Filed: May 12, 2020
Latest Update: May 12, 2020
Summary: FILED United States Court of Appeals PUBLISH Tenth Circuit May 12, 2020 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _ DANA ALIX ZZYYM, Plaintiff - Appellee, v. No. 18-1453 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. _ Appeal from the United States District Court for t
Summary: FILED United States Court of Appeals PUBLISH Tenth Circuit May 12, 2020 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _ DANA ALIX ZZYYM, Plaintiff - Appellee, v. No. 18-1453 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. _ Appeal from the United States District Court for th..
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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
May 12, 2020
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
____________________________________
DANA ALIX ZZYYM,
Plaintiff - Appellee,
v. No. 18-1453
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.
____________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:15-CV-02362-RBJ)
____________________________________
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 (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 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
2
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
3
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 Colorado driver’s
license identifying the sex as female. 1
1
After applying for an intersex passport, Zzyym obtained a driver’s
license identifying the sex as “X.”
4
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
5
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
6
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 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
7
waive the procedural issue by briefing only the substantive issue). The
district court concluded that
the State Department’s reasons had been arbitrary and
capricious and
the absence of good reasons meant that the State Department
had exceeded its statutory authority.
Zzyym v. Pompeo, 341 F. Supp. 3d 1248, 1260 (D. Colo. 2018).
Both rulings rested on the State Department’s failure to justify its
reliance on the binary sex policy. See id. (“Because neither the Passport
Act nor any other law authorizes the denial of a passport application
without good reason, and adherence to a series of internal policies that do
not contemplate the existence of intersex people is not good reason, the
Department has acted in excess of its statutory jurisdiction.”). We thus
conclude that the government adequately briefed its challenge as to
statutory authority. Given this conclusion, we reject Zzyym’s allegation of
waiver.
C. The State Department had statutory authority to deny
Zzyym’s passport application based on the binary sex policy.
The Passport Act allows the Secretary of State to “grant and issue
passports, and cause passports to be granted, issued, and verified in foreign
countries . . . under such rules as the President shall designate and
prescribe for and on behalf of the United States and no other person shall
grant, issue, or verify such passports.” 22 U.S.C. § 211a. In turn, the
8
President has delegated the authority to prescribe rules to the Secretary of
State. Executive Order 11295, 31 Fed. Reg. 10,603 (Aug. 5, 1966). We
must consider the scope of statutory authority delegated to the Secretary of
State and the State Department.
The statutory language is permissive, authorizing the State
Department to deny passports for reasons not listed in the Act. Haig v.
Agee, 453 U.S. 280, 290 (1981). For example, the Act does not say whether
the State Department can deny passports to applicants unwilling to state
their birth dates or Social Security numbers. Despite the absence of an
express statutory provision, few would question the State Department’s
authority to deny passports when applicants withhold their birth dates or
Social Security numbers. See 22 C.F.R. § 51.20(b) (requiring applicants to
answer all questions pertaining to eligibility for a passport).
The Passport Act is silent about the State Department’s authority to
deny a passport to applicants who do not identify as male or female. Given
this silence, Zzyym disputes the State Department’s statutory authority to
deny a passport to an applicant unwilling to check the box for either male
or female.
The Supreme Court has addressed other challenges to the State
Department’s authority to deny passports for reasons that are not listed in
the Passport Act. In these cases, the Supreme Court has analyzed the State
Department’s statutory authority by considering past administrative
9
practice and congressional acquiescence. See, e.g., Kent v. Dulles, 357
U.S. 116, 127–30 (1958); Zemel v. Rusk,
381 U.S. 1, 7–13 (1965); Haig v.
Agee,
453 U.S. 280, 291–301 (1981).
The Supreme Court first relied on past administrative practice in
Kent v. Dulles, 357 U.S. 116 (1958). There the government insisted that
applicants disclaim membership in the Communist Party in order to qualify
for
passports. 357 U.S. at 117–20. When some applicants refused, the State
Department declined to consider their applications.
Id. at 119–20.
