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Federal Court Orders State Department to Issue Gender-Neutral Passport to Intersex Applicant

Posted on: September 24th, 2018 by Art Leonard No Comments

U.S. District Judge R. Brooke Jackson has ordered the U.S. State Department to issue a gender-neutral passport to Dana Alix ZZyym, who was identified as female at birth but who rejects the gender binary, identifying neither as male nor female. Lambda Legal represents Zzyym in this long-running lawsuit in the federal trial court in Denver.  Zzyym v. Pompeo, 2018 U.S. Dist. LEXIS 160018, 2018 WL 4491434 (D. Colo., September 19, 2018).

 

Zzyyym is described by Judge Jackson as “an intersex individual” who submitted a passport application in September 2014. In common with many intersex people, Zzyym uses the pronouns they, them, and their, but Judge Jackson skirts the pronoun issue by using ZZyym’s gender-neutral first name throughout the opinion in place of pronouns.

 

“Instead of checking the box labeled ‘M’ for male or ‘F’ for female on the application form, Dana instead wrote ‘intersex’ below the ‘sex’ category,” wrote Jackson. “By separate letter Dana informed the passport authorities that Dana was neither male nor female.  The letter requested ‘X’ as an acceptable marker in the sex field to conform to International Civil Aviation Organization (‘ICAO’) standards for machine-readable travel documents.  It is undisputed that in every other respect Dana is qualified to receive a passport.”

 

But the State Department denied the application. At the bureaucratic level at which passports are processed, there is no flexibility.  One must selection M or F or be denied.  In the denial letter, the Department said it would issue Dana a passport listing their gender as “female” because that was the sex listed on the driver’s license that they submitted to prove Dana’s identity.  Or, said the Department, Dana could have M listed if they provided “a signed original statement on office letterhead from your attending medical physician” attesting to their “new gender.”  Obviously, the low-level bureaucrats at State had trouble getting their heads around the concept of intersex, confusing it with transgender.

 

Dana submitted a letter appealing this denial, including “two sworn statements by physicians from the United States Department of Veterans Affairs Medical Center in Cheyenne, Wyoming, that verified Dana’s sex as ‘intersex.’” Dana also personally presented their case at the Colorado Passport Agency, explaining why they did not want their passport to indicate M or F.

 

But the Department persisted, explaining that it could not issue a passport unless the gender box was checked off as M or F. Why?  Because.  The form requires it.  Dana requested reconsideration, which was turned down in April 2015.

 

This led to the lawsuit, originally against Obama Administration Secretary of State John Kerry (in his official capacity), now against Michael Pompeo, as well as Director Sherman Portell of the Colorado Passport Agency. The lawsuit made multiple claims for relief, foremost arguing that the Department’s conduct was “arbitrary and capricious” in violation of the Administrative Procedure Act, which requires that agency action be undertaken for a reason.  The lawsuit also argued that by imposing this gender choice requirement the Department exceeded the authority delegated to it by Congress in the statutes governing issuance of passports, and that it violated 5th Amendment Due Process and Equal Protection rights. As relief, Zzyym ask the court to issue a “writ of mandamus” to compel the Department to issue a passport “accurately reflecting the plaintiff as intersex.”

 

On November 16, 2016, Judge Jackson ruled that “the agency’s decision-making process was not rational based upon the evidence in the record,” but rather than issue the requested writ of mandamus, he decided to send the case back to the Department for “reevaluation of its gender policy.” Too late, unfortunately, as this ruling was issued the week after Donald Trump’s election as president.  So it eventually fell into the lap of the new Trump-appointed leadership of the State Department, and one can only speculate about the puzzlement and consternation it may have caused in the new fact-free world of the Trump Administration.

