A federal judge in Denver ordered the U.S. Department of State to reconsider its denial of a passport to a Navy veteran from Colorado who identifies as neither male or female, court documents showed on Tuesday.
The ruling came in response to a lawsuit filed by Dana Zzyym, who was born with ambiguous sex characteristics, and had been attempting to travel to Mexico City for a meeting of intersex people - those born with reproductive or sexual anatomy that does not fit the typical definitions of male or female.
"I shouldn't have to suffer at the hands of my government," said Zzyym, who was born in 1958 and raised as a boy. Zzyym welcomed the ruling but said it was the first step in a long battle for rights of intersex people.
Zzyym's lawsuit, filed last year by the LGBTQ rights legal firm Lambda Legal Defense Fund in federal court in Denver, argued that the policy of requiring either a male or female designation on passport applications violated due process and equal protection rights for intersex people.
U.S. District Court Judge R. Brooke Jackson concluded in a 12-page ruling that the State Department’s “binary-only gender passport policy” did not follow a rational decision-making process and ordered officials to reconsider it. Jackson did not consider the constitutionality of the policy but kept the door open for doing so.
“The Court will not address the constitutional issues unless and until it needs to,” Jackson wrote.
A spokesman for the State Department’s Bureau of Consular Affairs said the agency is “not able to comment on current litigation.”
When Zzyym was born, the gender box on the birth certificate was initially left blank, according to the lawsuit. Zzyym’s parents later decided to raise the child as a boy named Brian Orin Whitney and "male" was added to the birth certificate.
Enlisting in the U.S. Navy in 1978, Whitney served for six years as a machinist mate, with three tours of duty in Beirut. After being discharged, Whitney determined the male gender identification was “arbitrary” and explored living as a woman but found that did not fit either, the lawsuit said.
Whitney ultimately adopted the name Dana Zzyym and was denied a passport while trying to travel to Mexico City for the International Intersex Forum in 2014.
“It’s a painful hypocrisy that, simply because I refused to lie about my gender on a government document, the government would ignore who I am,” Zzyym said.