Generation X, Meet Gender X

On September 19, 2016, the United States Court for the District of Colorado enjoined the Secretary of State and the Director of the Colorado Passport Agency, “from relying on its binary-only gender marker policy to withhold the requested passport” from an individual who identifies as intersex, neither male nor female. ZZyym v. Pompeo, et al., p. 20, Order here. Dana Alix Zzyym, ironically similar to Dana’s vowel-less last name, was born with sex characteristics that do not fit typical binary notions of bodies designated “male” or “female.” Dana’s eligibility for a passport was uncontested other than Dana’s refusal to identify a “sex” from the binary choices. Although Dana’s Colorado driver’s license identifies Dana as “female,” Dana was subjected to several painful medical interventions as a youth in an attempt to conform to a particular gender. Dana wanted the passport to reflect “intersex” (requesting the designation X instead of the binary choice M or F) because the Passport Agency should not force swearing to a sex that the applicant is not. Intersex is a term coined to describe someone like Dana whose sex characteristics do not fit the typical binary notions; intersex traits can be visible at birth, appear during puberty, or may be not visible at all.

The Passport Agency said they would allow Dana to choose M, despite her driver’s license designation, if she could provide proof from an attending medical physician in which the doctor would attest to Dana’s “new gender.” The Passport Agency said such a designation is consistent with the way it handles transgender persons who have transitioned or are transitioning. This was unacceptable to Dana as Dana’s birth certificate, amended in 2012, lists Dana’s sex as “unknown.” The Government put forth several reasons why its decision was rational including that sex data points ensure the accuracy and easy verification of the Holder’s identity, that there is no generally accepted medical consensus on how to define a “third sex,” and that it would unduly burdensome and expensive to generate a third alphabetic designation for the mandatory disclosure of “sex” on a passport.

Judge R. Brook Jackson made short shrift of the Agency’s arguments. Judge Brooke found the accuracy and verifiable identity argument “perplexing.” Prior to 1974, passport applications did not require a designation of “sex.” Apparently, certain security “experts” thought the 70’s advent of unisex attire and hairstyles, along with names that are not gender-specific, made photographs an unreliable method of identifying a traveler’s gender. With those developments, the International Civil Aviation Organization (“ICAO”), for some reason arising from border security concerns, urged passport issuers to require the disclosure of a gender. But, the original disclosure requirement had only the binary choice. Recently, however, Washington, Oregon, California, and D.C. all recognize the designation “intersex” on a person’s birth certificate. Moreover, even the ICAO has now recognized a choice “X” as a third option for gender. Equally unavailing was the argument that there is no recognized medical consensus on “intersex.” The American Medical Association recognizes the authority of the World Professional Association for Transgender Health. That organization, as well as three former U.S. Surgeons General and the American Medical Associate Board of Trustees acknowledge the existence of a “third sex” beyond the binary male/female choices. Thus, even if there is a lack of medical “consensus,” there is equally a lack of support for binary sex designation being preferable.

Judge Jackson identified the “real reason” the government was rejecting Dana’s request was the alleged time and money involved with providing an applicant the choice of “Gender X.” But, the government did not offer any evidence of what such costs would be and did not even attempt to calculate them. Unfortunately for Dana, who has been waiting 4 years to travel for international conferences, the Court stopped short of issuing a writ of mandamus or mandatory injunction to require that Dana receive a passport. The Court permanently enjoined the reliance upon the refusal to designate between the binary choices as a reason for denying Dana a passport and found that the Agency exceeded its authority with the denial. But, the relief Dana sought is still available under the Administrative Procedures Act and the Court found that permanently enjoining the Agency from using the binary gender policy to withhold the passport is essentially the same relief as a writ of mandamus.

Let’s hope we can soon say, “happy travels, Dana.”