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.