The case challenging the U.S. Department of State’s refusal to issue a passport with a gender-neutral marker is moving on to the 10th Circuit Court of Appeals and is getting support from several states and nonprofit groups focused on LGBT rights.
Zzyym v. Pompeo centers around Dana Zzyym, a resident of Fort Collins, who was born intersex and identifies as nonbinary and was denied a passport after writing “intersex” on their passport application instead of checking off “male” or “female.” The U.S. District Court for the District of Colorado concluded that the State Department’s gender policy was arbitrary, capricious and unlawful, and the federal government appealed. Zzyym, in their response brief filed in May, argued that “Dana cannot leave the country … because they refuse to be truthful about who they are,” and the State Department exceeded its statutory authority by refusing the passport application.
After the case moved to the appellate court, Holland & Hart, representing the Intersex & Genderqueer Recognition Project, filed an amicus brief on behalf of Zzyym, as did the state of Colorado with California, Maine, Minnesota, Nevada, New Jersey, Oregon, Vermont and Washington — as well as a handful of other LGBTQ organizations.
The State Department has argued that it cannot include non-binary gender designations on passports because that would put it at odds with state and local jurisdictions. An amicus brief filed by the Colorado Attorney General’s Office May 15 said that Colorado is among a group of states that do allow for documents that recognize non-binary gender designations and that national and international organizations that set the standards for driver’s licenses, ID cards and international passports also allow for “X” to be used as a gender identifier.