## Facts

- Dana Alix Zzyym, an intersex, nonbinary U.S. citizen, sought a U.S. passport with a nonbinary sex designation (“X”).
- Zzyym was born with intersex characteristics; an original birth certificate listed sex as male, and an amended birth certificate later listed sex as “unknown.”
- In 2014, Zzyym applied for a passport, declined to select “M” or “F,” wrote “intersex,” and requested an “X” marker.
- Zzyym submitted supporting documentation, including the amended birth certificate and a physician’s letter confirming intersex status.
- The State Department denied the application under its longstanding policy requiring passports to reflect sex as either male or female, and it maintained the denial on reconsideration.
- Zzyym sued, alleging the binary sex policy exceeded statutory authority and that the denial was arbitrary and capricious under the Administrative Procedure Act (APA), along with constitutional claims.
- The district court granted summary judgment to Zzyym on the APA claims and did not reach the constitutional claims; the government appealed.

## Issues

1. Whether the State Department exceeded its statutory authority under the passport statutes by adopting and applying a binary sex policy requiring “M” or “F.”
2. Whether the denial of Zzyym’s passport application under that policy was arbitrary and capricious under the APA, 5 U.S.C. § 706(2)(A).

## Decision

- The Tenth Circuit held the State Department acted within its statutory authority to require sex information and to structure passport applications around “M” and “F.”
- The court held the denial of Zzyym’s application was arbitrary and capricious because the Department failed to adequately support and explain several of its stated reasons for refusing an “X” marker.
- The Department offered five justifications; the court concluded only two were supported by the administrative record, while three were not adequately supported or explained.
- The court affirmed the finding of arbitrariness under the APA, reversed the ruling that the policy exceeded statutory authority, and remanded.
- The court did not decide the constitutional claims because the case was resolved on APA grounds.

## Legal Principles

- Passport statutes grant the Secretary of State broad discretion to regulate passport issuance and collect identifying information, including sex, unless Congress clearly limits that discretion.
- Under APA arbitrary-and-capricious review, an agency must provide a reasoned explanation and show a rational connection between record evidence and the action taken.
- An agency action is unlawful under the APA when key justifications are unsupported by the administrative record, internally inconsistent, or conclusory in ways that prevent meaningful review.
- When an agency relies on administrative burden, fraud prevention, document consistency, or foreign-relations concerns, it must explain how those concerns apply to the decision at issue and support them with record-based reasoning.

## Conclusion

The court upheld the State Department’s authority to maintain a binary sex framework for passports but required the Department, under the APA, to provide a record-supported and adequately explained rationale for denying an intersex applicant’s request for an “X” sex marker, and it remanded for further proceedings.


Zzyym v. Pompeo, 958 F.3d 1014 (10th Cir. 2020)