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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.


Historic Intersex/DSD Lawsuit Survives Dismissal Motion

Posted on: September 18th, 2013 by Art Leonard No Comments

What may turn into the first major United States legal precedent on the constitutional due process rights of persons born with “disorder of sexual development” (DSD) has survived an initial hurdle of a motion to dismiss.  In an as-yet unpublished written opinion issued on August 29 (and brought to my attention by an op-ed by Riki Wilchins posted on the website today, September 18), U.S. District Judge David C. Norton (D. South Carolina) denied motions to dismiss filed by several state employees who allegedly played a role in having sex reassignment surgery performed on M.C., then 17 months old, rejecting at this point their argument that they were entitled to qualified immunity against liability under 42 U.S.C. sec. 1983.   Qualified immunity against liability for the performance of discretionary functions is extended to public employees when their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” according to the Supreme Court’s ruling in Harlow v. Fitzgerald, 457 U.S. 800 (1982).

A copy of the court’s opinion can be found on the website of Advocates for Informed Choice (formerly known as the Intersex Society of North America),

According to Judge Norton’s brief summary of the factual allegations (which are taken to be true in deciding a pretrial motion to dismiss a complaint), M.C. was born on November 20, 2004, in Greenville, SC, with the medical condition “ovotesticular difference/disorder of sex development,” which in this case manifested itself by the presence of both ovarian and testicular tissues.  In other words, doctors could not easily determine whether this newborn infant would identify as male or female later in life, but there was some ambiguity about the child’s sex.  “Physicians who evaluated M.C. in the first months and years of his life determined that, with surgery, the child could be ‘raised, surgically reconstructed, and treated to be male or female.'”  M.C. was a premature baby and remained in the hospital until February 2005.  A week after he was sent home, his parents decided they did not want him, and notified the Department of Social Services of their wish to relinquish parental rights.  M.C. then became a ward of the state, living in various foster settings until he was placed with the couple who eventually adopted him, Pamela and John Mark Crawford, who brought this lawsuit on his behalf.

While he was in state custody, M.C. was further evaluated by some of the named defendants, all medical specialists, and they recommended to DSS officials “that M.C. undergo sex reassignment surgery in order to make his body appear female.”  In other words, this child, who might ultimately identify as male once he became old enough to develop a gender identity, would be surgically rendered female — including terminating his physical capacity to function sexually and reproductively as male by removing the phallus and testes.  DSS officials accepted the recommendation and instructed M.C.’s then-foster family to deliver him to the hospital where surgery was performed.  When the Crawfords subsequently received and adopted him, state officials instructed them to raise him as female.  But M.C. refused to be female.  According to the complaint, M.C.’s “interests, manner and play, and refusal to be identified as a girl indicate that his gender has developed as male,” and now he is living as a boy “with the support of his family, friends, school, religious leaders, and pediatrician.”  But, due to the surgery performed when he was an infant, he will never be able to function sexually as a male due to the missing penis and will not be able to procreate, due to the missing testes.

The essential claim in this lawsuit is that the state officials – medical personnel and social service personnel – who collaborated on this case violated M.C.’s constitutional rights by making this decision for him.  This goes to the most essential claim of the movement for constitutional rights for people born with the DSD condition: that they should be entitled to be raised without surgical interference until they have identified their gender identity, whatever that may be, and are old enough and mature enough to decide for themselves whether they desire surgical alteration, being sufficiently informed about the consequences of such surgery.

