A follow up and another interesting case from the US

A few months ago I wrote a post for this blog about why the Jamie Shupe case may be the most important ever, in the field of gender recognition, and it seems that I was right, at least within the United States.

While we have yet to see evidence of the reasoning in that case being followed internationally, there has been an “explosion” in similar cases in the United States. Following the Shupe case, a number of cases have proceeded to expand not only the number of States that recognise intersex and non-binary identities but also the identities recognised and the number of documents that they are recognised on.

In September Sara Kelly Keenan became the second US citizen to have their gender on their birth certificate recognised as non-binary1. Unfortunately we cannot know if this case was influenced by the reasoning in the Shupe case, as the order was signed without comment2.

November however, brought us something far more substantive to read; the case of Dana Zzyym3. This case, while it does not deal with birth certificates, makes reference to them, and directly concerns passports, which are also a relevant issue for those with non-binary gender and sexes seeking legal recognition. In this case, Dana Zzyym attempted to obtain a passport that stated that their sex was neither “M” nor “F” but intersex. They also offered to provide medical evidence to confirm this. They were told that this would not be possible, and that any passport application without the sex recorded as either “M” or “F” would be considered incomplete and thus no passport could be issued. After Zzyym appealed the decision, the passport office simply reiterated their policy. In response to this, Zzyym filed a lawsuit against, then secretary of state, John Kerry, as well as the director of the Colorado passport agency. The suit was brought on a number of grounds including violation of the administrative procedures act; exceeding the congressionally delegated authority given to the passport agency; that such actions violated their 5th amendment right to due process and that it violated their right to equal protection under the law.

While it may have perhaps been more interesting if the judge had decided to address the constitutional issues, the order in this case focuses solely on the administrative procedures of the case. The relevant section being 5 U.S. Code § 706 4, which allows for judicial review of policies and allows for those policies to be set aside if they are found to be “arbitrary and capricious”. For those familiar with public law in the UK, this will seem somewhat similar to the grounds of judicial review known as irrationality, which allows a court to order that a decision be remade if it meets the “Wendsbury unreasonableness” 5 standard, which has been described6 as:

“So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

While the “arbitrary and capricious standard is not exactly the same as unreasonableness, the similarities may serve as a quick aid to understanding. The judgement itself in Zzyym’s case goes into this standard in more depth, and states that the passport agency must show that some reasoning went into their decision.

This case, due to the matter at hand being the reasoning behind the decision, manages to shed a significant amount of light on the origin of the policy and the reasons behind its existence, which are well worth looking at for anyone in related fields. By way of brief summary, so that I don’t end up repeating what the judgement itself states, initially the reasoning behind the “policy” seemed to just be that the passport agency does not recognise genders other than “M” or “F” because it has decided that it does not. The agency provided support for this only by providing a document that just described current practice. As such it seems that it was never a matter that was given thought, and was something that became a rule because people assumed that it was. This is particularly interesting, as this may be the origin of the entrenchment of the binary gender in law in almost every place where this entrenchment does occur, people just didn’t consider an alternative, so current practice became a rule without anyone thinking about it.

The judge in this case called this “no justification at all”. However, the State department did produce one other piece of evidence, a declaration from Bennet S Fellows, Division Chief of the Office of Adjudication Policy which did mention a number of possible reasons for the policy, including:

  • That “key data (again sex, name, date of birth, place of birth) “must . . . be supported by documentation generated by third parties, such as birth certificates, driver’s licenses, social security cards, third-party affidavits, and/or other documentation consistent with the information submitted by the applicant,” but that none of the entities issuing many of these documents “currently authorize the use of an “X” or any marker other than “M” and “F.” “
  • That the chips used in passports only allow for a value of “M” or “F”
  • That passport information must work together with law enforcement databases, which only record gender as a “M” or “F” and,
  • that US passport information must work together with that of other countries, most of which do not recognise non-binary sexes or genders, which may cause difficulties.

None of these reasons were found satisfactory. The first was seen as self-fulfilling, as the department chooses which documents it considers proper, and seems to deliberately ignore those which would otherwise be acceptable but recognise a non-binary gender. It also seemed that this point was undercut, as they offered Dana Zzyym a passport which reflected a gender which did not appear on any identity documents.

The second ground was found to be, at best, an argument not to change the system now rather than a reason for its original adoption, which was the matter at hand. Furthermore, it was pointed out that no attempt was made to say that such a change would outweigh the benefits, merely that such a change potentially might pose one difficulty.

The third ground was rejected, as it seems contrary to the offer of the department to provide a passport that was contrary to Zzyym’s state identity documents.

The final ground was found to be insufficient, as if problems occur when travelling, that seemed to be a problem of the individual who chose that gender marker, not that of the State. Furthermore, the judge questioned as to whether this ground was mere speculation, as it appeared to be, and even if it were not it did not seem to be the initial reason this policy was adopted.

After finding all of these grounds to be insufficient the conclusion was reached that the “policy” should be set aside. This may well be a case similar in importance to Shupe’s case, as this policy may be remade in a more rational fashion, allowing greater recognition. Even if it isn’t, the reasoning deployed, that no rational decision making process had occurred when the “policy” was created, has potential implications if it becomes influential internationally. While it depends on what the reasoning is in other countries, I suspect that the process may have been similar, that of policy through concretion of practice without thought, in many countries, which may lead to similar outcomes if this reasoning becomes more widely deployed.

Zzyym’s case is not the last though, after all, three cases do not make an explosion. Shortly after the decision in Zzyym’s case Sara Kelly Keenan made history once again, by having their gender certificate altered in New York state to identify their sex as intersex, the first known birth certificate to do so. 7

Not only are these colossal advancements, but more should be expected in the near future, with organisations like the Intersex & Genderqueer Recognition Project helping people bring cases to advance the law. 8

Thanks for reading this brief update, this is a fast developing area of law, and it is both a pleasure to study yet somewhat exhausting. I have to bring you more updates in the future, as well as the follow up to my first post where I will hopefully get around to talking a bit more about the international history of gender recognition litigation.



  1. http://www.nbcnews.com/feature/nbc-out/californian-becomes-second-us-citizen-granted-non-binary-gender-status-n654611
  2. See http://media1.s-nbcnews.com/j/newscms/2016_39/1724546/160926-sara-kelly-keenan-court-order-jpo-248p_06d81ab4bbb0d9c081c1079574c822c8.nbcnews-ux-2880-1000.jpg for a picture of the order.
  3. In the United states district court for the district of Colorado, Judge R. Brooke Jackson, Civil Action No 15-cv-02362-RBJ the order can be found at http://www.lambdalegal.org/in-court/legal-docs/zzyym_co_20161122_order
  4. 5 U.S. Code § 706 located at https://www.law.cornell.edu/uscode/text/5/706#2_A
  5. See Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223
  6. By lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6
  7. https://mic.com/articles/163861/sara-kelly-keenan-receives-the-first-known-intersex-birth-certificate-in-the-us#.fSBFoch8X

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