Constitutional Law

Intersex navy veteran sues over US passport denial

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US passport

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An intersex U.S. Navy veteran who lives in Fort Collins has filed a federal lawsuit against Secretary of State John Kerry and a Colorado state official. It alleges that they violated the plaintiff’s constitutional rights by refusing to issue a U.S. passport to a person who cannot accurately claim to be either male or female.

The discrimination suit was filed Sunday in Denver, Colorado, on behalf of Dana Alix Zzyym, 57, by a California law firm. It says “defendants lock Dana within the confines of our nation’s borders with no legal means to depart the United States” and infringe on the plaintiff’s fundamental rights and liberty interests by refusing to issue a passport to an individual who does not identify as either male or female.

A copy of the complaint can be found on Pacer (sub. req.).

It says the refusal to provide ZZyym an “other” box to check with an X on the passport application, along with “male” and “female,” violates the federal Administrative Procedure Act, in two ways: First, the government’s position is arbitrary and capricious, the suit alleges. Second, refusing to include the “other” box exceeds officials’ power and authority under the statute.

The suit also alleges due process and equal protection violations. It seeks a writ of mandamus requiring the government to provide and process a passport application that accurately reflects the plaintiff’s sex as neither male nor female, as well as attorney’s fees and costs.

“Intersex people are born with sex characteristics that do not fit typical binary notions of bodies designated male or female,” the suit notes.

Zzyym, whose condition was recognized at birth, originally had a birth certificate with the gender section left blank. Then surgery was performed and the plaintiff was listed on the birth certificate as male and named Brian Orin Whitney. In 2012, the birth certificate was again amended to reflect Zzyym’s gender as unknown, the suit says.

A Denver Post article on the lawsuit doesn’t include any comment from either Kerry’s office or the office of director Sherman Portell of the Colorado Passport Agency, the other defendant in the case.

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