Who should be issued a US passport? And, what information should be listed on that passport? The issuance of a US passport is a privilege. The Department of State issues passports to United States citizens who complete an application and establish that they qualify for the passport. Anyone who fails to establish their US citizenship (either by birth or parentage), owes back child support in excess of $2,500, is a threat to national security, or has other disqualifying factors, will be denied a passport. Apart from the fact of whether the person is a United States citizen, disqualifying factors typically are not immutable characteristics, meaning that the person who is disqualified can take some action to clear their eligibility. For example, a person who owes back child support can pay their child support and remove the disqualifying factor.
Dana Zzyym is a United States citizen by birth on US soil. Dana was born intersex, with "ambiguous external sex characteristics." The sex field on Dana's birth certificate was initially left blank. Dana's parents and doctor later decided that Dana would be raised as a boy, and Dana's birth certificate was changed to indicate that Dana was male. Multiple surgeries were performed on Dana at a very young age to conform Dana's body to this decision, and Dana was apparently raised unaware of having been born intersex. As an adult, Dana served six years in the U.S. Navy, including four overseas tours of duty in the middle east.
Throughout Dana's life, Dana experienced physical pain and gender identity confusion. Finally, in 2009, Dana found a doctor who recommended various medical interventions to reduce the pain, and in 2011, came to terms with and began living as a intersex person. Dana began working for the Organisation Intersex International, and in 2014, was invited to attend a conference in Mexico as part of Dana's work.
Dana applied for a US passport to be able to travel to the conference. On the passport application, Dana completed the sex fieldwith "intersex," submitted an addendum to explain that Dana is neither male nor female, and requested that field be listed as "X" in conformance with United Nations guidelines on machine-readable passports. Dana later provided additional evidence to establish her claim. On December 29, 2014, the Colorado Passport Agency denied Dana's passport application, on the basis that it was unable to accommodate Dana's request for a "X" to be listed in the sex field on Dana's passport. A request for reconsideration was denied.
Dana has now filed a lawsuit against the Department of State with the United States District Court for the District of Colorado, arguing that DOS acted arbitrarily and capriciously, with no reasoned explanation of its decision, that DOS is engaging "in an unlawful practice of imposing an inaccurate gender marker on a United States passport for people such as Plaintiff who identify as neither male nor female," that DOS has infringed on Dana's right to international travel, freedom of movement, and individual dignity and autonomy, and that DOS has deprived Dana of equal protection under the law. The Complaint requests a declaratory judgment that DOS has acted in an arbitrary and capricious manner, that DOS be restrained or enjoined from relying on its binary-only gender marker on US passports, and that Dana's passport application be processed in a nondiscriminatory manner.
Should DOS require applicants for US passports to list either male or female on a passport application? Should there be an 'other' category? Other countries do include an 'other' category on passports. For example, Australia allows "sex and gender diverse passport applicants" to chose male, female, or indeterminate/intersex/unspecified on its passport application. New Zealand and Nepal have done likewise. It would seem that the purpose of including a sex field on a passport would be to aid in verifying that the individual presenting that passport was in fact the individual issued that passport. Accurately identifying the sex of the person issued the passport, including where the person is intersex, would assist that process and enhance the security of the passport. As alleged in Dana's Complaint, including an 'other' category would provide due process to intersex persons, a fundamental right guaranteed to all United States citizens by our Constitution. Apart from an inertia argument (a 'this is the way we've always done it' mentality), I find it difficult to identify reasons for not accurately listing a person's sex on their passport. Please share your thoughts in the comments section!