Department of State Sued after Denying Passport Application of an Intersex Applicant

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Department of State Sued after Denying Passport Application of an Intersex Applicant

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Dana Alix Zzyym, a U.S. Navy Veteran and resident of Fort Collins, Colorado who uses the gender-neutral pronouns they, them and their has sued the State Department for denying their application for a U.S. passport.  The lawsuit argues that the State Department violated the 5th Amendment of the U.S. Constitution and the Administrative Procedures Act by denying Dana a passport that accurately reflects their gender, which is neither male nor female.

Dana was born intersex. For Dana, this meant that they were born with ambiguous external sex characteristics. Originally, Dana’s parents left the sex field on their birth certificate blank. That was until Dana’s parents made the decision to raise them as a boy. Dana was given the name Brian Orin Whitney and underwent painful surgeries to assign the chosen gender. Those surgeries, however, were unsuccessful, as it is impossible to foresee how an intersex infant’s gender identity will develop over time. Dana realized that the male gender assignment was not accurate and changed their name to Dana Alix Zzyym in 1995.

Currently, Dana serves as the Associate Director for the United States affiliate of the Organisation Intersex International (“OII-USA”). As part of Dana’s work, they were invited to attend the International Intersex Forum in Mexico City where Dana would represent and vote on behalf of OII-USA. In preparation, Dana applied for a U.S. passport, as is required for international travel.

As a first time passport applicant, Dana was required to submit Form DS-11 as well as a birth certificate, among other documents, to the Department of State. The Form DS-11 requires that the applicant identify themselves as either male or female. Dana accurately listed their gender as intersex.  Dana also included the original birth certificate which listed the gender as “unknown.”

According to the complaint, Dana received a letter from the Department of State which informed Dana that in order to receive a passport, they must comply with the Department’s required gender designation of “M” or “F” for placement on the passport. The letter proposed three options to Dana: (1) receive a passport designating Dana as female; (2) receive a passport designating Dana as male or; (3) withdraw the passport application.

Dana attempted to provide enough documentation to support their request to designate Dana’s gender with an “X” instead of “M” or “F,” which comports with the International Civil Aviation Organization (ICAO) standards for travel documents. However, on December 29, 2014, Dana received a Notification of Denial from one of the named defendants, Sherman Portell, who is the Director of the Colorado Passport Agency for the United States Department of State. The decision informed Dana that the State Department was unable to identify their gender with an “X” on the passport, thus the application could not be approved. Dana requested that the decision be reconsidered, but the State Department confirmed the denial of Dana’s application on the same grounds.

With the legal support of Lambda Legal, Dana filed a lawsuit naming both Sherman Portell and Secretary of State John Kerry as defendants. The complaint alleges that by denying Dana a passport, thereby restricting their right to travel, the State Department has violated the Administrative Procedures Act and the Fifth Amendment of the U.S. Constitution. More specifically, the complaint states that Dana has been denied due process as is guaranteed by the Fifth Amendment, in addition to having been deprived of equal protection, also guaranteed by the Fifth Amendment.

The complaint was filed in the United States Court for the District of Colorado.  Read the full complaint here: Complaint For Declaratory Injunctive and Other Relief

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