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Zzyym v. Pompeo

No. 18-1453. D.Colo. Judge Bacharach. Passport Requirements—Gender Identification—State Department Statutory Authority—Administrative Procedures Act—Arbitrary and Capricious Standard.

May 11, 2020

Plaintiff, an intersex individual, applied for a US passport. Rather than checking the box for male or female, plaintiff wrote “intersex.” To support this identification, plaintiff supplied a letter requesting an “X” sex designation and a physician’s letter stating that plaintiff is intersex. Plaintiff also provided the State Department with the amended birth certificate identifying the sex as unknown and a Colorado driver’s license identifying the sex as female. The State Department denied plaintiff’s application based on the binary consideration of everyone as either male or female.

Plaintiff sued, arguing that the binary sex policy exceeded the State Department’s statutory authority, was arbitrary and capricious under the Administrative Procedures Act (APA), and violated the US Constitution. The district court concluded that the State Department violated the APA because adherence to the binary sex policy exceeded its statutory authority, and its application of the policy to plaintiff was arbitrary and capricious. The court did not reach plaintiff’s constitutional claims. On remand, the State Department retained its policy and again denied plaintiff’s application for a passport with an “X” designation. The district court again concluded that the State Department violated the APA and issued a permanent injunction against enforcement of the binary sex policy as to plaintiff.

The State Department appealed, arguing it did not exceed its statutory authority by enforcing its binary sex policy against plaintiff. The Passport Act is silent about the State Department’s authority to deny a passport to applicants who do not identify as male or female. The US Supreme Court has analyzed other challenges to the State Department’s authority to deny passports for reasons that are not listed in the Passport Act by considering past administrative practice and congressional acquiescence. The Court has held that the Passport Act’s language is permissive, authorizing the State Department to deny passports for reasons not expressly listed in the Act. And when the State Department has consistently restricted passports on a certain basis, courts assume that Congress has acquiesced if it has not legislated on the subject. Here, the State Department has followed a binary sex policy for 39 years, and Congress has not acted. Thus, the State Department had statutory authority to deny plaintiff a passport for failing to identify as a male or female.

However, the State Department’s reliance on its binary sex policy was arbitrary and capricious because three of its five reasons for relying on the policy were unsupported by the administrative record: the policy ensured the accuracy and reliability of US passports, no medical consensus existed on how to determine whether someone was intersex, and creating a third designation for sex (X) was not feasible. While two of the proffered reasons for relying on the binary sex policy, that it helped identify individuals ineligible for passports and made passport data useful for other agencies, were supported by the record, the Tenth Circuit had no way of knowing whether the State Department would still have relied on the binary sex policy if it was limited to the second and third reasons.

Plaintiff argued that the State Department had to consider the alternative of a third sex designation before deviating from international standards. However, the State Department considered those standards, and its reliance on the binary sex policy conformed to those standards.

The entry of judgment for plaintiff and the issuance of a permanent injunction were vacated. The case was remanded with instructions to vacate the State Department’s decision and reconsider the application for an intersex passport.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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