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State Department ordered to reconsider decision denying accurate passport for intersex, nonbinary Navy vet

By MURI ASSUNÇÃO | New York Daily News | Published: May 14, 2020

NEW YORK (Tribune News Service) — The U.S. State Department was ordered by a federal court of appeals to reconsider its decision of denying a passport to Navy veteran Dana Zzyym.

Dana Zzyym, who’s intersex and identifies as gender non-binary, applied for a passport in 2014. Since they don’t identify as either male or female — and the passport application form didn’t provide any other gender marker — they simply couldn’t get one.

In October, 2015 Lambda Legal filed a lawsuit on behalf of Zzyym asserting that the State Department “violated the due process and equal protection components of the Fifth Amendment to the U.S. Constitution, as well as the federal Administrative Procedure Act” when it denied to issue them a passport that accurately reflected their gender.

The court ruled in favor of Zzyym in 2016 and then again in 2018, but the State Department appealed to the U.S. Court of Appeals for the Tenth Circuit.

The latest ruling was announced Tuesday.

Even though the federal appeals court didn’t uphold the 2018 ruling upright, it rejected three of the five reasons given by the State Department to deny Zzyym an accurate passport, and ordered it to reconsider their passport application.

The court noted that forcing non-binary intersex individuals like Zzyym to pick a male of female gender marker in the passport application “injects inaccuracy into the data.”

“A chef might label a jar of salt a jar of sugar, but the label does not make the salt any sweeter. Nor does requiring intersex people to mark ‘male’ or 'female’ on an application make the passport any more accurate,” the ruling read.

Lambda Legal, which is a national organization that advocates for the civil rights of the LGBTQ community, cautiously celebrated the small victory, while vowing to keep fighting for Zzyym’s rights.

“While we may have wanted a more definitive ruling from the Tenth Circuit, the court recognized that treating every applicant as male or female is inconsistent with its own goal to issue an accurate identity document,” Paul D. Castillo, a lawyer the organization said in a statement.

“The court wants the State Department – for the third time – to reconsider Dana’s passport application, so we continue our battle,” he added.

“I started the process to get an accurate passport more than five years ago,” Zzyym said. “In those five years, I’ve been invited to present at several international conferences on issues confronting intersex individuals. I’ve been unable to attend because I don’t have an accurate passport," they added.

Zzyym, who called the ruling “disappointing,” said they are not feeling discouraged.

"I knew this would be a long battle, and I’m ready to continue the fight,” Zzyym said.

According to Lambda Legal, Zzyym was born with ambiguous sex characteristics. They were raised as a boy, and during childhood they had to endure “several irreversible, painful and medically unnecessary surgeries that didn’t work, traumatized Dana and left them with severe scarring.”

It wasn’t until much later in life that Zzyym understood that they’d been born intersex. They now work as an associate director for the Intersex Campaign for Equality.

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