Dana Zzyym, a nonbinary intersex U.S. Navy veteran, helped to effect a major policy change by the U.S. State Department that will allow Zzyym and all nonbinary, intersex or gender nonconforming applicants to obtain passports that correctly reflect their gender. A Faegre Drinker pro bono team that included professionals from the business litigation and government and regulatory affairs practice groups, in partnership with Lambda Legal, represented Zzyym in litigation against the State Department that sought since 2015 to obtain a passport with an accurate gender marker.
Zzyym, who was born intersex and uses the pronouns they/them/theirs, applied for a passport in 2014 and declined to select either “male” or “female” on their application because neither is correct. The State Department denied their application on that basis. In 2015, Faegre Drinker filed a lawsuit in federal district court in Colorado that challenged the denial of Zzyym’s application and the State Department’s gender marker policy.
The district court ruled in Zzyym’s favor in 2018, 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. The U.S. Court of Appeals for 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, nonbinary or gender nonconforming. 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.