Intersex Coloradan Sues US State Department for Discrimination

Last October, Fort Collins resident Dana Zzyym — a Navy veteran and outspoken advocate for intersex visibility and equality who prefers the pronouns they, them, and their — was invited to an international forum on intersexuality in Mexico City. Naturally, they accepted and set out applying for a US passport. The process seemed simple enough until Dana landed in the dreaded gender-marker territory with only two choices: male and female, both of which would be inaccurate (not to mention criminal) selections.

“If I remember right, I wrote an ‘I’ between those two boxes and a letter saying I am intersex and I want an X marker on my passport,” the stylishly mohawked Dana told their audience during a Lambda Legal press conference in Denver. “I submitted that [letter] along with my application.”

First-time applicants are also required to provide their birth certificate which comes as no help for Dana, either — the gender section of their birth certificate is marked “unknown.”

The United States veteran, who completed four tours of duty as a machinist mate with the US Navy and was confirmed as intersex through a urologist with the VA many years later, was denied a United States passport. In its place, the State Department sent a letter stating that Dana had three options going forward: receive a passport listing Dana as female; receive a passport listing Dana as male; or to withdraw the application altogether.

Dana then made an appearance at the Colorado Passport Agency CPA) to present more documentation on their intersex status, and requested the intersex classification of X be allowed on their passport. Because it’s illegal to “willfully and knowingly make any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority of the United States, either for his own use or the use of another,” Dana wanted to make extra certain not to play subject to potential civil and criminal sanctions. The response from CPA? Another letter stating that because “the Department of State requires the sex field on United States passports to be listed as ‘M’ or ‘F,'” Dana’s request for the X marker is once again denied.

Dana requested a hearing, and was rebuffed once again — this time with a letter of finality. The matter, according to CPA, was over.

And so today, on Intersex Awareness Day, Lambda Legal has filed a federal discrimination lawsuit against the US State Department on Dana’s behalf.

“It’s very easy for the US government to accurately identify Dana as who they are, and no person throughout the country should have to compromise their own identity to be able to travel,” Paul D. Castillo, lead attorney in the case, told Out Front earlier this morning. “Those are rights guaranteed by the US Constitution.”

In the legal hotseat are Secretary of State John Kerry and Director of the Regional Passport Agency (located in Aurora, CO) Sherman D. Portell. Both are being sued in their official capacity.

An obvious question is how Dana was able to travel during their service in the military. “When you’re under orders of the military, [travel] is a different process — Dana didn’t need to secure a passport,” Paul affirmed. “But now, as a civilian, Dana is required to obtain a passport in order to leave the United States lawfully.”

“I didn’t know anything about intersex at that particular point in time,” Dana said of their identity during the Navy years. “[Male] is how I identified because I didn’t know any better. I knew I was different, I just didn’t know in what way.”

Currently, Australia, India, Malta, Nepal, and New Zealand allow for gender markers outside the male and female binary.

“The thing that’s particularly ironic here is that the United States government in fact is allowing foreign nationals with an X marker on their passport to enter the US,” Paul said. “Now we are seeing citizens of foreign countries across the world being able to enter and exit [the US] freely while our own citizens who can’t accurately identify on their passports are basically on nationwide house arrest.”

He added: “The X marker designation that’s been provided by international standards has existed for a long time. There’s always been an alternative with respect to travel documents letting a person identify as other than male or female. In fact, many countries have utilized that for intersex and other gender-diverse individuals. The United States has limited those options and are asking people who are gender diverse or who don’t identify as male or female to compromise their own identity in order to be able to travel. Dana shouldn’t have to choose.”

“I was raised male and I tried to live a male life even though I knew it was wrong for me,” they said. “I tried my best.”

“This is clearly a right of self-expression, autonomy, and identity, and the United States government has no business making a person sacrifice their own identity merely for the freedom of movement,” said Paul. “But the bigger [issue] is that this is an identity document, and there are other ways of identifying a person’s identity — including with their photograph. That begs the question of whether a marker is even necessary on a United States passport or any government identity. The government can accurately identify the person based on the photograph and other metrics embedded within the passport, so there’s a mechanism already in place.”

Dana says reactions to the case have been mixed. “Some people aren’t ready to have this kind of marker, but the real issue is that it’s a choice to have the marker on your passport or not. This is my choice to have my marker to self identify, and anyone else can choose that if that’s how they identify. Most of the community is very supportive. The rest will probably will come aboard.”

“I’m not going to speculate,” Paul said when asked whether he thinks this will be a tooth-and-nail fight from the state. “We’re hopeful that this is just a process of raising awareness to the United States government that this is a problem for citizens who don’t identify as male or female, and that we can work with them quickly to provide a resolution. That way, Dana and others like Dana can travel and exercise the right to travel while not compromising their identity.”

So is Dana’s ideal solution an X marker? “There are a lot of options out there: Nepal has an O for other; I think I just saw an E out there, but I’m not sure what that stands for; there’s the X,” Dana said. “I’d like to see an N for non-binary or something like that, but the X is fine at this point.”

They say it’s mostly about “getting my passport and making sure they’re available to intersex persons or non-binary people.”

As a child, Dana endured many painful, invasive, and unnecessary surgeries that left them with permanent damage and scarring in unsuccessful attempts to conform them to a traditional binary standard. They hope that the end of the long trend of misunderstanding, invisibility, and discrimination is closer with the success of this court case.

“My strength comes from all the adversarial things I’ve gone through in my life,” they said. “It’s given me the strength to be here today and fight for my rights.”

Out Front will update as the story unfolds.