Colorado AG Weiser Says Passports Should Include Nonbinary Gender Markers

· May 15, 2019, 6:43 pm
Photo: Phil Weiser MLK Day 2019 HV
Colorado Attorney General Phil Weiser at the 2019 Martin Luther King Day Marade in Denver on Jan. 21.

Colorado Attorney General Phil Weiser is leading a coalition of his peers to support including nonbinary gender designations on U.S. passports.

The group says individuals who do not identify as male or female deserve full legal recognition of their gender identity on passports issued by the State Department.

Weiser and attorneys general from eight other states filed a brief Wednesday in a federal court case involving Fort Collins resident Dana Zzyym. Zzyym, who uses “them” and “their” pronouns, was denied a passport in 2015 after they did not choose a gender on their application.

In a brief filed with the U.S. Court of Appeals for the Tenth Circuit in Zzyym’s case against the federal government, the attorneys general said the State Department says it is trying to avoid “matching issues” between federal and state identification documents. However, multiple states, including Colorado, issue driver licenses with the nonbinary designation X instead of M or F for male or female.  

“Providing nonbinary identification documents in our state is easy to manage, respects our citizens’ gender identity, and is the right thing to do,” Weiser said in a news release. “The federal government needs to catch up with the states that are leading the way when it comes to equality. All Americans should be able to obtain a passport that accurately reflects their gender.”

Weiser is joined by the attorneys general of California, Maine, Minnesota, Nevada, New Jersey, Oregon, Vermont and Washington.

Photo: Gender US Passports | Dana Zzyym - APDavid Zalubowski/AP
Dana Zzyym, of Fort Collins, Colo., talks about the arguments in a hearing on Zzyym's lawsuit requiring people to pick a gender to get a passport outside the U.S. Federal Courthouse in Denver, July 20, 2016.

In 2016, a federal judge asked the State Department to reconsider its refusal to issue a Zzyym a passport, but the department again denied their application.

In September 2018, the U.S. District Court for the District of Colorado decided officials cannot deny a passport application based solely on a person’s refusal to select male or female as their gender.

The federal judge said the State Department’s varied explanations for rejecting the application weren’t reasonable and that the decision as “arbitrary and capricious.”

That ruling is limited, but advocates said they hope it leads to expanded gender choices on federal identification.

The agency can legally reject passport applications for a good reason, but “adherence to a series of internal policies that do not contemplate the existence of intersex people is not good reason,” the judge wrote.

The State Department said in a written statement at the time that it was reviewing the decision and coordinating with the Department of Justice on next steps.

The September ruling only applies to Zzyym, but Lambda Legal senior attorney Paul Castillo called it a “groundbreaking, first-of-its-kind” challenge to limited gender options on federal identification.

“I’m not going to lie on my passport application, I shouldn’t have to, and the judge here, twice, has agreed with me,” Zzyym said in a statement released in September by the LGBT civil rights organization.

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