Zzyym v. Mullen, 18-1453

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: BACHARACH, Circuit Judge.
• Citation: 958 F.3d 1014
• Parties: Dana Alix ZZYYM, Plaintiff - Appellee, v. Michael R. POMPEO in his official capacity as the Secretary of State; Steven J. Mullen, in his official capacity as the Director of the Colorado Passport Agency for the United States Department of State, Defendants - Appellants.
• Docket Number: No. 18-1453,18-1453
• Decision Date: 12 May 2020

958 F.3d 1014

Dana Alix ZZYYM, Plaintiff - Appellee,
v.
Michael R. POMPEO in his official capacity as the Secretary of State; Steven J. Mullen, in his official capacity as the Director of the Colorado Passport Agency for the United States Department of State, Defendants - Appellants.

No. 18-1453

United States Court of Appeals, Tenth Circuit.

FILED May 12, 2020

Paul D. Castillo, Lambda Legal Defense and Education Fund, Inc., Dallas, Texas (Puneet Cheema, Lambda Legal Defense and Education Fund, Inc., Washington, DC; Emily E. Chow and Rory F. Collins, Faegre Baker Daniels LLP, Minneapolis, Minnesota; and Ann E. Prouty, Faegre Baker Daniels LLP, Denver, Colorado, with him on the briefs) on behalf of the Plaintiff-Appellee.

Jennifer B. Dickey, Deputy Associate Attorney General, United States Department of Justice, Washington, D.C. (Joseph H. Hunt, Assistant Attorney General; Jason R. Dunn, United States Attorney; Hashim M. Mooppan, Deputy Assistant Attorney General; Brinton Lucas, Counsel to the Assistant Attorney General; Mark B. Stern and Lewis S. Yelin, Attorneys, Appellate Staff, United States Department of Justice, on the briefs) for the Defendants-Appellants.

Before BACHARACH, SEYMOUR, and McHUGH, Circuit Judges.

BACHARACH, Circuit Judge.

United States citizens ordinarily need a passport to leave or reenter the country. 8 U.S.C. § 1185(b). The passport serves a dual function, proving both identity and allegiance to the United States. Haig v. Agee , 453 U.S. 280, 293, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981).

For decades, the State Department has identified applicants based on characteristics like an individual's sex. In identifying an applicant's sex, the State Department

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has taken a binary approach, considering everyone as either male or female.

This approach has thwarted Dana Zzyym's ability to get a passport. Zzyym applied for a U.S. passport, but was intersex and could not accurately identify as either male or female. Because neither option applied, Zzyym requested a passport with an "X" designation for the sex. The State Department refused and denied Zzyym's application. Zzyym sued, alleging that reliance on the binary sex policy

• exceeded the State Department's statutory authority,

• was arbitrary and capricious under the Administrative Procedure Act, and

• violated the U.S. Constitution.

The district court concluded as a matter of law that the State Department had violated the Administrative Procedure Act because

• adherence to the binary sex policy exceeded the State Department's statutory authority and

• application of the policy to Zzyym was arbitrary and capricious.

The court thus did not reach Zzyym's constitutional claims.

We conclude that the State Department acted within its authority but exercised this authority in an arbitrary and capricious manner. The State Department gave five reasons for denying Zzyym's request for a passport. Two of the reasons were supported by the administrative record, but three others weren't. Given the State Department's partial reliance on three unsupported reasons, we don't know whether the State Department would have denied Zzyym's request if limited to the two supported reasons. The district court thus should have remanded to the State Department to reconsider the policy based only on the two reasons supported by the record.

I. Dana Zzyym, an intersex person, applies for a passport.

The State Department defines an intersex individual as "someone ‘born with reproductive or sexual anatomy and/or chromosomal pattern that does not fit typical definitions of male or female.’ " Appellants' Opening Br. at 4–5 (quoting Appellants' App'x vol. 1, at 94). This definition fits Zzyym, who was born with both male and female genitalia. Given the presence of genitalia for both sexes, Zzyym's birth certificate was initially left blank for the sex designation. But Zzyym's parents decided to raise Zzyym as a male, so the original birth certificate's blank for sex was filled in as "male." The State Department has treated this birth certificate as the original.

