U.S. District Judge R. Brooke Jackson has ordered the U.S. State Department to issue a gender-neutral passport to Dana Alix ZZyym, who was identified as female at birth but who rejects the gender binary, identifying neither as male nor female. Lambda Legal represents Zzyym in this long-running lawsuit in the federal trial court in Denver. Zzyym v. Pompeo, 2018 U.S. Dist. LEXIS 160018, 2018 WL 4491434 (D. Colo., September 19, 2018).
Zzyyym is described by Judge Jackson as “an intersex individual” who submitted a passport application in September 2014. In common with many intersex people, Zzyym uses the pronouns they, them, and their, but Judge Jackson skirts the pronoun issue by using ZZyym’s gender-neutral first name throughout the opinion in place of pronouns.
“Instead of checking the box labeled ‘M’ for male or ‘F’ for female on the application form, Dana instead wrote ‘intersex’ below the ‘sex’ category,” wrote Jackson. “By separate letter Dana informed the passport authorities that Dana was neither male nor female. The letter requested ‘X’ as an acceptable marker in the sex field to conform to International Civil Aviation Organization (‘ICAO’) standards for machine-readable travel documents. It is undisputed that in every other respect Dana is qualified to receive a passport.”
But the State Department denied the application. At the bureaucratic level at which passports are processed, there is no flexibility. One must selection M or F or be denied. In the denial letter, the Department said it would issue Dana a passport listing their gender as “female” because that was the sex listed on the driver’s license that they submitted to prove Dana’s identity. Or, said the Department, Dana could have M listed if they provided “a signed original statement on office letterhead from your attending medical physician” attesting to their “new gender.” Obviously, the low-level bureaucrats at State had trouble getting their heads around the concept of intersex, confusing it with transgender.
Dana submitted a letter appealing this denial, including “two sworn statements by physicians from the United States Department of Veterans Affairs Medical Center in Cheyenne, Wyoming, that verified Dana’s sex as ‘intersex.’” Dana also personally presented their case at the Colorado Passport Agency, explaining why they did not want their passport to indicate M or F.
But the Department persisted, explaining that it could not issue a passport unless the gender box was checked off as M or F. Why? Because. The form requires it. Dana requested reconsideration, which was turned down in April 2015.
This led to the lawsuit, originally against Obama Administration Secretary of State John Kerry (in his official capacity), now against Michael Pompeo, as well as Director Sherman Portell of the Colorado Passport Agency. The lawsuit made multiple claims for relief, foremost arguing that the Department’s conduct was “arbitrary and capricious” in violation of the Administrative Procedure Act, which requires that agency action be undertaken for a reason. The lawsuit also argued that by imposing this gender choice requirement the Department exceeded the authority delegated to it by Congress in the statutes governing issuance of passports, and that it violated 5th Amendment Due Process and Equal Protection rights. As relief, Zzyym ask the court to issue a “writ of mandamus” to compel the Department to issue a passport “accurately reflecting the plaintiff as intersex.”
On November 16, 2016, Judge Jackson ruled that “the agency’s decision-making process was not rational based upon the evidence in the record,” but rather than issue the requested writ of mandamus, he decided to send the case back to the Department for “reevaluation of its gender policy.” Too late, unfortunately, as this ruling was issued the week after Donald Trump’s election as president. So it eventually fell into the lap of the new Trump-appointed leadership of the State Department, and one can only speculate about the puzzlement and consternation it may have caused in the new fact-free world of the Trump Administration.
“In March 2017, while the Department was reevaluating the policy, Dana requested that the Department issue a full-validity or temporary passport bearing an ‘X’ or other third-gender marking in the sex field in order for Dana to attend an international conference,” wrote Judge Jackson. But the Department refused. Why? Need you ask? No reason, just no. The refusal letter did state, however, that the Department “would soon complete its review of the policy,” but you know where this leading. On May 1, the Department again denied Dana’s application, issuing a memorandum purporting to “explain” its decision, but the explanation really just boiled down to a version of “that’s the way it is.”
Dana moved to reopen the case and their counsel filed a supplemental complaint to reflect the Department’s May action, seeking “injunctive relief and a judicial declaration that the State Department has exceeded its authority under the Administrative Procedure Act and has violated the Fifth Amendment to the U.S. Constitution.” In his ruling of September 19, Judge Jackson explains that there is no need to address the constitutional claim because the matter can be resolved in ZZyym’s favor under the APA.
Judge Jackson noted that U.S. passports did not record gender prior to 1976, when the Department “changed course and added a male and female checkbox. The applicant is required to choose one or the other. In my order dated November 22, 2016, I found that the administrative record did not show that the Department’s decision-making process that resulted in the gender policy was rational. The reasons provided by the Department for the policy failed to show a reasoned decision-making process and instead seemed to be ad hoc rationalizations for the binary nature of the gender field.”