In the complaint, M.C. asserts that he suffered a deprivation of liberty without due process of law.  The court does not go into any detail about how M.C.’s procedural due process rights could have been protected, since that issue was not presented in ruling on this motion, but it seems clear, in light of the substantive liberty interests at stake, that the DSS officials should have petitioned a court for authorization to perform this operation, and the judge should have appointed a guardian ad litem with authority to research the medical and legal issues and present a well-informed argument to the court bolstered by qualified expert testimony.  The movement for DSD rights, currently advanced by an organization called Advocates for Informed Choice (, argues that such surgery on infants is not medically necessary and should not be performed without the informed consent of the individual once the individual has become capable of identifying his or her gender identity and weighing the consequences of surgical change.  A court weighing this evidence would have to take into account that the Supreme Court has identified procreation as an important aspect of the liberty protected by the Due Process Clause, so public officials could not take an action that would terminate an individual’s procreative capacity without a strong justification.  According to Judge Norton, the 4th Circuit Court of Appeals, whose rulings would be binding in his court, “have determined that forced sterilization, while not categorically unconstitutional, implicates significant due process concerns.”  Exactly what level of judicial review would apply to such a case is not totally clear, but certainly some showing of medical necessity would be required to justify a surgical intervention with these consequences.  And it is the position of the DSD rights movement that there is no medical necessity in most cases to perform sex reassignment procedures on infants, if there is no indication of an immediate harm to the health and well-being of the child.  A court would have to weigh the evidence and consider the arguments and then make a decision that would be in the best interest of the child.

In moving to dismiss, the various defendants claimed qualified immunity in that there are no reported cases, much less definitive appellate decisions, that would support the claim that an established federal statutory or constitutional right was violated in this case, so they could not be held to have exceeded their discretion in having the procedures performed.  But Judge Norton found that there is a substantial body of cases from the Supreme Court on down concerning procreative rights and personal autonomy (i.e., bodily integrity).  We clearly require informed consent from individuals or their legal representatives before elective surgical procedures that can have life-altering impact, such as sex reassignment surgery performed in this case.  The defendants claimed that M.C.’s birth parents had consented, but Judge Norton dismissed that for the nonsense that it is – there is no record that the birth parents actually consented, and they actually agreed to termination of their parental rights long before the doctors made their recommendation for this procedure.

Judge Norton found that “M.C. has articulated that defendants violated his clearly established constitutional right to procreation.  As a result, defendants’ assertion of qualified immunity must fail at this stage in the litigation.”  The judge wrote that because of this ruling, it was not necessary, at this stage of the proceedings, to determine whether M.C. had also stated a claim for violation of the rights of privacy and bodily integrity.  He also found that M.C.’s procedural due process claim was plausible as pleaded in the Complaint, which asserts that the medical defendants chose “to perform the surgery and potential sterilization without requesting, initiating, or inquiring as to a pre-deprivation hearing,” and charges that the DSS officials “knowingly permitted and authorized the medically unnecessary sex reassignment surgery in violation of M.C.’s procedural due process rights.”

In addition to dismissing the qualified immunity motions by the defendants, Judge Norton granted an expedited discovery motion by M.C., aimed at determining the identity of several as-of-yet unidentified potential defendants who played a role in the medical procedures.  The clock is ticking on serving them with complaints, and Judge Norton readily granted the motion.

This motion was an important preliminary hurdle, and the judge’s opinion makes clear that he believes significant constitutional rights are in play in this lawsuit.  However, to prevail on the merits, M.C. will have to be able to prove by a preponderance of the evidence that performance of these procedures on him at 17 months was medically unnecessary, and so far no U.S. court has passed on this hotly-disputed question.  Since plastic surgery became possible in the mid-20th century, many doctors have treated the birth of an infant with DSD as a medical emergency and urged parents to consent to surgical procedures which, in the case of children born with the capacity to develop male sexual function, almost invariably means making that impossible for them.  In addition, as intersexuals have argued, the resulting scar tissue and loss of sensation from these procedures limits or prevents their ability to have a satisfactory sexual life whether as female or male, and they urge that the decision should be left to the individual when they come of age to be able to make it.

The court never mentions Lawrence v. Texas, the U.S. Supreme Court’s 2003 sodomy decision, in its ruling, probably because it focused solely on the procreation argument and never got to the liberty/autonomy argument, but surely it would be inconsistent with the Supreme Court’s reasoning in Lawrence to fail to accord substantial protection to an individual’s ability to make such a personal decision as this without interference by the state, and even to hold that a parent should not be able to consent to such procedures unilaterally without an appropriate hearing process when a child is too young to weigh in with his or her desires.  The rapidly developing case law on the right of transgender prison inmates to receive appropriate medical treatment for their gender dysphoria under the 8th Amendment would also contribute to this argument about personal autonomy.