By Keith Coffman
DENVER (Reuters) – A federal judge on Tuesday agreed to review the constitutionality of a U.S. State Department policy of refusing to grant passports to people who identify as neither male nor female.
In November, U.S. District Judge R. Brooke Jackson directed the State Department to reconsider its “binary-only gender passport policy,” in the case of Navy veteran Dan Zzyym, an “intersex” Colorado resident who sued the federal government for refusing to issue a passport because it requires an applicant to denote either male or female gender.
After conducting its court-ordered review, the State Department last month again denied Zzyym’s application, according to a motion filed on the plaintiff’s behalf by the Lambda Legal Defense Fund asking Jackson to reopen the case.
In his original order to the State Department, Jackson declined to consider constitutional questions raised in Zzyym’s lawsuit unless the issue could not be resolved administratively.
Zzyym, born in 1958, sued in 2015 after being denied a passport to travel to Mexico for an international conference of intersex people – those born with anatomies that do not fit the typical definition of male or female.
The lawsuit claims the State Department’s policy violates due process and equal protections for Zzyym and other intersex people.
Zzyym was raised as a boy and underwent several irreversible, painful and medically unnecessary surgeries before joining the U.S. Navy as a male, according to the lawsuit.
It was only after returning to civilian life after six years in the military that Zzyym realized there were others who did not fit into traditional gender categories, the lawsuit says.
The government did not oppose Tuesday’s motion by Zzyym and on Tuesday Jackson agreed to revive the case.
A spokeswoman for the State Department’s Bureau of Consular Affairs said the agency does not comment on pending litigation.
Zzyym, associate director for the Intersex Campaign for Equality, said in a statement that the government “is in effect forcing me to lie about who I am and I’m not going to do that.”
(Reporting by Keith Coffman in Denver; Editing by Steve Gorman and Bill Trott)