Zzyym, the associate director of the Intersex Campaign for Equality, first applied for a passport in 2014 while planning to attend a conference in Mexico City. After filing the necessary paperwork, their application was denied when the State Department refused to let Zzyym use the gender marker “X” on their passport. Zzyym is intersex, and just like all the millions of American men and women with “M” and “F” printed on their passports, they wanted their official state documentation to reflect that. “This is who I am,” Zzyym told the Los Angeles Times in 2014. “This is how I was born. Many people are able to get their passports with their biological sex, and I should be allowed to do the same thing.”
Without a passport, the Colorado resident was unable to travel internationally, which has significantly limited their ability to work, since they are unable to attend international engagements or take part in global advocacy.
Zzyym has since taken legal action to obtain the proper documentation, the latest round of which picked back up again on Tuesday morning, when Zzyym’s legal team attended a hearing at the U.S. District Court for the District of Colorado. This same court had previously ruled in Zzzym’s favor, finding that there was “no evidence that the [State] Department followed a rational decision-making process in deciding to implement its binary-only gender passport policy.” The State Department nevertheless issued another denial.
In court Tuesday morning, Zzzym’s lawyer argued that the State Department’s refusal to issue a passport with a neutral gender marker violated Zzyym’s constitutional rights under the Fifth Amendment, which guarantees due process should the government attempt to deprive a person of “life, liberty, or property,” promises equal protection under the law, and provides the central conceit of the excellent if bonkers-inaccurate Ashley Judd film Double Jeopardy.
Beyond what they wanted, Zzyym also feared that claiming a male or female gender marker on their passport would have left them vulnerable to charges of perjury, Paul Castillo, the senior attorney in the South Central Regional Office of Lambda Legal who is representing Zzyym in court, tells Jezebel. Zzyym’s birth certificate, the first form of state documentation they received, lists their sex as neither male nor female but “unknown.”
“The government is not in the business of telling people who they are. You can’t tell a person that they must bear, for example, a female gender marker when they are male and vice-versa. The government should not be making people lie about their core identity,” says Castillo. “The [U.S. District Court] judge found the fact that some states are moving towards having neutral gender markers, such as ‘X,’ compelling evidence that it wouldn’t be difficult for the State Department to implement [these markers] on passports as well.”
Over the past few years, states like Oregon, Washington, and California have begun to legally recognize non-binary genders on state documents like birth certificates and drivers licenses. The District of Columbia has, too, as have India, Canada, and a handful of other countries. “I hope those who use [neutral gender marker] X as an identifier will feel an element of comfort moving forward,” Oregon Transportation Commissioner Sean O’Hollaren told The Oregonian after the state added a third gender option to driver’s licenses in 2017. “It’s something we should do because it’s the right thing to do.”
Should the district court judge rule in Zzyym’s favor, the State Department will have two choices: Issue them a gender-affirming passport, and thus provide a model for other non-binary citizens to obtain a gender-affirming passport of their own, or contest the decision in the 10th Circuit Court of Appeals. Should the district court judge rule against Zzyym, Castillo says that Zzyym’s legal team will appeal to the 10th Circuit Court. “I’m doing the right thing, I’m doing it for me, and now I’m also doing it for a lot of other people,” Zzyym said outside the courthouse on Tuesday, as reported by NBC affiliate 9News.
There is no telling how long this decision will take, although, Castillo says, the State Department “can determine whether or not to put an end to this protracted litigation” at any time. “It’s not that difficult,” he continued. “Other countries have done it. Other states are moving towards it. Cost and feasibility are not sufficient excuses to deny a person like Dana the fundamental right to leave the country as they wish.”