The Dana Zzyym passport case is the six-year legal fight that produced the first U.S. passport ever issued with an “X” gender marker, and then, four years later, saw that policy reversed. Zzyym, an intersex Navy veteran from Fort Collins, Colorado, sued the State Department in 2015 after being denied a passport for refusing to check “male” or “female.” Three court rulings went their way. In October 2021 they received the historic passport. In January 2025 the Trump administration eliminated the X marker, and on November 6, 2025, the Supreme Court let that reversal take effect while litigation continues.
Who Dana Zzyym Is
Born in 1958 in Michigan under the name Brian Orin Whitney, Zzyym was born with ambiguous external sex characteristics. The sex field on their birth certificate was initially left blank, then later filled in as “Male.”1Immigration Issues. Complaint for Declaratory, Injunctive, and Other Relief By age five, Zzyym had been subjected to several irreversible, medically unnecessary surgeries intended to make their body conform to a binary sex. The surgeries failed and left permanent scarring.2Lambda Legal. Zzyym v. Blinken
In 1978, Zzyym enlisted in the U.S. Navy as a Machinist Mate and served six years, including three tours in Beirut and one in the Persian Gulf.1Immigration Issues. Complaint for Declaratory, Injunctive, and Other Relief In 2009, a Veterans Affairs urologist confirmed Zzyym had intersex traits. By 2011, Zzyym had concluded they were neither male nor female. In 2012, they had the sex designation on their birth certificate amended to “Unknown.”3Courthouse News Service. Zzyym Complaint Zzyym went on to serve as associate director of the Intersex Campaign for Equality.4Intersex Campaign for Equality. Directors
Why the Passport Was Denied
In September 2014, Zzyym applied for a U.S. passport to attend the International Intersex Forum in Mexico City. The application required checking “male” or “female.” Zzyym refused, pointing to a birth certificate listing their sex as “unknown” and VA medical records confirming an intersex diagnosis. The State Department denied the application on September 24, 2014.2Lambda Legal. Zzyym v. Blinken The Colorado Passport Agency formally denied a first appeal on December 29, 2014, and rejected a final request for reconsideration on April 10, 2015.5Lambda Legal. Zzyym v. Kerry Complaint The agency’s position: its policy required a binary designation, and no third option existed.
“I shouldn’t have to suffer at the hands of my government — a government I proudly and willingly served,” Zzyym said. “It’s a painful hypocrisy that, simply because I refused to lie about my gender on a government document, the government would ignore who I am.”6PBS NewsHour. Intersex Dana Zzyym Passport Decision
The Lawsuit and Three Rulings for Zzyym
Lambda Legal filed suit on October 25, 2015, in the U.S. District Court for the District of Colorado. The case, initially Zzyym v. Kerry, was re-captioned as secretaries of state changed, becoming in turn Tillerson, Pompeo, and finally Blinken.2Lambda Legal. Zzyym v. Blinken The complaint raised five counts under the Administrative Procedure Act, the Fifth Amendment’s due process and equal protection guarantees, and mandamus, arguing that the State Department had exceeded its authority under the Passport Act of 1926 and that its binary-only policy was arbitrary and capricious.5Lambda Legal. Zzyym v. Kerry Complaint
The First District Court Ruling
On November 22, 2016, U.S. District Judge R. Brooke Jackson found that “the administrative record contains no evidence that the Department followed a rational decision-making process in deciding to implement its binary-only gender passport policy.”6PBS NewsHour. Intersex Dana Zzyym Passport Decision Rather than order a passport issued, the judge remanded the case to the agency and declined to reach the constitutional claims.7GovInfo. Zzyym v. Kerry District Court Order
The Second District Court Ruling
The State Department reaffirmed the denial on May 1, 2017.8Lambda Legal. Zzyym Supplemental Complaint On September 19, 2018, Judge Jackson again ruled for Zzyym, noting that the agency’s explanations relied on internal policies that “do not contemplate the existence of intersex people.”9CPR News. Federal Judge Rules Dana Zzyym, Intersex Person, Can’t Be Denied Passport The government appealed.