The Supreme Court held that the State Department had exceeded its
statutory authority. Id. at 129–30. In reaching this holding, the Court
observed that the State Department had previously denied passports based
on citizenship, allegiance to the United States, or unlawful conduct.
Id. at
127. By contrast, the State Department had inconsistently denied passports
based on belief or association.
Id. at 129–30.
This inconsistency made it
unlikely that Congress had acquiesced in denying passports based on an
applicant’s membership in the Communist Party.
Id.
But when the State Department has consistently restricted passports,
courts assume that Congress has acquiesced if it has not legislated on the
subject. For example, in Zemel v. Rusk, the Supreme Court held that the
State Department could refuse to validate passports for travel to Cuba.
381
U.S. 1, 3 (1965). The Court reasoned that the Passport Act’s language was
broad enough to permit restrictions on where the applicant could go,
10
emphasizing the State Department’s history of restricting destinations. Id.
at 8–12.
But the State Department must sometimes confront novel challenges.
Without past opportunities to enforce a policy, the State Department’s
open assertion of authority implies congressional acquiescence. Haig v.
Agee, 453 U.S. 280, 303 (1981).
The Supreme Court inferred such congressional acquiescence in Haig
v. Agee, 453 U.S. 280 (1981). There the State Department revoked the
passport of a former CIA officer who had exposed undercover CIA
operatives while travelling
abroad. 453 U.S. at 283–86. In the past, the
State Department had rarely encountered the need to revoke a passport
based on national security or foreign policy.
Id. at 303. But the
infrequency of previous challenges didn’t matter; the Court reasoned that
the State Department had “openly asserted” its power to revoke a passport
for reasons involving national security and foreign policy and Congress
had not stepped in.
Id. at 303–06 (quoting
Zemel, 381 U.S. at 9). The Court
thus concluded that Congress had implicitly approved the State
Department’s exercise of statutory power.
Id. at 306. So the Court upheld
the State Department’s revocation of the passport.
Id.
Agee’s logic fits here. Prior to Zzyym’s application, the State
Department had never denied a passport based on an applicant’s
unwillingness to identify as male or female. But under Agee, the
11
infrequency of enforcement does not strip the State Department of
statutory authority. In denying a passport to Zzyym, the State Department
followed a binary sex policy that had been in place for roughly 39 years.
Zzyym argues that the passport application itself did not alert
Congress to the State Department’s policy. But the binary sex policy was
hardly a secret, for the State Department had enacted regulations requiring
every applicant to use particular forms and to answer all of the questions
on those forms. 22 C.F.R. § 51.20(a)–(b). Congress could have said if it
wanted to allow applicants to bypass certain questions. Given the longevity
of the State Department’s policy and Congress’s apparent acquiescence, we
conclude that the binary sex policy fell within the State Department’s
statutory authority. 2
Despite Congress’s apparent acquiescence, Zzyym contends that the
State Department can deny passports only for the reasons identified in
Kent, Zemel, and Agee: citizenship, allegiance, unlawful conduct, foreign
policy, and national security. See pp. 9–11, above. We disagree. Though
2
The district court concluded that the State Department had exceeded
its authority because federal law does not permit denial of a passport
application “without good reason.” Zzyym v. Pompeo, 341 F. Supp. 3d
1248, 1260 (D. Colo. 2018). We view the quality of the reasons as
pertinent to Zzyym’s claim that the State Department’s reasoning was
arbitrary and capricious. See Part V, below. The issue of statutory
authority turns on past administrative practice and congressional
acquiescence—not the quality of the State Department’s reasoning. See
pp. 9–10, above.
12
the Supreme Court has crystallized some lawful and unlawful justifications
for denying a passport, these justifications are illustrative—not exhaustive.
The Supreme Court addressed them only because they were at issue in the
three cases. See, e.g., Kent, 357 U.S. at 127–28 (focusing only on
established reasons for denying a passport that are “material here”). The
Supreme Court didn’t suggest that these were the only reasons that could
justify denial of a passport. We thus conclude that the State Department
had statutory authority to deny a passport to Zzyym for failing to identify
as a male or female.
