Coming to a Passport Near You: Non-Binary Gender Marker

The U.S. Department of State currently allows people to select a binary gender marker (M or F) for their U.S. passports, “even if the gender [they] select does not match the gender on [their| supporting documentation such as a birth certificate, previous passport, or state ID.” In addition, passport holders may “request a new passport with a different gender than the one [they] have on [their] current passport” by following the instructions on the Department of State’s “Selecting your Gender Marker” webpage.

Further, there are plans for an “X” gender marker on U.S. passports for non-binary, intersex, and gender non-conforming people, which is expected to be available in early 2022. The impetus for this non-binary gender marker was a 10th Circuit Court of Appeals decision in May 2020, Zzyym v. Pompeo, 958 F. 3d 1014.

Procedural History of the Case

In 2014, Plaintiff-Appellee Zzyym “applied for a U.S. passport, but was intersex and could not accurately identify as either male or female. Because neither option applied, Zzyym requested a passport with an ‘X’ designation for the sex. The State Department refused and denied Zzyym’s application.” Zzyym v. Pompeo, 958 F. 3d at 1018.

In 2016, the U.S. District Court for Colorado found that “the administrative record contains no evidence that the Department followed a rational decisionmaking process in deciding to implement its binary-only gender passport policy. Therefore, the proper next step is to remand the case to the Department to give it an opportunity either to shore up the record, if it can, or reconsider its policy.” Zzyym v. Kerry, 220 F. Supp. 3d 1106, 1111.

Four years later, the 10th Circuit concluded “that the State Department acted within its authority but exercised this authority in an arbitrary and capricious manner.” Zzyym v. Pompeo, 958 F. 3d at 1018. As a result, it vacated “the district court’s entry of judgment for Zzyym and the court’s issuance of a permanent injunction against enforcement of the binary sex policy as to Zzyym and remand[ed] with instructions to vacate the State Department’s decision and reconsider Zzyym’s application for an intersex passport.” Zzyym v. Pompeo, 958 F. 3d at 1034-1035.

Revised Gender Marker Policies for U.S. Passports

The Department of State announced on June 30, 2021, that it would be updating its procedures “to allow applicants to self-select their gender as ‘M’ or ‘F’ and will no longer require medical certification if an applicant’s self-selected gender does not match the gender on their other citizenship or identity documents.” The same press statement included plans for introducing the non-binary “X” gender marker option.

On October 27, 2021, NBC News reported that the U.S. had issued its first passport with the “X” gender marker, and that “Lambda Legal, the LGBTQ nonprofit legal group representing Zzyym, confirmed that its client was the first person to get a passport with an ‘X.’”

For updates on the Department of State’s progress of getting the non-binary “X” gender marker option on passports and “any interim solutions,” go to https://travel.state.gov/content/travel/en/passports/need-passport/selecting-your-gender-marker.html.

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