We are deeply grateful to California Representative Ro Khanna for introducing legislation today, which we are proud to have worked with his office on, that would allow non-binary U.S. citizens to be recognized with an X instead of an M or an F on passports. One of our founding missions–along with ending the practice of subjecting intersex infants and minors to medically unnecessary surgeries which aim to make them typically male or female–is to attain legal gender recognition for intersex adults who do not feel accurately represented by male or female markers.

We believe that adults paving the way for this recognition is critical to ending human rights abuses against intersex people. It creates a world in which parents of intersex children who wish to love them and leave them as-is, know that if their children grow up to be neither boys/men nor girls/women there will be a legally recognized place for them. As we have seen, some intersex children whose parents did not subject them to this innately discriminatory practice are growing up to feel and identify as non-binary, as our E.D. Hida Viloria experienced.

As Viloria stated in the press release by Congressman Khanna’s office:
“Intersex and non-binary people exist, as numerous cultures have always acknowledged and twenty-three U.S. states do today. Yet we’re targets of discrimination–such as being subjected, as infants, to irreversible, medically unnecessary surgeries that aim to make intersex people male or female–because our society only recognizes male or female citizens. Many intersex and non-binary people want to accurately identify ourselves on federal documents, like the vast majority of people who can easily check male or female do, and allowing us to do so simply upholds our nation’s goal of equality for all citizens.”

Viloria has openly identified as non-binary as well as intersex for over two decades, as seen in the 1999 documentary Gendernauts., in which they speak about feeling neither male nor female but somewhere in “the middle ground.” As detailed in their memoir Born Both: An Intersex Life (Hachette Books), Viloria struggled for years in a culture which wanted them to choose between being a man or a woman–until they fully embraced their identity despite the fact that it remained misunderstood, stigmatized and nameless at the time. Over the years, terms for this gender identity–“genderqueer” and later, “non-binary”–emerged, and the community grew, but the legal erasure remained.

Enter Associate Director Dana Zzyym, whom is also both intersex and non-binary. Zzyym is the first American to legally pursue a non-binary passport, represented by Lambda Legal. They filed their groundbreaking lawsuit to obtain a passport that accurately recognizes them as neither male nor female on Intersex Awareness Day, October 26, 2015. Viloria and Zzyym consulted Lambda Legal staff that the X was intentional in order to work in solidarity with non-binary people who are not intersex born, to avoid making it harder for them to get a third gender marker. The Colorado state federal court ruled in Zzyym’s favor in September, 2018, but the State Department refused to grant Dana a passport.

Zzyym’s battle for equal gender recognition is outlined in The Washington Post article yesterday about today’s announcement of the new bill, which features Zzyym prominently.

Dana’s lawsuit inspired others to seek non-binary recognition statewide, such as our colleague Sara Kelly Keenan, also intersex and non-binary, who became the nation’s first legally recognized non-binary U.S. citizen, in the state of California in 2016. (Note: Oregon’s Jaime Shupe was originally cited as such, obtaining recognition in Oregon several months prior, but has since recanted and said he is a male born man.) You can listen to Keenan speaking about that and on being the recipient of the nation’s first intersex birth certificate in a 39 minute podcast here..

Many others began seeking third gender recognition and today, 23 states and the District of Columbia (Washington DC) recognize non-binary people on identity documents. Nevertheless, last month, in the Tenth District Court of Appeals, the attorney for the State Department repeated its position last month that they will grant Zzyym a passport only if they choose “either” M or F as their gender marker. Dana refuses to do so as it would be a lie, as evidenced by numerous doctors including those in the government’s own Veterans Administration Department which attest that Zzyym is neither male nor female but intersex.

Thus Zzyym, a Navy Veteran, has been denied their ability to leave the country for five years as of this October–a right guaranteed to all citizens by the U.S. Constitution–because they will not lie on a federal form, which is a felony. Zzyym has sacrificed their own ability to leave the Unites States in order to fight for what we all deserve: the right to be recognized as who we are. We are enormously proud of Dana, and grateful for their indomitable strength and commitment as an intersex and non-binary human rights activist.

As Representative Khanna said in his office’s press release:
“Respecting every American’s gender must extend to travel abroad. The freedom to move and express yourself no matter what should be guaranteed in this country. My wholehearted gratitude to Gerri Cannon for laying the groundwork for this bill in New Hampshire, as well as the numerous groups and activists who have molded this bill into the most accessible option for gender non-conforming Americans. Everyone in this country should have the freedom to express their preferred gender on passports.”

Read the full bill text here.

* * *

https://khanna.house.gov/media/press-releases/release-rep-khanna-introduces-legislation-add-third-gender-us-passports

https://khanna.house.gov/sites/khanna.house.gov/files/Gender%20Inclusive%20Passport%20Act%20%28text%29%5B1%5D.pdf