## Facts

- Dana Alix Zzyym, an intersex U.S. citizen and Navy veteran, applied for a U.S. passport in 2014.
- The passport application form required selection of “M” or “F”; Zzyym left both boxes blank and wrote “intersex,” requesting an “X” marker consistent with international travel-document standards.
- The State Department denied the application, stating it required the sex field to be “M” or “F” and could not issue a passport with “X.”
- The Department offered issuance if Zzyym selected a binary marker matching other documents or submitted a physician letter under its “Gender Change” policy.
- Zzyym appealed and submitted medical documentation confirming intersex status and stating that neither “M” nor “F” was accurate.
- The Department maintained its refusal and continued to require a binary sex designation.

## Issues

1. Whether the State Department’s refusal to issue a passport to an intersex applicant unless a binary sex marker is selected was arbitrary and capricious under the Administrative Procedure Act.
2. Whether denying the application on the basis of a binary-only sex-marker policy exceeded the State Department’s statutory authority under the passport statutes.

## Decision

- The court granted relief to Zzyym on the APA claims.
- The court held the Department’s denial, based on a binary-only policy, was arbitrary and capricious.
- The court also held the denial was in excess of the Department’s statutory authority.
- The court set aside (vacated) the denial and remanded to the State Department for reconsideration consistent with the opinion.
- The court did not order immediate issuance of a passport with an “X” marker.
- Because APA relief was sufficient, the court declined to decide the Fifth Amendment due process and equal protection claims at that stage.

## Legal Principles

- Under APA arbitrary-and-capricious review, agency action must be supported by a reasoned explanation and a rational connection between the record and the decision; failure to consider important aspects of the problem requires vacatur.
- An agency may not justify a categorical policy through conclusory assertions (e.g., convenience, fraud prevention, or database consistency) without adequately explaining how the policy serves statutory purposes in the case at hand.
- Broad statutory discretion to administer passports does not permit agency action that lacks reasoned decisionmaking or that extends beyond statutory limits as applied to the facts.
- Statutory silence on a specific policy choice does not, by itself, justify an agency’s refusal to consider alternatives where the statute otherwise permits accurate identification of passport holders.
- When nonconstitutional grounds resolve the dispute, a court may decline to reach constitutional claims.

## Conclusion

The court vacated and remanded the State Department’s denial of an intersex applicant’s passport request, finding that a binary-only sex-marker requirement was inadequately justified under the APA and exceeded the Department’s statutory authority, while leaving the agency to reconsider its policy on remand.


Zzyym v. Kerry, 220 F. Supp. 3d 1106 (D. Colo. 2016)