V. The State Department’s reliance on its binary sex policy was
arbitrary and capricious.
The resulting issue is whether this application of the binary sex
policy was arbitrary and capricious based on the existing administrative
record. See 5 U.S.C. § 706(2)(A) (arbitrary-and-capricious standard);
Copar Pumice Co. v. Tidwell, 603 F.3d 780, 791 n.3 (10th Cir. 2010)
(existing administrative record). For this inquiry, we presume that the
policy was valid and place the burden of proof on Zzyym. W. Watersheds
Project v. Bureau of Land Mgmt.,
721 F.3d 1264, 1273 (10th Cir. 2013).
Our review is “narrow,” and we are “not to substitute [our]
judgment” for the State Department’s. Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Given the
narrowness of our review, we will disturb the administrative action only if
13
the State Department relied on improper factors, disregarded an important
aspect of the problem, provided an explanation that was implausible or
inconsistent with the evidence, or failed to consider an appropriate
alternative. Id. at 43, 51.
On appeal, the government defends its reasons for requiring Zzyym
to identify as a male or female.
A. Only two of the State Department’s five reasons are
supported by the administrative record.
The State Department gave five reasons for relying on the binary sex
policy:
1. The policy ensured the accuracy and reliability of U.S.
passports.
2. The policy helped identify individuals ineligible for passports.
3. The policy helped make passport data useful for other agencies.
4. No medical consensus existed on how to determine whether
someone was intersex.
5. Creating a third designation for sex (“X”) was not feasible.
We conclude that the first, fourth, and fifth reasons lack record support,
but the second and third reasons are supported.
1. The State Department’s first reason (that the binary sex
policy ensured the accuracy and reliability of U.S.
passports) lacks support in the record.
The State Department justified the binary sex policy in part as a way
to promote accuracy and reliability, reasoning that every U.S. jurisdiction
14
had identified all citizens as either male or female. For this justification,
the State Department focused on how it determines eligibility for
passports. This determination ordinarily requires the State Department to
verify an applicant’s identity through identification documents issued by
other U.S. jurisdictions. So the State Department considered how those
jurisdictions identify characteristics such as an individual’s sex.
The State Department noted that many U.S. jurisdictions allow
amendment of identification documents, but differ on when to allow an
amendment. For example, if a male transitions to a female, different
jurisdictions may vary in
whether to allow amendment of a birth certificate to reflect the
new sex and
what evidence is required to obtain the amendment.
Given these differences, the State Department focuses only on original
identification documents. 3
We thus consider how U.S. jurisdictions have treated a citizen’s sex
in original identification documents. For this inquiry, we use May 2017 as
the applicable time frame because that is when the State Department denied
Zzyym’s request. See p. 13, above.
3
Zzyym has not challenged the State Department’s policy of relying
only on original identification documents when evaluating passport
applications.
15
In May 2017, every U.S. jurisdiction used a binary sex policy in a
citizen’s original identification documents, always listing the sex as either
male or female. 4 Given the prevalence of binary sex policies, the State
Department reasoned that listing a sex other than male or female would
hamper verification of an applicant’s identity.
Zzyym argues that requiring consistency between inaccurate
identification documents does not render them more accurate or reliable.
We agree. And for intersex individuals like Zzyym, treating every
applicant as male or female would necessarily create inaccuracies.
4
Zzyym argues that the agency failed to consider recent efforts by
some states to authorize amended documents recognizing a third sex,
characterizing these efforts as a trend toward allowing a third sex
designation. But the State Department did consider this development,
acknowledging that by 2017 a handful of jurisdictions had “issued amended
birth certificates in a third sex, and . . . a very few number of state courts
[had] issued court orders recognizing a sex change to a sex other than male
or female.” Appellants’ App’x vol. 1, at 84. Despite these developments,
the State Department continued to rely on original documents and resist
acceptance of amended documents.