The Tenth Circuit Ruling
On May 12, 2020, a three-judge Tenth Circuit panel held in Zzyym v. Pompeo that while the State Department had statutory authority under the Passport Act to enforce a binary sex policy, its application of that policy was arbitrary and capricious.10U.S. Court of Appeals for the Tenth Circuit. Zzyym v. Pompeo, No. 18-1453 The agency had offered five justifications: accuracy, identity verification, interagency database compatibility, lack of medical consensus on determining intersex status, and infeasibility of adding a third designation. The court found only the identity-verification and interagency rationales supported by the record. On accuracy, the court observed that for intersex applicants the binary policy “injects inaccuracy into the data.” No scientific literature had been cited on medical consensus, and feasibility concerns went unsubstantiated. The case was remanded again.
The First X Gender Marker Passport
In June 2021, the State Department announced it would allow an X gender marker on U.S. passports for nonbinary, intersex, and gender-nonconforming applicants and would no longer require medical documentation to match a gender marker to identity.11Lambda Legal. State Department to Allow X Gender Markers on U.S. Passports
On October 27, 2021, at age 63, Zzyym received the first U.S. passport ever issued with an X gender marker. “I almost burst into tears when I opened the envelope, pulled out my new passport, and saw the ‘X’ stamped boldly under ‘sex,'” Zzyym said. “It took six years, but to have an accurate passport, one that doesn’t force me to identify as male or female but recognizes I am neither, is liberating.”12Lambda Legal. Dana Zzyym Receives First U.S. Passport With X Gender Marker
On April 11, 2022, the State Department opened the X option to all U.S. passport applicants, defining it as “Unspecified or another gender identity.”13U.S. Department of State (archived). X Gender Marker Available on U.S. Passports Starting April 11 Lambda Legal closed the case with a designation of “Victory.”2Lambda Legal. Zzyym v. Blinken
The 2025 Reversal
The X marker policy lasted less than three years. On January 20, 2025, President Donald Trump issued Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” It declared federal policy to recognize only two sexes, male and female, defined by sex assigned “at conception,” and directed the State Department to require all government-issued identification to reflect the holder’s “biological” sex.14SCOTUSblog. Supreme Court Sides With Trump Administration on Sex Designations on Passports Two days later, the State Department eliminated the X marker and suspended pending applications involving gender marker changes.15NPR. Trump Passport Policy Trans Gender Intersex Nonbinary
Passports already issued with X markers or updated gender designations remain valid until they expire, are replaced, or are otherwise invalidated. New passports display only the sex assigned at birth.16U.S. Department of State. Sex Markers
Where the Law Stands Now
The reversal is being litigated in Orr v. Trump, filed in the U.S. District Court for the District of Massachusetts. Seven transgender and nonbinary plaintiffs, represented by the ACLU, the ACLU of Massachusetts, and Covington & Burling, challenged Executive Order 14168 under the Equal Protection and Due Process Clauses, the Administrative Procedure Act, and the First Amendment’s prohibition on compelled speech.17ACLU. Orr v. Trump
U.S. District Judge Julia Kobick granted temporary relief in April 2025 and, on June 17, 2025, issued a preliminary injunction blocking enforcement. The First Circuit declined to stay it. The administration appealed to the U.S. Supreme Court.
On November 6, 2025, the Supreme Court issued an unsigned opinion staying the preliminary injunction. The majority concluded the administration was “likely to succeed on the merits,” reasoning that displaying sex at birth on passports did not offend equal protection principles, and that the government would suffer irreparable injury if barred from enforcing a policy with foreign affairs implications.18U.S. Supreme Court. Trump v. Orr, No. 25A319 Justice Ketanji Brown Jackson, joined by Justices Sonia Sotomayor and Elena Kagan, dissented, writing that the government had failed to demonstrate irreparable harm and that the stay would inflict “immediate” and “pointless but painful” injury on the plaintiffs.14SCOTUSblog. Supreme Court Sides With Trump Administration on Sex Designations on Passports
The stay remains in effect while the appeal proceeds through the First Circuit. The underlying Orr v. Trump litigation is ongoing, with summary judgment motions filed in early 2026.17ACLU. Orr v. Trump Lambda Legal is pursuing a separate challenge, Schlacter v. U.S. Department of State, contesting the same policy changes.19Lambda Legal. Trans ID Guidance FAQ Zzyym’s three court victories remain part of the record, but the practical question they answered, whether the federal government must offer a nonbinary passport option, is once again open.