State Department to Allow “X” Gender Marker on US Passports

US Court Orders Gender-Neutral Passport
Intersex advocate and US Navy veteran Dana Zzyym led a challenge to the State Department’s policy on gender markers for passports.
Lambda Legal

The US State Department will soon allow transgender, non-binary, and gender non-conforming individuals to list “X” on their passports. The agency has also tossed an outdated rule requiring trans applicants to provide medical documentation when identifying their gender on paperwork.

Under the proposed rule unveiled on June 30, the department acknowledged that some of the changes could take some time — but parts of it are immediate. The department said it is immediately allowing individuals to choose an “M” or “F” gender designation and waiving the medical documentation requirement, which previously stipulated that medical providers needed to attest to an applicant’s identity if their sex assigned at birth differed from their gender. Those who plan to list an “X” gender marker will need to wait, though a timetable on that is not yet available.

The proposed rule changes will also apply to Consular Reports of Birth Abroad (CRBA), a document that verifies US citizenship to children born abroad to US citizen parents. In May, the State Department did away with a policy banning citizenship rights for children of some binational same-sex partners. That policy pre-dated the Trump era but was aggressively defended by the Trump administration.

“In line with the Administration’s commitment to re-engage with allies and partners, the department is taking these steps after considerable consultation with like-minded governments who have undertaken similar changes,” Secretary of State Antony J. Blinken said in a written statement. “We also value our continued engagement with the LGBTQI+ community, which will inform our approach and positions moving forward.  With this action, I express our enduring commitment to the LGBTQI+ community today and moving forward.”

Intersex and non-binary US Navy veteran Dana Zzyym helped catapult this issue into the spotlight after they began petitioning the State Department in 2015 for a gender-neutral passport. The nearly four-year battle came to a head in 2018 when US District Judge R. Brooke Jackson in Denver sided with Zzyym and demanded that the State Department issue a passport accurately reflecting their gender. 

Six years later, Zzyym, who received support from the LGBTQ litigation group Lambda Legal, is celebrating the victory.

“I’ve been at this fight for so long,” Zzyym said in a written statement. “I am optimistic that, with the incredible support and work of Lambda Legal and the Intersex Campaign for Equality, I will soon receive an accurate passport — one that reflects who I truly am; and that will allow for me to present in person at the several international conferences to which I’ve been invited to present on issues confronting intersex people.”

Although Lambda Legal was “disappointed” that the state did not offer an official timeline for the rollout of “X” on US passports, the organization applauded the State Department’s progress on this issue.

“The update to the State Department’s policy has been a long time coming and is prompted in large part by three separate court rulings in Dana’s favor,” Lambda Legal counsel Paul D. Castillo said in a written statement. “Dana showed incredible courage and perseverance throughout, and it is rewarding now to see the light at the end of the tunnel. With today’s announcement, countless intersex, non-binary, and other gender-diverse United States passport applicants will, at last, get the accurate passports they need. As important, self-certification of their identity removes unnecessary barriers and makes accurate IDs accessible to more people, reducing discrimination, harassment, and violence aimed at transgender people.”

Last year, in a similar lawsuit, a federal district court in Nevada ruled that the State Department violated the Fifth Amendment equal protection rights of Oliver Bruce Morris, a transgender man who requested a passport that identified him as male. The State Department initially declined this request because he did not have a doctor’s note affirming his gender transition.

For years, local and national leaders have been spearheading legislation to support this effort. Last year, Democratic Congressmember Ro Khanna of California introduced a bill that would direct the State Department to include a third gender marker option on passports. Last month, out gay state lawmakers Brad Hoylman and Daniel O’Donnell led the passage of the Gender Recognition Act, allowing New Yorkers to update their IDs and birth certificates with the gender marker “X.”

Among other recent LGBTQ-related actions by the Biden administration include new plans to create a working group to combat anti-trans violence and develop policies dismantling transphobia.

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