Since 2015, a Faegre Drinker pro bono team, in partnership with Lambda Legal, has sought to obtain a passport with an accurate gender marker for client Dana Zzyym in litigation against the U.S. State Department. The team’s efforts recently paid off when the State Department announced a major change in policy that will allow Zzyym and all non-binary, intersex, or gender non-conforming applicants to obtain passports that correctly reflect their gender.
Zzyym is a Navy veteran who was born intersex and uses the pronouns they/them/theirs. In 2014, Zzyym applied for a passport but declined to select either “male” or “female” on their application because neither is correct. The State Department denied their application on that basis.
The Faegre Drinker team that partnered with Lambda Legal included business litigation partner Emily Chow, government and regulatory affairs partner Ann Prouty and business litigation associate Rory Collins. In 2015, they challenged the denial of Zzyym’s application and the State Department’s binary gender-marker policy in a lawsuit filed in a federal district court in Colorado.
In 2018, the district court ruled in Zzyym’s favor, finding that the State Department’s binary gender-marker policy was arbitrary and capricious, and that the State Department had exceeded its statutory authority by denying Zzyym a passport solely on the basis of that policy. On appeal, the Tenth Circuit agreed with the district court in part, concluding that three of the five stated justifications for the State Department’s policy were not supported by the record. The Tenth Circuit remanded the case with instructions for the State Department to reconsider Zzyym’s application.
On June 30, 2021, while it was reconsidering Zzyym’s application, the State Department announced its plans to add an “X” gender marker for passport applicants who identify as intersex, non-binary or gender non-conforming. The State Department also stated that, beginning immediately, it would no longer require medical certification to change the gender marker on U.S. passports. This policy change is a significant victory for the LGBTQI+ community and has been covered by The New York Times, The Wall Street Journal and other national media outlets.
For more information, read Lambda Legal’s press release.