizens to use gender markers other than M and F for their passports. And individuals traveling on those passports are able to enter the United States. It makes no sense that the State Department continues to insist that I carry passport that doesn’t reflect who I am.”

Dana Zzyym, who uses the gender-neutral pronouns “they,” “them” and “their,” was born with ambiguous sex characteristics. After their parents decided to raise them as a boy, Dana underwent several irreversible, painful and medically unnecessary surgeries that didn’t work, traumatized Dana and left them with severe scarring. Many years later, after serving six years in the U.S. Navy and then attending Colorado State University, Dana began researching surgeries and came to understand they had been born intersex.

Dana currently serves as associate director for Intersex Campaign for Equality. As part of their work, Dana has been invited to attend several international intersex conferences. However, they have been unable to attend because they do not have a valid passport. The passport application requires that the applicant select a gender marker of either ‘male’ or ‘female.’ It also requires first-time applicants to submit evidence of citizenship, such as a birth certificate, which in Dana’s case lists their sex as “unknown.” Notwithstanding the information on their birth certificate and the fact that Dana’s doctors with the U.S. Department of Veterans Affairs confirm Dana was born with intersex traits, Dana’s application for a passport has been denied.

In October 2015, Lambda Legal filed a lawsuit in the U.S. District Court for the District of Colorado, asserting that the U.S. State Department violated the federal Administrative Procedure Act, among other claims, by denying Dana a passport that accurately reflects their gender. The Court issued its rulings in favor of Zzyym on November 22, 2016, and on September 19, 2018.

Many states and at least ten countries issue passports with gender markers other than “F” (female) or “M” (male), including Australia, Bangladesh, Canada, Denmark, Germany, India, Malta, Nepal, New Zealand and Pakistan. Most countries that offer a third marker in the sex field on passports use “X,” a gender marker option that is recognized by the International Civil Aviation Organization (ICAO), a United Nations agency that sets forth international travel document standards.

The Intersex Campaign for Equality and its Founding Director, Hida Viloria, played a critical role in bringing Dana’s case forward.

Handling the case for Lambda Legal are Paul D. Castillo, Camilla B. Taylor, and Puneet Cheema, joined by pro-bono co-counsel Emily E. Chow, Ann E. Prouty, and Rory F. Collins of Faegre Baker Daniels LLP.