A federal court in Colorado ruled on Thursday that the State Department must issue an accurate passport for Dana Zzyym which recognizes them as neither male nor female. It would be the first such U.S. passport. Zzyym, a Navy veteran, is intersex and nonbinary and could not accurately choose between male or female on their passport application.
The State Department argued there was no tenable way to provide Zzyym with an accurate passport denoting their gender as “X.” To fully integrate the change into its software systems would “take approximately 24 months and cost $11 million,” whereas providing a one-off would undermine the consistency and reliability of U.S. passports and create additional screening hurdles for Zzyym.
But United States District Judge R. Brooke Jackson, an Obama appointee, was not compelled by the Department’s dilemma, denying a stay of his previous ruling. “If the Department concludes that issuing a single passport to Dana even with appropriate notice will undermine the system of international travel as we know it, it can comply with the judgment by updating its software systems,” he wrote. “While this may be a difficult choice for the Department, it is not an impossible choice. Complying with a judgment necessarily involves some harm to the party against whom a judgment is entered.”
The Department also argued that Zzyym should simply settle for an “M” or “F” passport, but Jackson has consistently ruled throughout the case that this will cause them harm. “Dana has missed travel opportunities for four years throughout the course of this litigation, and Dana would continue to miss travel opportunities if a stay is granted,” he concluded, having previously ruled twice in Zzyym’s favor.
Lambda Legal Counsel Paul Castillo praised the decision. “No law-abiding citizen should be precluded from leaving the country simply because of who they are,” he said in a statement.
Zzyym was previously one of the first Coloradans to obtain a driver’s license denoting their gender as “X,” thanks to a change the state made when they first started their passport fight. They were born with ambiguous sex characteristics and subjected to several irreversible and medically unnecessary surgeries, as many intersex infants are. Their birth certificate identifies their sex as “unknown” and their Veterans Affairs doctors recognize their gender as intersex, complicating the male/female limitations of the passport application.
While this would likely be the first nonbinary U.S. passport, at least ten other countries offer a third gender marker option, in most cases “X.” Additionally, U.S. air carriers recently announced that passengers will have nonbinary gender options when booking their tickets. “If they can do it, why can’t the U.S. State Department?” Castillo added.
The State Department is appealing the case to the U.S. Court of Appeals for the Tenth Circuit, which is why it sought a stay in the lower court in the meantime. That means the Tenth Circuit could still issue its own stay or even eventually reverse the lower court ruling. In the meantime, Zzyym is finally cleared to get the accurate passport they deserve.