Forcing an intersex individual to choose male or female on a passport application is ruled “arbitrary and capricious.”

U.S. District Judge R. Brooke Jackson ordered the State Department to issue Colorado citizen Dana Zzyym a passport with intersex marked as the gender.

Born in 1958 as Brian Orin Whitney and born with “ambiguous external sex characteristics,” doctors were not able to decide if Whitney, who later switched names to Dana Zzyym, was a male or female and so left the gender line on their original birth certificate blank.

Shortly following Zzyym’s birth in 1958, their parents chose to carry out a corrective surgery that was deemed medically unnecessary. The operation was a failure. Zzyym’s sex gender could not be wholly changed to either male or female. They grew into a full adult, accepted their gender as intersex and adopted the plural pronoun.

“Arbitrary and Capricious” to Force a Binary Gender Choice

In 2015, the State Department denied Whitney a passport for writing “intersex” in the gender space, and so Zzyym sued. Zzyym’s lawsuit against the State Department said being denied a passport has cost him numerous economic opportunities at home and abroad.

Judge Jackson instructed the State Department to issue Zzyym with a passport and said intersex individuals must be allowed to write “X” in the space asking for their gender.

Judge Jackson in 2016 gave the State Department the chance to explain the rationale behind its binary-gender marker policy, but the department could not do this at a May hearing. Then in a recent 20-page opinion, Jackson ruled that the male-female-only gender policy of the department is “arbitrary and capricious under the Administrative Procedure Act and in excess of the department’s statutory authority.”

Judge Jackson ruled that requiring an intersex person to misrepresent their gender on important documents such as passports is a “perplexing way to serve the department’s goal of accuracy and integrity.”

Time to Recognize Non-binary Citizens

Paul Castillo, Zzyym’s legal representative and senior attorney at Lambda Legal, said it is time for Zzyym and all other intersex citizens of the United States to be acknowledged as they are.

“It is well past time for Dana Zzyym and other non-binary citizens of this country to be recognized and respected for who they are, to live openly and authentically, and to be able simply to travel freely about the world,” said Castillo. “Dana is intersex, and identifies as intersex and non-binary, but the U.S. Passport application did not allow them to identify themselves accurately.”

“In light of this ruling, we call on the State Department to promptly issue Dana this essential document that accurately reflects their gender,” Castillo added.

“I’m Not Going To Lie On My Passport Application; I Shouldn’t Have To” 

Since Zzyym filed his lawsuit in 2015, several states have provided intersex individuals with the opportunity to mark the letter “X” on driver’s licenses and other personal IDs.

“It’s been nearly four years since the State Department first denied me a critical identity document that I need to do my job and advocate for the rights of intersex people both in the United States and abroad. The agency’s refusal to issue me a passport has already cost me opportunities in Mexico City and Amsterdam,” said Zzyym in a statement. “I’m not going to lie on my passport application, I shouldn’t have to, and the judge here, twice, has agreed with me.”

Zzyym also asked Judge Jackson to compel the State Department to strike its binary-gender policy and issue passports marked with “X” to all intersex applicants, but the judge has refused.

Jackson ruled that Zzyym is the only plaintiff in the case, and any ruling will apply to him alone and not the general population of intersex individuals.