Checking the male or female box on a piece of paper is privilege many of us go our entire lives taking for granted. But for Dana Zzyym those two boxes act as a constant reminder that gender neutrality is not a socially recognized option in the United States. Now Zzyym hopes to raise awareness and compel change by suing the U.S. government for denying people the right to select “X” as an option on U.S. passports.

‘We exist’: Navy veteran Dana Zzyym sues State Department for denying ‘intersex’… https://t.co/nS2ZYCmsKi #UniteBlue pic.twitter.com/oQ7rF7eu4a

— The Progressive Mind (@Libertea2012) October 27, 2015

Lambda Legal, an LGBT civil rights group, filed the lawsuit Monday on behalf of Zzyym, stating that the U.S. State Department and Colorado Passport Agency denied Zzyym fundamental rights “including the freedom of travel” by not recognizing gender identity beyond male and female.

Zzyym, 57, was born with ambiguous genitalia, and therefore has chosen neither to identify as female or male, but as intersex. So for purposes of this article I will use the gender-neutral pronouns “they,” “their,” and “them” when referring to Zzyym.

It took Zzyym over four decades to understand that the conflicting feelings they had experienced relating to gender dated back to birth, and that their parents had tried to hide their non-binary biology with painful irreversible surgeries to make them pass as male. After exploring both genders and even having female genital surgery,  the Navy veteran chose to change their name from Brian Orin Whitney to Dana Alix Zzyym, and went on to became an outspoken activist for the intersex community.

According to BuzzFeed, in September 2014 Zzyym went to their local Denver, Colorado passport agency to apply for a passport in order to travel to Mexico City to attend the International Intersex Forum they’d been asked to speak at. Zzyym arrived with all the necessary documents, including a letter explaining that they were intersex, and requested to use “x” as a marker for gender. But a couple weeks later they received a letter from the State Department saying it was unable to fulfill their request, and that in order to move forward it needed to either “(a) relieve a passport listing Dana as female, (b) receive a passport listing Dana as male, or (c) withdraw Dana’s application.”

The request came as a blow for Zzyym, especially when countries like Australia, India, Malta, Nepal, Germany, and New Zealand all issue passports with alternative gender markers to the standard “M” or”F.” Lambda Legal staff attorney Paul Castillo told BuzzFeed News,

Foreign nationals who have the X marker on their passports are permitted to enter U.S. and yet we’re denying the same rights to own citizens. When you are allowing foreign nationals more rights than you do your own citizens with respect to the same document, there has to be something wrong.

Instead of seeking any monetary compensation, Zzyym is asking simply for a policy change that would allow them to exit the country with a gender label of their choosing. But if we use the nation’s responses to other LGBTQI issues as predictor of the outcome, we can expect a long time before Zzyym and other intersex citizens are rewarded with equal rights.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

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After 13 years, the Supreme Court has reversed a controversial law passed by Congress back in 2002.  The issue with the law is that it gave American citizens born in Jerusalem the option to list Israel as their official country of birth on their American passports and birth certificates. Seeing that the recognition of foreign nations is entirely a political policy condition, the Supreme Court has decided that Congress should never have had the authority to make a law of recognition as they did in 2002 and therefore have struck it down, leaving powers of recognition to the president.

The outdated law previously stipulated that:

For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.

The law reversal stems from the prominent Zivotofsky v. Kerry case. More than a decade ago, the Zivotofsky family filed suit against the ­­­­­­State Department after they were denied the option to list Jerusalem, Israel as the place of birth for their newborn son.

While under the separation of powers Congress does indeed play a vital component in making laws, major decisions on  nation recognition has historically been left to the Executive branch. Looking back at  precedent, it should be noted that the Supreme Court has allocated the power and exclusivity of recognizing a nation as being a privilege exclusively for the President.

The president has taken those absolute measures as a result of Congress accepting the recognition of power as exclusive of his office, and at times even defending the President’s constitutional prerogative. Additionally, the Executive branch often has access to confidential information that the legislative branch does not.

Foreign sovereignty expert Juan Basombrio, who is the Co-Chair of Dorsey & Whitney’s International Law Group, commented on the Supreme Court’s decision in a press release saying:

Expressly recognizing that the status of Jerusalem is ‘a delicate subject,’ the Supreme Court has relied on Separation of Powers principles to strike-down a United States statute, enacted by Congress in 2002, which conflicted with State Department policy.  The Supreme Court has held that the question of who has sovereignty over Jerusalem must not be decided by the Congress or the Courts, but is within the purview of the Executive Branch, which has indicated that this is a matter to be resolved ‘not unilaterally but in consultation with all concerned.’  Today’s decision confirms former President George W. Bush’s statement, at the time of enactment of the referenced statute, that ‘U.S. policy regarding Jerusalem has not changed.’

Monday’s decision marks the end of an era of uncertainty over the loophole in the conflicting law that enabled American citizens born abroad to claim Israel as their country of identity. Basombrio makes a valid claim as he states that the decision should not involve American courts or Congress, granted that there are other political actors and nations involved; therefore the argument and decision should always remain with the Executive branch.

This decision is important because it demonstrates to the citizens of Jerusalem, as well as the rest of the world, that the U.S. will not be dragged into the identity crisis. Whereas the U.S. is often known for mediating terms between other nations, this time that is not the case. In reversing a 13-year clause, the Supreme Court has sent a message to Israel that the U.S. has no interest in intervening until the nations involved in the identity dispute resolve their issue.

Symon Rowlands

Symon Rowlands is a member of the University of Miami Class of 2016 and was a Law Street Media Fellow during the Summer of 2015. Symon now blogs for Law Street, focusing mostly on politics. Contact Symon at staff@LawStreetMedia.com.

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