 

“In March 2017, while the Department was reevaluating the policy, Dana requested that the Department issue a full-validity or temporary passport bearing an ‘X’ or other third-gender marking in the sex field in order for Dana to attend an international conference,” wrote Judge Jackson. But the Department refused. Why?  Need you ask?  No reason, just no.  The refusal letter did state, however, that the Department “would soon complete its review of the policy,” but you know where this leading.  On May 1, the Department again denied Dana’s application, issuing a memorandum purporting to “explain” its decision, but the explanation really just boiled down to a version of “that’s the way it is.”

 

Dana moved to reopen the case and their counsel filed a supplemental complaint to reflect the Department’s May action, seeking “injunctive relief and a judicial declaration that the State Department has exceeded its authority under the Administrative Procedure Act and has violated the Fifth Amendment to the U.S. Constitution.” In his ruling of September 19, Judge Jackson explains that there is no need to address the constitutional claim because the matter can be resolved in ZZyym’s favor under the APA.

 

Judge Jackson noted that U.S. passports did not record gender prior to 1976, when the Department “changed course and added a male and female checkbox. The applicant is required to choose one or the other.  In my order dated November 22, 2016, I found that the administrative record did not show that the Department’s decision-making process that resulted in the gender policy was rational.  The reasons provided by the Department for the policy failed to show a reasoned decision-making process and instead seemed to be ad hoc rationalizations for the binary nature of the gender field.”

 

The new memorandum issued by the Department fared no better. In the memo, the Department showed awareness that some other countries have accommodated non-binary individuals by using an “X” on travel documents, and they can be scanned by the standard passport reading equipment in use at border crossings and airports.  Now the Department advances five “reasons” for its “gender policy.”

 

First, the Department argued that requiring a gender selection of M or F helps to ensure the accuracy and verifiability of a passport holder’s identity, for which the Department relies on state-issued documents, such as birth certificates and driver’s licenses. Secondly, the sex of a passport applicant is a “vital data point in determining whether someone is entitled to a passport” since “the Department must data-match with other law enforcement systems” all of which “recognize only two sexes.”  Thus, State argues, “continued use of a binary option for the sex data point is the most reliable means to determine eligibility.”  The Department also argued that “consistency of sex data point ensures easy verification of passport holder’s identity in domestic contexts.”  In essence, they argue that introducing a third sex marker on passports could “introduce verification difficulties in name checks and complicate automated data sharing among these other agencies,” which would “cause operational complications.”  The Department also contended that “there is no generally accepted medical consensus on how to define a third sex.”  While acknowledging that people such as Dana exist, “the Department lacks a sound basis in which to make a reliable determination that such an individual has changed their sex to match that gender identity.”  This explanation suggests they don’t understand the difference between transgender and intersex.  Finally, they argued, they had to stick with the current policy because “changing it would be inconvenient.”  In other words, a totally bureaucratic response focused on technical convenience and unresponsive to the need to deal with individuals as they are.

 

“Looking at the proffered reasons and cited evidence provided by the Department,” wrote the judge, “I find that the Department’s decision is arbitrary and capricious,” and he went through the reasons step by step, explaining why they failed to show “rational decision making,” which is the minimal requirement under the APA to sustain an administrative decision. He showed how the earlier responses to Dana’s application undermined the explanations provided in the memorandum.  Even though M and F do not accurately identify Dana, the Department insists on using them, thus contradicting its explanation that it clings to the binary system for purposes of “accurate” identification of people.  And the judge found that the administrative record included data at every turn that contradicted the Department’s conclusions.

 

Most tellingly, there was never any real explanation as to why somebody’s sex needs to be indicated on their passport that would justify refusing to accommodate intersex people. “Apparently,” wrote Jackson, “the data field of ‘SEX (M-F)’ was recommended because experts thought ‘that with the rise in the early 1970s of unisex attire and hairstyles, photographs had become a less reliable means for ascertaining a traveler’s sex.”  Additionally, as naming conventions changed, relying on first names to identify sex became problematic.  An ICAO report from 1974 recommended adding the sex markers as an aid to identification, and at that time the recommendation was to add M-F as the indicators.  But since then the ICAO has modified its standards to use “X” for “unspecified,” so relying on the ICAO recommendation of 1974 no longer justifies refusing to use the “X”.

