by Peter Sprigg
May 22, 2020
In a decision on May 12, the U.S. Court of Appeals for the Tenth Circuit ruled that the State Department should reconsider its refusal to grant a gender-neutral passport to a plaintiff with an intersex condition who identifies with a “non-binary” gender.
An “intersex” condition is a biological condition in which one or more of the biological indicators of sex does not develop in the typical male or female way. It is completely different from a “transgender” condition, in which an individual does not identify psychologically with his or her biological sex at birth. True intersex conditions are rare; but transgender identification is rapidly growing.
There is a proverb which warns, “Once the camel gets his nose in the tent, his body will soon follow.” What seems like a small intrusion can quickly become a large one. I fear that metaphor may apply to the legal fight over “gender-neutral” passports.
Although several news outlets covered the story, Courthouse News Service was the most thorough in describing the plaintiff:
The birth certificate Zzyym was given in 1958 originally used the name Brian Orin Whitney and left the gender line blank because they were born with “ambiguous external sex characteristics.” Raised male, Zzyym was 5 when they underwent medically unnecessary corrective surgery at their parents’ request.
In 1995, the six-year Navy veteran changed their name to Dana Alix Zzyym.
The complaint that was filed by Zzyym elaborates:
Zzyym’s parents decided to raise Zzyym as a male, so the original birth certificate’s blank for sex was filled in as “male.” The State Department has treated this birth certificate as the original.
Zzyym lived as a male until adulthood. As an adult, Zzyym explored living as a woman and obtained a driver’s license identifying as female. But Zzyym grew increasingly uncomfortable living as a woman and eventually identified as a nonbinary intersex person. While identifying as intersex, Zzyym obtained an amended birth certificate identifying the sex as “UnKnown.”
According to one physician quoted in the court opinion, Zzyym did not merely “explore” living as a woman; he “has had surgery for transition to female genitalia.”
Zzyym applied for a passport—and requested that his sex be listed as “X.” (I will use male pronouns for Zzyym, since that is how he was identified on his original birth certificate, and in a photograph released by Lambda Legal, he appears to be conventionally male except for the hair on the top of his head being dyed blue.) The State Department refused, stating that U.S. passports may list only “M” (for Male) or “F” (for Female) as the passport holder’s sex. (This initial application and denial took place in 2014—under the administration of President Barack Obama and Secretary of State John Kerry.)
As the court acknowledged, “The State Department … noted that it had offered to produce a passport with an ‘F’ (matching Zzyym’s original Colorado driver’s license) or an ‘M’ (matching the original birth certificate).” However, the unprecedented “X” designation was refused.
News coverage made the Tenth Circuit decision appear to be a defeat for the State Department—but that is not the case. The District Court had ruled in favor of Zzyym outright, issuing “a permanent injunction against enforcement of the binary sex policy” with respect to Zzyym. The Tenth Circuit vacated this lower court decision.
Instead, the unanimous three-judge panel issued a more nuanced (but still flawed) ruling. The State Department had listed five reasons for upholding its binary-sex policy for passports. The court (in an opinion written by Judge Robert E. Bacharach, an Obama appointee) rejected three of these reasons, saying that the record of the case did not support them.
However, the panel also ruled that “the State Department had statutory authority to require applicants to identify their sex as male or female,” and that two of the five reasons for the policy were supported by the record. One might think that “statutory authority” and even one good reason would be enough to sustain the policy. But instead, the court said the State Department should reconsider to determine whether two reasons instead of five constitute enough justification.
The key error in the Tenth Circuit decision was its assumption that people with an “intersex” condition are neither male nor female. For example, the court stated that “most state identification documents pigeonhole everyone as male or female even though some people are neither.” They also asserted that requiring Zzyym to identify himself as male or female would amount to “forcing intersex individuals like Zzyym to inaccurately identify themselves” (emphasis added). The opinion even declares, “The State Department acknowledges that some individuals are born neither male nor female.”
If true, this is an unfortunate mischaracterization of what an “intersex” condition is. As even one intersex activist, Jonathan Leggette, has acknowledged, “Intersex traits can involve genitalia, chromosomes, hormones, and other secondary sex characteristics.” If even one of these characteristics develops in an abnormal way, that constitutes a “disorder of sexual development” (DSD), the medical term for an intersex condition. If, say, 98% of a person’s sex-related characteristics are normal male characteristics, and 2% are abnormal or appear to be those considered typical of a female, it would hardly make sense to say such a person is “neither male nor female.” Instead, that individual is clearly a male, but one with a DSD.
Anne Fausto-Sterling, a biologist at Brown University, has been widely quoted as asserting that up to 1.7% of the population is intersex. However, this claim has been challenged by others who point out that many who fall under Fausto-Sterling’s broad definition of “intersex” are people who may live their entire lives without even being aware that they have an intersex condition (such as an abnormality in their chromosomal make-up). The percentage of people who have any real ambiguity about their biological sex is far smaller—being found, by one estimate, in only 2 out of every 10,000 births.
Even among those with such a genuine intersex condition, however, the number who have both male and female characteristics in nearly a 50-50 ratio is very small. There are dozens of different DSDs that have been identified; of those, only one comes close to this type of ambiguity. It is known as an “ovotesticular” DSD (or “true gonadal intersex” or “true hermaphroditism”) because those with this condition have both ovarian and testicular tissue. This is the rarest DSD—only about 500 cases have ever been reported in the medical literature. And yet even among these, “Most affected individuals have a 46, XX chromosomal [typical female] make-up …, which normally results in female sexual development.”
The Tenth Circuit decision reports that Zzyym “was born with both male and female genitalia.” That is a stronger assertion than the one found in Zzyym’s original complaint in the District Court, which was merely that “Zzyym was born intersex, with ambiguous genitalia.” We don’t know if that is a reference to “ovotesticular DSD,” since that more technical term is not used in the opinion.
In one sense, the ultimate disposition of Zzyym’s case poses little danger of setting a major precedent for others, since the number of people “with both male and female genitalia” is tiny. People with such a birth defect are deserving of our compassion.
However, this case, demanding a “gender X” passport for someone with a biological “intersex” condition, is merely the camel’s nose in the tent. In asserting that intersex people are “neither male nor female,” the court fails to note that most people with intersex conditions are perfectly content to identify as either male or female, notwithstanding their physical problems. The only reason Zzyym felt the need to sue the State Department is because—unlike most “intersex” people—his psychological “gender identity” is “non-binary,” meaning “neither male nor female.”
But declaring one’s “gender identity” to be “non-binary” is merely the latest fad in the larger “transgender movement.” Just as most “intersex” people are not “non-binary,” most of those who choose to identify as “non-binary” do not have a biological intersex condition but are entirely normal with respect to their biological sex at birth.
Transgender activists would like for anyone who identifies as “non-binary” to be able to get identification documents with an “X” gender marker. Winning one for an intersex person would only be the first step toward that even more radical goal.
The State Department should continue to refuse Zzyym’s request.