Zzyym also points out that state policies have evolved since May
2017. For example, Zzyym says that
twelve states and the District of Columbia now authorize sex
designations other than “M” or “F” on identification documents
and
seven states allow a gender-neutral category on birth
certificates.
But we cannot consider this information because we are limited to the
administrative record as of May 2017. See p. 13, above.
16
The State Department acknowledges that some individuals are born
neither male nor female. Forcing these individuals to pick a gender thus
injects inaccuracy into the data. A chef might label a jar of salt a jar of
sugar, but the label does not make the salt any sweeter. Nor does requiring
intersex people to mark “male” or “female” on an application make the
passport any more accurate.
But the State Department prizes accuracy. To promote accuracy, the
State Department requires applicants to submit original birth certificates,
22 C.F.R. § 51.42, and establish identity with corroborating identification
documents, 22 C.F.R. § 51.23. If the designated sex does not match the
identification documents, the applicant must obtain medical certification
by a licensed physician. 7 FAM § 1310(a) App. M; Appellants’ App’x vol.
1, at 88.
Given these requirements, an intersex applicant like Zzyym could not
accurately complete the passport application in May 2017. If the applicant
was intersex, the original identification documents would not accurately
identify the applicant’s sex. So the State Department’s reliance on original
identification documents would prevent intersex applicants from accurately
identifying their sex.
At oral argument, the State Department conceded that applications
for intersex individuals like Zzyym would be less accurate under the binary
sex policy. The State Department thus noted that it had offered to produce
17
a passport with an “F” (matching Zzyym’s original Colorado driver’s
license) or an “M” (matching the original birth certificate). But when
asked what an applicant like Zzyym should do to ensure the accuracy of the
passport, counsel for the State Department acknowledged that (1) “it may
be difficult when one is confronted with a form with limited options that
may not track one’s best answer to a question” and (2) applicants “have to
choose what fits best, and that may not be the most accurate answer that
they would like to provide, but it is the answer that is available.” Oral Arg.
at 7:39–8:25.
In many cases, however, the “best” available answer may not
conform to the applicant’s original identity documents. States issue most
original identification documents; and when the State Department denied
Zzyym’s application, most state identification documents pigeonholed
everyone as male or female even though some people are neither. So
reliance on the original identification documents would sometimes create
inaccurate information.
Zzyym’s experience illustrates the inevitable inaccuracies of a binary
sex policy. Zzyym had two original identification documents that would
ordinarily establish the sex: The original birth certificate identified Zzyym
as male, and the driver’s license said female. With conflicting
identification documents, the State Department instructed Zzyym to either
identify as female or obtain a medical certification showing transition to
18
male. Appellants’ App’x vol. 1, at 67–68. But this instruction didn’t make
sense because Zzyym hadn’t transitioned from female to male, and
Zzyym’s original birth certificate said that Zzyym was male.
The State Department’s policy effectively allowed Zzyym to obtain a
passport by claiming to be either male or female. But the State
Department’s binary sex policy assumes that Zzyym must be one or the
other. How could Zzyym be neither male nor female and accurately
identify as either sex?
Given the State Department’s willingness to allow Zzyym to identify
as either male or female, the binary sex policy sunders the accuracy and
reliability of information on Zzyym’s passport application.
* * *
The State Department lacks record support for its asserted interest in
accuracy and reliability. The State Department mirrored how every U.S.
jurisdiction was treating gender in May 2017, but these jurisdictions
shoehorned everyone into a binary sex classification ill-suited for intersex
applicants. The State Department thus relied on information that didn’t
accurately describe intersex applicants like Zzyym.
19
2. The State Department’s second reason (that the binary sex
policy helped the State Department identify individuals
ineligible for passports) is supported by the record.
The State Department also explained that the binary sex policy
helpfully matches how other federal agencies record someone’s sex. This
explanation is supported by the record.