Zzyym lived as a male until adulthood. As an adult, Zzyym explored living as a woman and obtained a driver's license identifying as female. But Zzyym grew increasingly uncomfortable living as a woman and eventually identified as a nonbinary intersex person. While identifying as intersex, Zzyym obtained an amended birth certificate identifying the sex as "UnKnown."

When applying for a passport, Zzyym understood the need for accuracy. So rather than check the box for male or female, Zzyym wrote "intersex." To support the identification as intersex, Zzyym supplied

• a letter requesting an "X" sex designation and

• a letter from a physician stating that Zzyym is intersex.

Zzyym also provided the State Department with the amended birth certificate identifying the sex as "UnKnown" and a

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Colorado driver's license identifying the sex as female.¹

II. The State Department denies Zzyym's passport application.

The State Department denied Zzyym's request to designate the sex as "X," explaining that every applicant needed to check the box for either male or female. The State Department offered Zzyym three options:

1. Zzyym could obtain a passport identifying the sex as female, consistent with the driver's license.

2. Zzyym could obtain a passport identifying the sex as male if a physician attested that Zzyym had transitioned to become a male.

3. Zzyym could withdraw the application.

Zzyym declined these options and requested reconsideration, providing two more physicians' letters stating that Zzyym is intersex. The State Department declined to reconsider and again denied Zzyym's application based on the binary consideration of everyone as either male or female.

III. Zzyym sues the State Department.

Zzyym sued and the district court ordered a remand, concluding that the State Department's denial of Zzyym's application was arbitrary and capricious. On remand, the State Department decided to retain its policy and again denied Zzyym's application for a passport with an "X" sex designation. The district court again concluded that the State Department had violated the Administrative Procedure Act, and the government appeals.

IV. The State Department acted within its statutory authority.

The district court concluded that the State Department had exceeded its statutory authority by enforcing its binary sex policy against Zzyym. The government disputes this conclusion, and Zzyym presents two arguments in rebuttal:

1. The government waived this issue by omitting it from the opening appellate brief.

2. The State Department lacked statutory authority to deny a passport application based on a refusal to check either the "male" or "female" box.

We conclude that (1) the government did not waive this issue and (2) the State Department had statutory authority to require applicants to identify their sex as male or female.

A. Standard of Review

We conduct de novo review of the district court's determination of the State Department's statutory authority. EnergySolutions, LLC v. Utah , 625 F.3d 1261, 1271 (10th Cir. 2010). If the State Department lacked statutory authority, its decision must be set aside. 5 U.S.C. § 706(2)(C).

B. The State Department did not waive this argument.

In its opening appellate brief, the government focused largely on whether the State Department had acted arbitrarily and capriciously by relying on the binary sex policy. But the government's opening appellate brief also addressed the issue of statutory authority, arguing that reversal of the characterization as arbitrary and capricious would compel us to reverse the ruling on statutory authority. The government

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reasoned that "the court's statutory-authority holding [was] entirely parasitic on its arbitrary-and-capricious ruling and therefore fail[ed] for the same reasons." Appellants' Opening Br. at 29.

Zzyym characterizes this reasoning as perfunctory, emphasizing that the government did not identify an issue involving statutory authority or address the issue elsewhere in its brief. According to Zzyym, the government's perfunctory reasoning constituted a waiver of any challenge to the State Department's statutory authority. We disagree.

In our view, the government's opening appellate brief adequately addressed the issue of statutory authority. Though only one appellate issue was identified, the government argued that the State Department had good reason to deny Zzyym's passport application. The government apparently intended that analysis to address both of the district court's rulings.

This approach was reasonable because the district court had intertwined its rulings on Zzyym's arguments. See Prieto v. Quarterman , 456 F.3d 511, 517 (5th Cir. 2006) (stating that when procedural and substantive issues were "inextricably intertwined," the appellant did not...