The State Department Can’t Deny a Passport to an Individual Who Refused to Select a Gender

September 20, 2018, 3:17 PM UTC

An intersex Colorado resident just won a yearslong case to apply for a passport without selecting “female” or “male” in their application.

A federal judge ruled Wednesday that officials could not deny the individual, Dana Zzyym, a passport simply due to their refusal to select a gender.

Zzyym sued in 2015 when the State Department refused their request to use “X” as a gender marker on their passport application—Zzyym identifies as intersex and uses “they/them” pronouns. In 2016, a judge ordered the State Department to reconsider its decision, but when Zzyym applied again, the department denied the application in 2017.

But now U.S. District Judge R. Brooke Jackson has ruled that the explanations provided by the State Department for rejecting the application weren’t reasonable, calling the decision “arbitrary and capricious.”

“Adherence to a series of internal policies that do not contemplate the existence of intersex people is not good reason” to deny someone’s passport application, Jackson wrote. Jackson also dismissed the State Department’s concerns that the refusal to select a gender would “complicate the process of verifying an applicant’s identity.”

Jackson’s ruling is limited to Zzyym’s case, but Lambda Legal senior attorney Paul Castillo told The Denver Post that it is a “groundbreaking, first-of-its-kind ruling” and hopes it could lead to expanded gender choices in the future.