The State Department denies passport applications for various
reasons. See 22 C.F.R. §§ 51.60–51.62. To evaluate these applications, the
State Department must gather a broad range of information from federal,
state, and local authorities. For example, the State Department may need to
collect information from other federal agencies to decide whether an
applicant has defaulted on a federal loan (22 C.F.R. § 51.60(a)(1)), has
committed a sex offense (22 C.F.R. § 51.60(g)), or has obtained a
conviction for drug trafficking (22 C.F.R. § 51.61).
The State Department thus underscored two facts bearing on the need
for consistency in data recorded by different federal agencies:
1. “Sex is one of the primary data points used by these agencies in
recordkeeping . . . .” Appellants’ App’x vol. 1, at 85; see id. at
45–46 (“Sex is a key component of the ‘biometric identity’ that
the Department uses to verify the identity of the applicant and
distinguish individuals.”).
2. “[A]ll such agencies recognize only two sexes.” Id. at 85.
In May 2017, the State Department’s system required an applicant’s
data to match many other federal agencies. And every federal database
identified each person as either male or female. So if the State Department
20
searched for Zzyym with an “X” designation for sex, the search would
yield mismatches for the applicant’s sex. To uncover the reason for the
mismatches, an employee in the State Department would need to manually
override the “X” designation of sex.
The State Department could thus rationally insist on identifying the
applicant’s sex in a way that matched other federal databases. 5 To
minimize confusion, the State Department reasonably concluded that a
binary sex policy could enhance the ability to verify identity. 6
Of course, the State Department also searches state and local
databases in order to assess eligibility for a passport. For example, federal
5
Zzyym contends that the State Department failed to consider the
federal government’s permission for foreign individuals to enter the United
States with passports bearing an “X” designation for sex. But the State
Department could reasonably distinguish between the difficulties in
accepting a foreign passport and issuing a U.S. passport. Accepting a
foreign passport may not implicate the depth of communication with other
federal databases that is needed to ensure eligibility for a U.S. passport.
And we must defer to an agency’s “reasonable conclusions regarding
‘technical or scientific matters within the agency’s area of expertise.’”
Utah Envtl. Cong. v. Richmond, 483 F.3d 1127, 1140 (10th Cir. 2007)
(quoting Utah Envtl. Cong. v. Dale Bosworth,
443 F.3d 732, 739 (10th Cir.
2006)).
6
Zzyym argues that mismatches “may in fact aid” the State
Department because “[a]ny mismatch is flagged—whether an M/F or X/M/F
disparity—ensuring that the underlying application receives more
scrutiny.” Appellee’s Resp. Br. at 34. But Zzyym cites no authority or
evidence for this proposition. Without any authority or evidence, we
decline to speculate on the possibility that more mismatches could aid the
State Department.
21
law prohibits the issuance of passports to anyone owing more than $2,500
in back child support. 42 U.S.C. § 652(k); 22 C.F.R. § 51.60(a)(2). Child
support is governed by state law and enforced by state and local agencies.
Though some state agencies did accommodate a third sex designation in
2017, the State Department reasonably concluded that inaccuracies could
still arise when contrasting an “X” sex designation with the more common
methods of designating someone’s sex.
Zzyym points out that the State Department could obtain useable
information from other agencies despite differences in the ways that they
identified an individual’s sex. For example, if an applicant’s sex didn’t
match a federal agency’s records, the State Department could verify an
applicant’s social security number, date of birth, and name. But manually
overriding the mismatches would require additional resources.
Zzyym also points out that the State Department was apparently
willing to tolerate mismatches for transgender individuals. For these
individuals, the State Department used a process allowing an applicant to
identify a sex differing from the one on the driver’s license or birth
certificate. Zzyym questions why the State Department was willing to
accept mismatches for transgender applicants but not intersex applicants.
This argument proves that the State Department could accommodate
discrepancies—not that it had to do so. In adopting the transgender policy,
the State Department needed to evaluate all pertinent factors. Citizens to
22
Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). But we have
little information on the mix of factors contributing to the State
Department’s policy for transgender applicants. For example, nothing in
the record suggests whether the State Department considered the
possibility of mismatches with state databases as a factor weighing against
the transgender policy.
