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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.