 

The court found that the Department contradicts itself by relying on the same sort of authorities to deal with transgender people’s passport applications as would be relied upon in transgender cases. Jackson pointed out that “the information relied upon in the administrative record also reflects a lack of consensus as to how individuals born intersex could be classified as either ‘male’ or ‘female,’” but “this has not prevented the Department from requiring intersex people to elect, perhaps at random, as it doesn’t seem to matter to the Department which one of those two categories Dana chooses.” The lack of a medical consensus is thus irrelevant to the Department’s current practices.

 

Finally, turning to the inconvenience and expense argument, Jackson notes that it is merely asserted without any data to back it up. “True,” he wrote, “common sense would tell anyone that altering a system will necessarily involve some effort and money.  However, the Department’s rationale here is the product of guesswork rather than actual analysis, and it does not rise to the level of reliable evidence that is needed to show that the Department’s policymaking was rational.”

 

Actually, Jackson concluded, the new memorandum “added very little” to what was presented to the court in 2016. Jackson also ruled against the Department on Zzyym’s argument that denying them a passport exceeded the Department’s delegated powers.  Congress has delegated to the Department the decision to deny passports for a variety of reasons, but, wrote Jackson, “The authority to issue passports and prescribe rules for the issuance of passports under 22 U.S.C. section 211a does not include the authority to deny an applicant on grounds pertinent to basic identity, unrelated to any good cause. . .”

 

“Because neither the Passport Act nor any other law authorizes the denial of a passport application without good reason,” concluded Jackson, “and adherence to a series of internal policies that do not contemplate the existence of intersex people is not good reason, the Department has acted in excess of its statutory authority.”

 

The court determined to grant Zzyym the injunctive relief they sought. “Dana has been pursuing a passport for close to four years now,” he wrote.  “I grant Dana’s request for injunctive relief and enjoin the Department from relying upon its binary-only gender marker policy to withhold the requested passport from Dana.”  The judge concluded that a writ of mandamus was not necessary, as injunctive relief would suffice.  Will the Trump Administration comply or pursue a pointless appeal?

 

Advocacy for Dana drew in several pro bono cooperating attorneys, local counsel from Denver, and Lambda Legal attorneys Camilla Bronwen Taylor, M. Dru Levasseur, and Paul David Castillo.

Mindless Bureaucracy Temporarily Foiled as District Judge Refuses to Dismiss Challenge to Gender-Binary Requirement on U.S. Passports

Posted on: November 23rd, 2016 by Art Leonard No Comments

“Just because” is not a good enough answer when the question is whether the State Department’s Passport Office was “arbitrary or capricious” when it refused to process a passport application from an intersexual applicant who declined to check either M or F on a passport application.  U.S. District Judge Richard Brooke Jackson of the District Court in Colorado rejected the government’s motion to dismiss Dana Alix Zzyym’s challenge to the gender binary requirement under the Administrative Procedure Act on November 22 in Zzyym v. Kerry, 2015 Westlaw 6879827, while reserving any ruling on the plaintiff’s constitutional claims.  Instead, Judge Jackson returned the matter to the Department for “reconsideration.”  Zzymm is represented by attorneys from Lambda Legal

Zzyym identifies as an intersex person, who was born “with sex characteristics that do not fit typical binary notions of bodies designated ‘male’ or ‘female,’” according to an explanation contained in the complaint. To avoid having to use sex-based pronouns, the court refers to Zzyym through the opinion by the plaintiff’s first name, Dana, as we will do in reporting on the case.  In a press release about the court’s ruling, Lambda Legal mentions that Dana’s birth certificate says “unknown” in the space for sex, reflecting the ambiguous genitalia that are sometimes characteristic of intersex newborns.

