Inside One Intersex American’s Battle for Legal Recognition

Dana Zzyym has been fighting for five years to get a U.S. passport that accurately reflects their gender identity.

Dana Zzyym likes following directions. Any time applicants fill out a form for a United States passport, it states that all information listed on the application must be true under penalty of perjury. So Zzyym, a Navy veteran and former sailor, took those instructions at their word while sitting in a Denver passport office in 2014. When asked to check a box indicating their gender as either “male” or “female,” Zzyym wrote “intersex” at the top of the form.

“I wasn’t born a man or a woman,” they tell NewNowNext. “I was born intersex. That’s my truth.”

Zzyym has now been fighting the federal government to recognize that truth for five years. The U.S. Department of State has twice denied the 60-year-old a passport indicating their status as an intersex person. Zzyym, who identifies as non-binary and uses they/them pronouns, is one of up to 5.5 million Americans whose sex characteristics fall outside the standard gender binary. For context, that number is roughly the population of Minnesota.

Courtesy of Lambda Legal

Because Zzyym (pictured above) was born with ambiguous genitalia, they were subjected to multiple surgeries intended to “correct” their perceived gender variance. Zzyym’s parents never told them why they had to undergo these operations throughout their childhood; they assumed they had fallen and cut themselves.

But deep down, Zzyym knew something wasn’t right.

“Growing up as a small child, I always wondered whether I was a boy or girl,” they claimed. “I didn’t really find out for sure until I was 50 years old.”

After getting divorced a decade ago, Zzyym began to look inward and engage in self-reflection, soon realizing that a lot of their deep-seated issues connected back to those mysterious surgeries. A Google search led them to the existence of intersex people, and they soon started reading every book and journal article they could on the subject. After meeting other intersex people, Zzyym finally started “settling in” to their newly discovered identity and becoming “comfortable” with the person they always were.

But years after coming out, Zzyym argues that it feels as if their own government is trying to force them back into a box that doesn’t represent who they are.

“When you’re born, people think your body isn’t right,” they said. “Then they raise you in a binary, which is to me brainwashing. It’s 18 years of being raised as something you’re not. Medicalization changes your body and brain chemistry. So you grow up in a physical body that you shouldn’t be [in]. A lot of kids get their internal gonads removed. It causes a lot psychological damage long-term.”

Courtesy of Lambda Legal

Zzyym is currently the plaintiff in a case pending before the U.S. Court of Appeals for the Tenth Circuit, one which seeks to grant Zzyym the federal recognition long denied to them. In a brief filed by Lambda Legal last week, the LGBTQ advocacy organization urged the Denver-based court to uphold an earlier ruling in Zzyym’s favor. Last September, U.S. District Judge R. Brooke Jackson called the State Department’s denial of a passport recognizing Zzyym’s identity “arbitrary and capricious.”

“If the Department concludes that issuing a single passport to Dana even with appropriate notice will undermine the system of international travel as we know it, it can comply with the judgment by updating its software systems,” he wrote. “While this may be a difficult choice for the Department, it is not an impossible choice.”

In February 2019, Jackson—an Obama appointee—denied a stay of the decision while the verdict is appealed.

Paul Castillo, who serves as counsel in Lambda Legal’s south central regional office, claims the government has “provided no real justification” as to why it has continued to defend the policy in the face of Jackson’s ruling. According to Castillo, the State Department cited the cost of updating its systems to include an “X” option for non-binary and intersex people, but at least 11 countries—including Bangladesh, Germany, India, Malta, and Pakistan—have already done so without severe burden.

In addition, Castillo says federal authorities claimed there is “no generally accepted medical consensus as to how to define a third sex, making it an unreliable component of identity.” However, Zzyym provided the U.S. passport office with a birth certificate listing their gender as “sex unknown,” as well as a doctor’s note recognizing their intersex status.

The State Department “didn’t genuinely consider Dana’s application,” Castillo concludes.

“It wasn’t a thoughtful process,” he says. “They didn’t consider the alternatives available to the government. By all intents and purposes, the evidence that is provided indicates that it was a preordained decision that lacked any sort of reason.”

Although Zzyym was able to successfully apply for a non-binary ID in Colorado in November of last year, being refused a passport that aligns with their gender identity has prevented them from traveling outside of the country. When Zzyym initially applied for a passport five years ago, it was to attend the International Intersex Forum in Mexico City; they currently serve as the associate director for Intersex Campaign for Equality and are often invited to speak on issues impacting the global intersex community.

In addition to being refused the ability to travel for work, Castillo notes the painful irony of a military veteran essentially being likened to a felon or other individuals refused a U.S. passport.

“Historically, we have denied passports for unlawful and criminal conduct or for claims of significant harm to national security or foreign policy,” he states. “This is not about any of those issues. It’s really about a case where, for the first time that we’re aware of, [someone is being denied a] passport based on refusing to lie on a passport.”

Courtney Pedroza/Chicago Tribune/TNS via Getty Images
Intersex activist Pidgeon Pagonis protests outside of Lurie Children’s Hospital in Chicago, which performs surgeries on intersex newborns.

While the case is likely to end up at the U.S. Supreme Court no matter how the Tenth Circuit rules, the momentum is increasingly on Zzyym’s side. Last week, nine states which already allow intersex and non-binary people to apply for an “X” marker on some form of official identification—whether birth certificates, driver’s licenses, or state IDs—filed amicus briefs in support of Zzyym. These states, which include California, Colorado, Maine, Minnesota, Nevada, New Jersey, Oregon, Vermont, and Washington, say they have experienced no complications as a result.

“They said the State Department’s refusal to recognize non-binary gender would make it harder to verify someone’s identity in government databases, not easier,” the Associated Press reported on Thursday.

While Zzyym looks forward to the day when their government isn’t asking them to lie about their gender in order to have the ability to leave the country, they also hope that one day other intersex youth won’t be subjected to the same treatment. Someday in the future, Zzyym wants nations across the globe to recognize that forcing people to be something they aren’t hurts everyone.

“This country, and a lot of countries, are still cutting intersex kids,” Zzyym says. “We need to stop that.”

Nico Lang is an award-winning journalist and editor. His work has been featured in INTO, Rolling Stone, The Guardian, Esquire, and the L.A. Times.
@Nico_Lang