341 F. Supp. 3d 1248
D. Colo.2018Background
- Plaintiff Dana Zzyym, an intersex U.S. citizen, applied for a passport in 2014 and requested a non-binary/"X" sex marker; application was denied twice because the State Department's passport system and guidance provide only "M" or "F."
- Dana submitted medical certifications attesting to being intersex and appealed administratively; State offered issuance only if Dana chose M or F or provided a physician letter declaring a different gender.
- Dana sued under the Administrative Procedure Act (APA) alleging the binary-only policy is arbitrary and capricious and exceeds statutory authority; also pleaded Fifth Amendment due process and equal protection claims and a mandamus claim.
- Court previously remanded (Nov. 2016) finding the administrative record insufficient to show a rational decisionmaking process; after the Department reaffirmed the policy in May 2017, the Court reopened the case and received supplemental briefing.
- The Department defended the policy chiefly on five grounds: identity-verification necessity, eligibility/data-matching needs, domestic verification/operational consistency, lack of medical consensus on a third sex, and administrative cost/time. The administrative record included international and some U.S. jurisdictions recognizing non-binary markers and medical authority recognizing non-binary categories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Department's binary-only gender policy is arbitrary and capricious under the APA | Zzyym: policy lacks rational basis; Dept. failed to consider relevant evidence and harms to intersex people | State: binary marker required for identity verification, data matching, interoperability, lack of medical consensus, and cost/time to change systems | Court: policy arbitrary and capricious; Department's reasons inadequate and record does not show reasoned decisionmaking |
| Whether denial of passport exceeds statutory authority (APA §706(2)(C)) | Zzyym: no statute authorizes denying a truthful non-binary designation; withholding passport on this basis exceeds delegated authority | State: broad issuance authority under 22 U.S.C. §211a and historical practice permit regulation of passport content; requiring complete application is lawful | Court: withholding based on binary-only policy is in excess of statutory authority; no adequate legal basis to deny truthful designation |
| Appropriate relief — injunction/mandamus | Zzyym: seeks injunction and mandamus compelling issuance of passport with intersex marker | State: administrative discretion and regulations control issuance; relief should be limited | Held: Court grants injunctive relief enjoining Dept. from relying on binary-only policy to withhold Dana's passport; mandamus unnecessary because APA relief is available |
| Constitutional claims (due process/equal protection) | Zzyym: binary policy violates Fifth Amendment rights | State: not reached in decision on APA grounds | Held: Court did not reach or decide constitutional claims because APA remedy was dispositive |
Key Cases Cited
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (agency action set-aside if arbitrary or capricious)
- Haig v. Agee, 453 U.S. 280 (Executive has authority to withhold passports for substantial national security/foreign policy reasons)
- Kent v. Dulles, 357 U.S. 116 (limits on Secretary of State authority to deny passports absent valid grounds)
- Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir.; reviewing agency action under APA focuses on rational connection between facts and decision)
- Sorenson Commc'ns, Inc. v. F.C.C., 567 F.3d 1215 (agency action entitled to presumption of validity; petitioner bears burden to show arbitrary or capricious)
- Plyler v. Doe, 457 U.S. 202 (courts require more than speculation to accept governmental burdens as justification)