Judge Rules Nonbinary Traveler Can't Be Denied U.S. Passport for Refusing to Choose a Gender

A federal judge ruled on Wednesday that the State Department cannot deny a traveler’s passport application over refusal to select a gender.

Dana Zzyym, who identifies as nonbinary, sued the State Department in 2015 after being denied a passport for marking “X” as their gender. After battling the application in a federal court in Colorado for several years, U.S. District Judge R. Brooke Jackson ruled that the State Department’s refusal was “arbitrary and capricious,” the Associated Press reported.

“Adherence to a series of internal policies that do not contemplate the existence of intersex people is not good reason” to deny someone’s passport application,” Jackson wrote in the ruling.

In 2016, a judge ordered the State Department to reconsider the application. Zzyym applied again, still refusing to select either gender, as they thought either of the answers would be untruthful. Even after Zzyym provided medical records proving themself to have been born intersex, the State Department denied the passport application.

Zzyym, who currently serves as the associate director for the Organisation Intersex International (OII-USA), released a statement, saying, “I’m not going to lie on my passport application, I shouldn’t have to, and the judge here, twice, has agreed with me.”

The State Department said in a statement that it was reviewing the decision and would coordinate with the Department of Justice on next steps. Although the decision applies only to Zzyym, some legal analysts have already called it groundbreaking.

A number of states — including California, Oregon and Washington — allow residents to mark “X” as their gender for driver’s license and state ID applications.

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