Zzyym v. Kerry

The Administrative Procedure Act (APA), a federal law governing the way in which federal agencies develop and issue regulations, required courts to set aside federal-agency decisions that were arbitrary, capricious, or otherwise not in accordance with the law. Dana Alix Zzyym (plaintiff), an intersex individual, applied for a United States passport. Dana did not mark the box for female or male on the application form, instead writing intersex below the boxes. Dana submitted a separate letter explaining this decision and requesting an “X” as a marker in the sex field, in conformance with the International Civil Aviation Organization’s standards for travel documents. The State Department (the department) denied Dana’s request solely on this basis, explaining that, per its own policies, it could only issue passports with either male or female listed in the field for sex. Dana appealed the department’s decision, but the department denied her appeal. Dana subsequently filed a suit against Secretary of State John Kerry (defendant), alleging violations of the APA and the Due Process and Equal Protection Clauses of the Fifth Amendment. Dana sought a writ of mandamus compelling the department to issue a passport reflecting Dana’s intersex status. The department advanced a number of arguments in defense of its decision, including the importance of ensuring that its information remained consistent with information in law-enforcement databases.