Dana applied for a passport in 2014 and wrote the word “intersex” below the “sex” category on the application form, rather than checking the box labeled male or the box labeled female. Dana identifies as neither.  In a separate letter, Dana explained this and requested that an X be used as an acceptable marker in the sex field, to conform to International Civil Aviation Organization (ICAO) standards for machine-readable travel documents.  Some other countries have adopted the X for documents issued to intersexual people as well as transgender people who have rejected a gender binary choice in describing their sexual identity.

The Passport Office reacted like a typical hide-bound bureaucracy and rejected the application immediately, without any evident thought or policy consideration, merely explaining that “the Department of State currently requires the sex field on United States passports to be listed as ‘M’ or ‘F’” and that the Department would be “unable to fulfill your request to list your sex as ‘X’.” The Department noted that Dana had submitted a copy of Dana’s driver’s license which identified Dana as “female” and offered to list Dana that way, or, if Dana could supply a doctor’s letter certifying such, they could list Dana as “male.”

Dana rejected this suggestion, submitting a letter to the Department appealing the Passport Office’s refusal to process the application, and included sworn documents from physicians with the U.S. Department of Veterans Affairs Medical Center in Cheyenne, Wyoming, where Dana had received treatment as a Navy veteran, verifying Dana’s sex as “intersex.” Dana also met with staff members at the Colorado Passport Office to explain that a passport identifying Dana as either male or female would be inaccurate.  The Department rejected Dana’s appeal, providing no explanation other than its original response, but suggesting that Dana could obtain a passport by submitting a new application and checking the box for “M” or “F”.  Dana’s request for further reconsideration was rejected, and this lawsuit followed.

Dana attacked the State Department’s position on several grounds. First, Dana relied on the Administrative Procedure Act, a statute that forbids administrative agencies from making decisions that are “arbitrary or capricious” in their interpretation and application of their statutory authority.  Dana also alleged that the Department’s requirement that passport applicants identify as male or female exceeded the authority Congress delegated to the Department in administering the passport program, as there is no statutory requirement that gender be listed on a passport.  (Indeed, prior to 1976, the passport application did not require applicants to indicate gender.)  Dana also alleged that the refusal to process the application was a violation of rights protected by the due process and equal protection obligations imposed on the federal government by the 5th Amendment of the Bill of Rights, and asked the court to order the Department to issue Dana a passport, as Dana is otherwise fully qualified to get one.  The State Department filed a motion seeking judgment on the APA claims and dismissal of the remaining claims in the Complaint, and the court held a hearing on July 20.

Judge Jackson decided to focus on the APA claim in his November 22 Order, reserving judgment on the constitutional claims. The essence of the arbitrary and capricious standard is to require the government to have a reason for its policy.  “I find that the administrative record contains no evidence that the Department followed a rational decisionmaking process in deciding to implement its binary-only gender passport policy,” wrote the judge.  He noted that the “policy” to which the Department referred in rejecting Dana’s application was actually a “collection of rules pertaining to gender contained within the Foreign Affairs Manual,” and that “these rules to not explicitly state that the Department cannot issue a passport containing an alternative gender marking.  Rather, they simply explain how the Department deals with different issues related to gender on passport applications.  The rules collectively do not contemplate the existence of a gender other than male or female.”

What should an agency do when presented with a “new issue” that has not been previously resolved? Under the Administrative Procedure Act, it should undergo a reasoned examination of the issue and come forth with a policy that makes sense in light of any relevant statutory requirements and the reasons for which the policy exists.  If the purpose of a passport is to accurately identify the person to whom it is issued and to certify that person’s status as a citizen, is it sensible to insist on identifying a person as having a sex that both the person and qualified medical authorities reject as inaccurate?

