On Tuesday, a three-judge panel of the 10th Circuit Court of Appeals in Denver concluded the State Department had authority to deny an application with no gender specified but had exercised it in an arbitrary and capricious manner with some of its stated reasons not supported by evidence.
The judges said the State Department should reconsider the application by Dana Zzyym because it's not clear if it would have reached the same conclusion without relying on those reasons, including its assertion that there is no medical consensus on who is intersex.
In a statement released by Lambda Legal, which is representing Zzyym, Zzyym said the most recent ruling was disappointing but the bid to get a passport would continue. “I’m not deterred. I knew this would be a long battle and I’m ready to continue the fight,” Zzyym said.
The State Department declined to comment on the ruling. Zzyym was born with ambiguous physical sexual characteristics and identifies as nonbinary in gender. Zzyym was first denied a passport in 2015 after requesting “X″ as a gender marker.
In 2016, U.S. District Judge Brooke Jackson ordered the department to reconsider Zzyym's application. He then threw out the department's second rejection from 2017, when all U.S. states listed only two genders on their identity documents.
The State Department has argued that allowing an “X” as a gender marker would complicate the process of verifying an applicant’s identity and determining eligibility based on federal, state and local databases.
However, attorneys general from California, Colorado, Maine, Minnesota, Nevada, New Jersey, Oregon, Vermont and Washington state filed a brief in support of Zzyym's case in 2019, saying adding nonbinary gender designations on their driver’s licenses and other documents has not caused any problems.
They said the State Department’s refusal to recognize nonbinary gender would make it harder to verify someone’s identity in government databases, not easier.