Judge R. Brooke Jackson of the U.S. District Court in Denver urged the federal government to eliminate or modify the choices available to citizens to designate their sex on American passports. Having to choose either “Male” or “Female” on an application for a passport was a dilemma for Dana Zzyym (Zimm), a Navy veteran who reportedly was born with ambiguous genitalia. Zzyym identifies as “intersex”: neither male nor female, and prefers to use gender-neutral pronouns “they” and “them.”
Zzzyym sued the Department of State when it declined to allow him to use “X” as a sex marker. A resident of Fort Collins CO, Zzyym says the federal government violated Constitutional guarantees of due process rights and discriminated against Zzyym based on gender. His lawsuit names Secretary of State John F. Kerry as a defendant, while alleging that to get a passport, Zzyym would have had to lie under penalty of perjury. He is represented by Paul Castillo of Lambda Legal – a law firm that advocates a gay political agenda.
Citing pending litigation, the U.S. State Department declined comment.
Arguments were presented on July 20 in the Denver U.S. District Court, from which a decision is pending. According to attorney Castillo, “Dana, a U.S. veteran and American citizen, refused to lie and subject themself (sic) to a criminal penalty in order to complete a government form,” according to a report in Yahoo News. Castillo claims that the passport was denied on the basis of “who Dana is.”
It was in 2014 that Zzyym applied for a passport so as to attend the International Intersex Forum in Mexico City. When Zzyym applied, a birth certificate was provided that lists the sex as “unknown,” in addition to statements from Department of Veterans Affairs doctors confirming that Zzyym is intersex. The Yahoo report used the pronoun “they” and “their” when referring to Zzyym: “In an interview, Zzyym said Zzyym presented a VA identification card, which does not list a gender, as well as a personal letter stating their gender identity, but still was denied.”
The 58-year-old Zzyym was born in Michigan, where physicians initially left his sex designation blank on the birth certificate. According to papers filed with the court, Zzyym’s parents decide to raise him as a boy named Brian Orin Whitney. The birth certificate was filled in as “male.”
Zzyym received numerous surgeries that he said left scarring and pain. He said that his parents did not explain the surgeries. Later on, he enlisted in the Navy and completed four tours of duty in Lebanon and the Persian Gulf.
Once he left the military, when a Veterans Affairs urologist confirmed Zzyym’s intersex identity, he legally changed his name to Dana Alix Zzyym in 1995. Living as a woman “was not right either,” the lawsuit states, so in 2012, Zzyym amended the sex designation on his birth certificate to “unknown.”
Since 2010, the State Department has allowed citizens who have completed clinical sex re-assignment treatment to list the sex corresponding with their identity on their passports with a doctor’s statement. Those who are still in the process of re-assignment can be issued temporary, two-year passports. Australia, Nepal, and New Zealand and others allow applicants to mark their sex as “X” or “other” on their passports.
The State Department said in court filings that current policy dictates that passport applicants check male or female. “Allowing passports with sex markers other than ‘F’ or ‘M’ would compromise the department’s efforts to prevent identity theft and passport fraud by upending the department’s long-established system for validating the identity and citizenship of passport applicants and requiring the department to rely on less reliable and less uniform identification documents,” the government argued.
Additionally, when Zzyym applied for a passport, he presented a Colorado driver’s license that lists the driver as female, according to the State Department. Attorney Castillo said his client unsuccessfully tried to change that designation, too.
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