AG Grewal Joins Amicus Brief Standing Up For Non-Binary Individuals In Ongoing Litigation With U.S. State Department – Brief Challenges State Department Policy Requiring Passport Applicants to Identify as Male or Female, Despite State Laws Recognizing Non-Binary Identity

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Lee Moore

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TRENTON – Attorney General Gurbir S. Grewal today joined a multi-state amicus brief supporting the right of non-binary individuals to seek a U.S. passport without being forced to identify as only “male” or “female” on the application.

Filed in the U.S. Court of Appeals for the Tenth Circuit in Colorado, the amicus brief in Zzyym v. Pompeo involves the rights of someone who, in accordance with their gender identity, sought 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. Although the X designation conforms to the standard for individuals with an unspecified or non-binary gender set by the International Civil Aviation Organization, the State Department required Zzymm to fill out either “M” or “F” on that field. When Zzyym did not do so, the Department rejected Zzyym’s application on that basis alone.

“New Jersey law recognizes the rights of non-binary individuals, and it’s past time for the federal government to do the same,” said Attorney General Grewal. “Thousands of non-binary persons across the country – including here in New Jersey under the Babs Siperstein Law – now have identification documents that appropriately fit their gender identity. There is no good reason to deny non-binary individuals passports, and that’s why we are fighting the State Department in court. My office will always stand up for LGBTQ individuals, including non-binary New Jerseyans, even when the federal government stands in the way.”

“Non-binary residents deserve to have their gender identity reflected in official documents. That’s why in February, we carried out Babs Siperstein’s legacy by affording residents that right to amend the gender on their birth certificates,” Health Commissioner Dr. Shereef Elnahal said. “The Murphy Administration is committed to equality for all residents without unnecessary barriers like those imposed by the Trump Administration in Washington.”

“Non-binary individuals are entitled to equal rights, and to live their lives with dignity and respect—that includes the right to choose the appropriate marker for gender identity purposes,” said Rachel Wainer Apter, Director of the New Jersey Division on Civil Rights. “We are proud of the work New Jersey has done in this area, and encourage the federal government to grant non-binary individuals the right to self-determination.”

In September 2018, the U.S. District Court for the District of Colorado found that the Department’s gender policy – and its refusal to include designations beyond “M” or “F” – was arbitrary and capricious and that the passport application denial was in excess of the Department’s authority. The federal government appealed the decision and it is now before the U.S. Court of Appeals for the Tenth Circuit.

Attorney General Grewal is joined on this amicus brief by the Attorneys General of eight other states, including California, Colorado, Maine, Minnesota, Nevada, Oregon, Vermont, and Washington.

The amicus brief challenges the State Department’s claim that such a change would be administratively burdensome, and that it would put the State Department “at odds” with local and state jurisdictions because those jurisdictions recognize “only two genders” in issuing driver’s licenses and other identifying credentials.

To the contrary, the brief notes, six states (including New Jersey) presently recognize a non-binary gender designation for birth certificates. New Jersey’s designation system is governed by the Babs Siperstein Law, which went into effect on February 1, 2019. The law streamlined the process for New Jersey residents to change the gender marker on their birth certificates, and added a third option for gender designation besides “M” and “F” – namely “X” for non-binary/undesignated. The State Department’s refusal to recognize non-binary gender classifications therefore harms these states’ interests.

The amicus brief adds that recognition of non-binary gender markers on identification credentials is “part of a broad national movement” that is “neither complex nor disruptive.” To date, the brief notes, “roughly 85 million people – over one-quarter of the United States population” – live in a jurisdiction that issues identification credentials containing a non-binary gender designation.


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