April 6, 2016 at 12:46 pm EDT | by Michael K. Lavers
State Department seeks dismissal of intersex passport lawsuit

Dana Alix Zzyym, gay news, Washington Blade

Dana Alix Zzyym (Photo courtesy of Lambda Legal)

The State Department has asked a federal court to dismiss an intersex person’s lawsuit over the denial of a passport because they do not identity as male or female.

A 26-page motion that the State Department filed in U.S. District Court for the District of Colorado on March 18 rejects Dana Alix Zzyym’s claim that the decision not to list their sex as ‘X’ on their passport was “arbitrary and capricious.”

“In order to ensure the integrity of U.S. passports as proof of identity and citizenship, the department has created passport application forms that applicants must complete before they can receive a passport,” reads the motion. “The forms require an applicant to provide information regarding his or her identity, including whether the applicant is male or female.”

“Information regarding whether an individual is male or female is part of that identity, and is commonly used in documents that, like passports, serve as forms of identification for their bearers,” it says. “Requiring passport applicants to include whether they are male or female is a reasonable part of the department’s process for confirming the identity of the applicant and ensuring the integrity of the passports it issues.”

The State Department rejects Zzyym’s claim that the Passport Act of 1926 does not authorize it to “refuse to issue a passport unless and until the applicant accepts either a male or female gender marker inconsistent with that person’s gender identity.” It also dismisses the allegation that the decision to deny Zzyym a passport violated their right to due process under the 5th Amendment.

State Department ‘unable to fulfill’ request to list sex as ‘X’

Zzyym, a resident of Fort Collins, Colo., who is the associate director of the U.S. affiliate of the Organization Intersex International, applied for a passport in 2014 in order to travel to Mexico City for a conference.

The State Department told Zzyym in a Sept. 24, 2014, letter that it denied the application because it was “unable to fulfill your request to list your sex as ‘X.’

Zzyym on Dec. 19, 2014, provided additional documentation to the Colorado Passport Agency for the State Department to prove their intersex identity. The second application was denied less than two weeks later.

Lambda Legal filed the lawsuit against the State Department on behalf of Zzyym last October.

“When I was a child, I had no say in what was done to me in order to make me ‘fit’ in some acceptable category,” said Zzyym in a press release that announced the lawsuit. “I continue to suffer the consequences of those decisions today. But, as an adult, I can take a stand. I am not male, I am not female, I am intersex, and I shouldn’t have to choose a gender marker for my official U.S. identity document that isn’t me.”

A Lambda Legal spokesperson on Wednesday declined to comment on the State Department’s motion. The deadline to file briefs with the court in the case is April 22.

Australia, India and New Zealand are among the countries that issue passports without gender markers. The International Civil Aviation Organization, a U.N. agency that establishes standards for international travel documents, recognizes the “X” gender marker.

Michael K. Lavers is the international news editor of the Washington Blade. Follow Michael

6 Comments
  • Now which bathroom do they get to use? We should ask Mayor Bowser for her guidance.

  • The problem is that Intersex people, neither male nor female, have to lie to get a passport. But since that’s knowingly providing false information, if they do that they commit a serious criminal offence, one incurring serious jail time. And will be denied a passport anyway due to the false information on the form.

    This exact situation is what led to passport law Reform in Australia, which now allows M/F/X in accordance with the international regulations on passports that were agreed to in 1945.

  • Why not identify as a human being? A human being that can think, read, learn, write, teach, etc. What difference does the gender make? None, as we are learning more and more about humanity and the animal kingdom which has variations of genders as well.

  • *headdesk* Uh, State Department? Your saying only those who are male or female can apply for a passport and you shot yourself in the foot with your statement. Freaking idiots.

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