Judge Jackson pointed out that the Department “simply justified the Department’s decision to deny Dana’s application by referring to” its policy. After litigation commenced, the Department realized that it had to come up with some sort of rational justification for its policy, and submitted a declaration from a Division Chief, Bennet S. Fellows, but Judge Jackson found that the explanation “falls short.”  Much of it merely describes the background information underlying the policy, such as that the Department considers sex to be part of the “key data” necessary to identify somebody, and that an application without a sex designation is thus “incomplete.”  Fellows pointed out that no other federal agency that issues citizenship documents recognizes the use of a “third marker,” but Jackson said that none of this “rationalizes the decisionmaking process behind this policy.”

Fellows also insisted that the “key data” had to be supported by documentation from other official sources, such as “birth certificates, driver’s licenses, social security cards, third-party affidavits, and/or other documentation consistent with the information submitted by the applicant,” but that none of these sorts of documents “currently authorize the use of ‘X’ or any marker other than ‘M’ and ‘F’.”

Jackson found this rationale “unpersuasive” because “it is entirely self-fulfilling” and the Department’s own response to Dana’s application indicated that it would accept an application showing either “M” or “F” depending whether Dana sought to rely on Dana’s driver’s license (showing “female”) or a physician’s certification of Dana’s gender as “male.” That is, the Department was not concerned with accuracy, as such, but rather with being able to fit into its predetermined formal classifications.  The Fellows declaration also argues that the computer chip embedded in identity documents only accommodates “M” or “F” as gender identification.  “To the extent that is just another recitation of the Department’s current policy,” wrote the judge, “it does not advance the ball.”  If that means that reprogramming the chips to accept additional categories would be necessary, “that does not explain why the government first began to require passport applications to choose either sex in 1976, but it would at least provide a reason for the Department’s reluctance to change course now,” he continued.  “In any event, the Department hasn’t yet made that argument or attempted to show why it would consider that to be worse than accommodating this presumably small population of intersex individuals.”

The declaration also argued that it was necessary for U.S. passport information to “sync with law enforcement databases that exclusively use binary gender systems,” but it concedes that not every such database actually includes sex designations and that “a field left blank in the system is assumed to reflect that the particular datum is unknown or unrecorded, and not to indicate ‘intersex’ or other possible alternative categorization.’” Jackson expressed puzzlement, asking why if this is a critical factor, the Department was willing to record Dana as “male” knowing that Dana had state identification documents – the driver’s license – listing Dana as “female”?  “How does the Department sync a transgender individual’s passport information with law enforcement records that might list that very same passport holder as the opposite sex,” he asked.  “Without answers to these questions, I cannot conclude that the government rationally decided to formulate a binary-only gender policy.”

The Fellows declaration also suggested that the holder of a U.S. Passport without a male or female gender designation or with some third marker, such as “X”, might encounter difficulties in travel to other countries that insisted on a binary classification. “Is this pure speculation,” asked Jackson. “Is it a fact that other countries validate the information contained within a passport, as opposed to simply verifying the authenticity of the passport itself? And if a third gender marker did lead to inconvenience or difficulty entering other countries, isn’t that solely the problem of the passport holder who made the choice?  The current record does not explain why these factors rationally support the policy in place.”

Judge Jackson found that this first attempt by the Department to supply a rationale for its position was lacking. “That is not to say that it can’t be done,” he continued, “but the Department’s first effort to get over the arbitrary and capricious hump was not convincing.”  Jackson’s remedy was to return the matter to the Department for “reconsideration,” without dismissing the complaint or ruling on Dana’s constitutional claims.

Given the pending change of administration, there remains some question whether a second attempt will be made by incumbent officials to satisfy the court before January 20, 2017, or whether they will just capitulate and, consistent with the Obama Administration’s decision a few years ago to liberalize the procedure for allowing transgender people to change the sex designation on their passports, accept the reality of people who do not identify either as male or female and figure out a way to accommodate them on U.S. passports, as some other countries have done.   Otherwise, the task of responding to the court’s Order will be left to officials of the incoming administration.

Judge Jackson, previously a Colorado state court judge, was appointed to the federal bench by President Barack Obama in 2010, and was confirmed by unanimous consent of the Senate in 2011.