Federal judge rules US officials cannot deny passport application based on refusal to select gender marker

A judge for the US District Court for the District of Colorado [official website] ruled [order, PDF] Wednesday that US officials may not deny the passport application of an intersex individual based on the individual’s refusal to select a male or female gender marker.

In September 2014 Dana Alix Zzyym applied for a US passport. Instead of checking the box for male or female on the application form, they wrote “intersex” underneath the category. They also sent a letter informing US Department of State authorities that they were neither female nor male and requested that the letter “X” be used in the sex field of the passport. The application was denied, and Dana brought a lawsuit, stating that the denial of their application and the underlying binary-only gender policy causing the denial were violations of the Administrative Procedure Act (APA). Dana also claimed that the denial and policy behind it were a violation of their due process and equal protection rights under the Constitution.

The Department offered five reasons for the binary-only gender policy, and the judge found that all of these reasons failed to show rational decision making, making them arbitrary and capricious. After making this finding, the judge also found that in denying the application, the Department acted “beyond its authority in denying the option for a non-binary gender option on the passport application.” The judge reasoned that “[b]ecause neither the Passport Act nor any other law authorizes the denial of a passport application without good reason, and adherence to a series of internal policies that do not contemplate the existence of intersex people is not good reason, the Department has acted in excess of its statutory jurisdiction.”

The judge did not specifically order the Department to issue a passport to Dana, but rather enjoined the Department “from relying upon its binary-only gender marker policy to withhold the requested passport from Dana.”