The new memorandum issued by the Department fared no better. In the memo, the Department showed awareness that some other countries have accommodated non-binary individuals by using an “X” on travel documents, and they can be scanned by the standard passport reading equipment in use at border crossings and airports. Now the Department advances five “reasons” for its “gender policy.”
First, the Department argued that requiring a gender selection of M or F helps to ensure the accuracy and verifiability of a passport holder’s identity, for which the Department relies on state-issued documents, such as birth certificates and driver’s licenses. Secondly, the sex of a passport applicant is a “vital data point in determining whether someone is entitled to a passport” since “the Department must data-match with other law enforcement systems” all of which “recognize only two sexes.” Thus, State argues, “continued use of a binary option for the sex data point is the most reliable means to determine eligibility.” The Department also argued that “consistency of sex data point ensures easy verification of passport holder’s identity in domestic contexts.” In essence, they argue that introducing a third sex marker on passports could “introduce verification difficulties in name checks and complicate automated data sharing among these other agencies,” which would “cause operational complications.” The Department also contended that “there is no generally accepted medical consensus on how to define a third sex.” While acknowledging that people such as Dana exist, “the Department lacks a sound basis in which to make a reliable determination that such an individual has changed their sex to match that gender identity.” This explanation suggests they don’t understand the difference between transgender and intersex. Finally, they argued, they had to stick with the current policy because “changing it would be inconvenient.” In other words, a totally bureaucratic response focused on technical convenience and unresponsive to the need to deal with individuals as they are.
“Looking at the proffered reasons and cited evidence provided by the Department,” wrote the judge, “I find that the Department’s decision is arbitrary and capricious,” and he went through the reasons step by step, explaining why they failed to show “rational decision making,” which is the minimal requirement under the APA to sustain an administrative decision. He showed how the earlier responses to Dana’s application undermined the explanations provided in the memorandum. Even though M and F do not accurately identify Dana, the Department insists on using them, thus contradicting its explanation that it clings to the binary system for purposes of “accurate” identification of people. And the judge found that the administrative record included data at every turn that contradicted the Department’s conclusions.
Most tellingly, there was never any real explanation as to why somebody’s sex needs to be indicated on their passport that would justify refusing to accommodate intersex people. “Apparently,” wrote Jackson, “the data field of ‘SEX (M-F)’ was recommended because experts thought ‘that with the rise in the early 1970s of unisex attire and hairstyles, photographs had become a less reliable means for ascertaining a traveler’s sex.” Additionally, as naming conventions changed, relying on first names to identify sex became problematic. An ICAO report from 1974 recommended adding the sex markers as an aid to identification, and at that time the recommendation was to add M-F as the indicators. But since then the ICAO has modified its standards to use “X” for “unspecified,” so relying on the ICAO recommendation of 1974 no longer justifies refusing to use the “X”.
The court found that the Department contradicts itself by relying on the same sort of authorities to deal with transgender people’s passport applications as would be relied upon in transgender cases. Jackson pointed out that “the information relied upon in the administrative record also reflects a lack of consensus as to how individuals born intersex could be classified as either ‘male’ or ‘female,’” but “this has not prevented the Department from requiring intersex people to elect, perhaps at random, as it doesn’t seem to matter to the Department which one of those two categories Dana chooses.” The lack of a medical consensus is thus irrelevant to the Department’s current practices.
Finally, turning to the inconvenience and expense argument, Jackson notes that it is merely asserted without any data to back it up. “True,” he wrote, “common sense would tell anyone that altering a system will necessarily involve some effort and money. However, the Department’s rationale here is the product of guesswork rather than actual analysis, and it does not rise to the level of reliable evidence that is needed to show that the Department’s policymaking was rational.”
Actually, Jackson concluded, the new memorandum “added very little” to what was presented to the court in 2016. Jackson also ruled against the Department on Zzyym’s argument that denying them a passport exceeded the Department’s delegated powers. Congress has delegated to the Department the decision to deny passports for a variety of reasons, but, wrote Jackson, “The authority to issue passports and prescribe rules for the issuance of passports under 22 U.S.C. section 211a does not include the authority to deny an applicant on grounds pertinent to basic identity, unrelated to any good cause. . .”
“Because neither the Passport Act nor any other law authorizes the denial of a passport application without good reason,” concluded Jackson, “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 authority.”
The court determined to grant Zzyym the injunctive relief they sought. “Dana has been pursuing a passport for close to four years now,” he wrote. “I grant Dana’s request for injunctive relief and enjoin the Department from relying upon its binary-only gender marker policy to withhold the requested passport from Dana.” The judge concluded that a writ of mandamus was not necessary, as injunctive relief would suffice. Will the Trump Administration comply or pursue a pointless appeal?
Advocacy for Dana drew in several pro bono cooperating attorneys, local counsel from Denver, and Lambda Legal attorneys Camilla Bronwen Taylor, M. Dru Levasseur, and Paul David Castillo.