Attorney General Becerra Leads Coalition in Brief Defending Rights of Gender Non-Binary Individuals

Wednesday, May 15, 2019
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SACRAMENTO – California Attorney General Xavier Becerra, Colorado Attorney General Phil Weiser, and Oregon Attorney General Ellen Rosenblum today led a coalition of attorneys general in an amicus brief in Zzyym v. Pompeo to defend the rights of gender non-binary individuals. Under current federal policy, individuals who are neither male nor female (non-binary individuals) are under threat that their U.S. passport applications will be denied. In the brief filed with the U.S. Court of Appeals for the Tenth Circuit, the Attorneys General assert that individuals deserve full legal recognition of their accurate gender identity on passports provided by the U.S. Department of State (Department).

“Discrimination based on gender identity has no place in the 21st century,” said Attorney General Becerra. “Despite being able to coordinate more than 43,000 flights a day, our federal government says that it can’t update one section of your passport to accurately reflect a person’s gender. This is 2019, not 1920. Let’s do our part to make all Americans feel welcome in their own country, and maintain their ability to travel internationally regardless of their gender identity.”

“Coloradans use state-issued identification documents every day to interact with government agencies, law enforcement, and businesses. Providing non-binary identification documents in our state is easy to manage, respects our citizens’ gender identity, and is the right thing to do,” said Colorado Attorney General Weiser. “The federal government needs to catch up with the states that are leading the way when it comes to equality. All Americans should be able to obtain a passport that accurately reflects their gender.”

“Oregon—like other states—recognizes non-binary gender designations on driver’s licenses and birth certificates. The thousands of Oregonians who now have these identification cards are entitled to have passports that match their state IDs,” said Oregon Attorney General Rosenblum. “This case is no more complicated than that it is important that all identification documents accurately reflect an individual’s gender, whether it is male, female, or non-binary.”

Zzyym v. Pompeo centers around an individual who, in accordance with their gender identity, requested a passport with an “X” as the marker for the sex field of their passport instead of an “M” for male or an “F” for female. Zzyym is both intersex (ambiguous sex characteristics) and non-binary (self-identifies as neither male nor female). Despite providing the Department with documentation of their intersex status, the Department told Zzyym to choose either the male or female designation and subsequently rejected Zzyym’s application for failing to complete the sex field accordingly. The denial in the Zzyym case was solely due to the applicant’s non-binary gender — a sex designation that has been legally recognized in multiple jurisdictions across the U.S. and globally. The “X” designation conforms to the standard for individuals with an unspecified gender set by the International Civil Aviation Organization, a specialized agency within the United Nations that, among other things, establishes norms for passport specifications.

In September 2018, the U.S. District Court for the District of Colorado found that the Department’s gender policy was arbitrary and capricious and that the passport application denial was in excess of the Department’s statutory authority. The federal government appealed the decision and it is now before the U.S. Court of Appeals for the Tenth Circuit. California is uniquely situated to weigh in on this issue since the state has systems in place in areas such as law enforcement that are inclusive of gender non-binary individuals. Most recently, the state began allowing individuals to use an “X” in applying for an official state license on January 1, 2019.

Recognizing that discrimination has no place in our society, the California Department of Justice is committed to protecting the rights of members of the LGBTQ community. On behalf of the State of California, Attorney General Becerra is a co-plaintiff in Stockman v. Trump, a case seeking to defend the rights of transgender individuals seeking to join, or currently serving in, the U.S. military. Attorney General Becerra has also fought against discriminatory actions by the federal government threatening safe and equitable access to healthcare and education for members of the LGBTQ community. Additionally, in accordance with California law, the California Department of Justice develops and maintains a list of states that are subject to state-sponsored travel restrictions because of laws that authorize or require discrimination on the basis of sexual orientation, gender identity, or gender expression.

Joining Attorney General Becerra in filing the brief are the Attorneys General of Colorado and Oregon, as well as Maine, Minnesota, Nevada, New Jersey, Vermont, and Washington.

A copy of the brief filed in Zzyym v. Pompeo is available here.

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