May 15, 2019 | Office of Attorney General Keith Ellison

Press Release

Attorney General Ellison defends rights of gender non-binary people in court

Joins amicus brief in support of individual who requested passport with alternative marker for sex

May 15, 2019 (SAINT PAUL) — Minnesota Attorney General Keith Ellison today joined a coalition of attorneys general, led by California, Colorado, and Oregon, in filing an amicus brief in Zzyym v. Pompeo to defend the rights of gender non-binary individuals. Under current federal policy, non-binary individuals who are or identify as neither male nor female live with the threat that federal government will deny their applications for a U.S. passport. 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 issued by the U.S. Department of State.

“The right to have your government accurately name and acknowledge your gender identity, and not arbitrarily deny it, is fundamental to living with dignity and respect,” Attorney General Ellison said.

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 and non-binary. Despite providing the Department with documentation on 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.

Attorney General Ellison is joined in the amicus brief by the Attorneys General of California, Colorado, Maine, Nevada, New Jersey, Oregon, Vermont, and Washington.
A copy of the brief filed in Zzyym v. Pompeo is available on the website of California Attorney General Xavier Becerra.