The US Court of Appeals for the Tenth Circuit on Tuesday reversed and remanded a decision by the State Department rejecting an intersex passport application.
The State Department has historically applied a binary approach to identifying passport applicants based on their sex. In getting approved for a passport, everyone must be classified as either male or female. However, this has posed a problem for Dana Zzyym, who is intersex and does not identify as male or female. Zzyym requested a passport with an “X” for their sex because male or female would be inaccurate, and they supplied a letter from a physician confirming that they are intersex. The State Department denied the application. Zzyym challenged the decision by claiming in a lawsuit that the binary sex policy “exceeded the State Department’s statutory authority, was arbitrary and capricious under the Administrative Procedure Act, and violated the U.S. Constitution.”
The district court that heard the case determined that the State Department had violated the Administrative Procedure Act and thus did not move on to analyzing the Constitutional basis of Zzyym’s claims. The State Department appealed this holding, and the Tenth Circuit subsequently determined that, while the State Department acted within its authority, its authority was carried out in a manner that was arbitrary and capricious. Their arbitrary and capricious holding came from the fact that three of the five reasons the Department gave for denying Zzyym’s request were not supported in the administrative record.
Ultimately, the State Department is permitted to deny passports for almost any reason. A major problem with their reasoning, however, was that they claimed the binary sex policy was partly a way to “promote accuracy and reliability.” The court held that “for intersex individuals like Zzyym, treating every applicant as male or female would necessarily create inaccuracies.”
Thus, the Tenth Circuit Court required the State Department to reconsider Zzyym’s application for an intersex passport.
