Zzyym v. Pompeo

Dana Zzyym (plaintiff) was an intersex individual born with both male and female somatic characteristics, meaning that Zzyym was born with both male and female external genitalia. Because Zzyym’s parents decided to raise Zzyym as male, Zzyym’s birth certificate identified Zzyym as male. As an adult, Zzyym experimented with living as a woman but ultimately chose to identify as a nonbinary intersex person. Zzyym obtained an amended birth certificate listing Zzyym’s gender as “unknown.” Zzyym subsequently applied for a passport from the State Department (the department) (defendant). The passport application required Zzyym to check a box identifying Zzyym as male or female. Because Zzyym was nonbinary and intersex, Zzyym did not check either box but instead requested to be identified as intersex and to have the passport gender marker be an X. Zzyym’s application was supported by a doctor’s letter and Zzyym’s amended birth certificate, which listed Zzyym’s sex as “unknown.” The department denied Zzyym’s application, stating that, under the department’s binary sex policy, Zzyym must identify as either male or female in order to obtain a passport. After Zzyym’s application for reconsideration was denied, Zzyym sued the department, arguing that it was arbitrary and capricious for the department to enforce the binary sex policy against unquestionably intersex individuals like Zzyym. The department countered, arguing that (1) because most states enforced a binary sex policy, the department needed to do the same to ensure state documents could be relied on to accurately identify passport applicants; (2) the binary sex policy ensured passports were accurate; and (3) adding a third sex designation, as Zzyym requested, would be costly and burdensome. The district court ruled for Zzyym, holding that the department’s binary sex policy exceeded the department’s authority and was arbitrary and capricious as applied to Zzyym. The department appealed.