The client, a military veteran who is intersex and uses the pronoun “they,” declined to choose either “male” or “female” on their passport application, because neither delineation applies to them—their application was then subsequently denied by the State Department on that basis.
In a final decision, the U.S. District Court for the District of Colorado determined the State Department’s binary gender-marker policy is “arbitrary and capricious and not a result of rational decision-making.” The court also ruled the agency exceeded its authority when it denied the client a passport solely on the basis of the gender-marker policy.
The court previously ruled in 2016 that the State Department failed to identify any rational basis for its requirement that all passport applicants must identify as male or female. Under the 2016 ruling, the agency was provided an opportunity to reconsider and provide additional justification for the policy.
The recent legal decision resulted after the court concluded none of the factors identified in the State Department’s supplemental record withstood legal scrutiny.
FaegreBD attorneys Michael Ponto, Emily Chow and Ann Prouty, led the firm’s pro bono legal team and co-counseled the case with Lambda Legal, a nonprofit, national organization, whose mission is to achieve full recognition of civil rights for lesbians, gay men, bisexuals, transgender people and everyone living with HIV, through impact litigation, education and public policy work.