Regardless of what the pertinent factors were, we know that the State
Department was ultimately willing to tolerate some mismatches between
transgender applicants’ passport applications and the original identification
documents. But we don’t know how the State Department weighed the
inevitability of these mismatches. Given the absence of information on how
the State Department weighed this factor for transgender applicants, we
cannot speculate. So the State Department’s apparent tolerance for
mismatches among transgender applicants does not bear on the
reasonableness of this factor for intersex applicants.
Transgender applicants aside, Zzyym points out that mismatches may
emerge whenever the State Department and a particular state use different
methods to identify an individual’s sex. For example, Zzyym points to the
instruction to identify as either male or female, which may or may not
correspond to states’ underlying databases. So under either approach,
mismatches will arise.
23
But the State Department has reasonably tried to limit unnecessary
mismatches. Under arbitrary-and-capricious review, the agency need not
select a perfect solution—just a rational one. See Forest Guardians v. U.S.
Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003) (“An agency’s actions
need not be perfect; we may only set aside decisions that have no basis in
fact, and not those with which we disagree.”), quoted with approval in
Biodiversity Conservation All. v. Jiron,
762 F.3d 1036, 1074 (10th Cir.
2014). Because the State Department could rationally try to reduce
unnecessary mismatches, we conclude that the administrative record
supports the State Department’s second reason to rely on the binary sex
policy.
3. The State Department’s third reason (that the binary sex
policy helped make passport data useful for other agencies)
is supported by the record.
The State Department also reasoned that using a third sex designation
could burden other state and federal agencies when they use the State
Department’s data. Again, the State Department noted that (1) most
agencies’ systems accommodate only two sexes and (2) allowing a third
sex designation could complicate searches. These complications, the State
Department reasoned, would burden other agencies that use passport data.
24
For example, the State Department pointed to law enforcement, which
often uses passport data to identify victims and to locate criminal suspects.
Zzyym argues that the State Department’s rationale lacks record
support and relies on “sweeping assumptions about technical specifications
of third-party computer systems.” Appellee’s Resp. Br. at 34. We disagree.
The State Department could reasonably conclude that use of a third sex
designation would impede at least some other systems that classify
everyone as either male or female. We thus conclude that the
administrative record supported the State Department’s third reason to rely
on the binary sex policy.
4. The State Department’s fourth reason (that a lack of
medical consensus existed on how to identify individuals as
intersex) is unsupported by the record.
The State Department also concluded that the medical community
lacks a consensus on how to determine whether someone is intersex,
rendering an “X” designation “unreliable as a component of identity.”
Appellants’ App’x vol. 1, at 86. But this reasoning lacks support in the
administrative record and does not apply to unquestionably intersex
individuals like Zzyym.
According to the State Department, medical experts vary on whether
to base intersexuality solely on somatic characteristics, self-identification
as intersex, or both. But the State Department cites no scientific evidence
of this disagreement about the medical definition of intersexuality.
25
In defending this rationale, the State Department cites pages 86 and
87 of its appendix. This page is simply an excerpt from the State
Department’s brief in district court. In that brief, the State Department
failed to cite any evidentiary support for a disagreement in the medical
community about the meaning of intersexuality. 7
Indeed, the State Department’s appellate brief defines intersexuality
based on somatic characteristics, stating that an intersex person is
“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 (citing Appellants’ App’x vol. 1, at 94). This
definition appears consistent with the academic literature on
intersexuality. 8
7
In denying Zzyym’s request, the State Department said that “[r]eview
of recent expert declarations and medical literature confirms that there is
no [] consensus at this time as to the definition of a third sex.” Appellants’
App’x vol. 1, at 86. But the State Department did not identify or submit
any of these declarations or medical excerpts.
8
See Heino F.L. Meyer-Bahlburg, Transsexualism (“Gender Identity
Disorder”) – A CNS-Limited Form of Intersexuality?, in Hormonal and
Genetic Basis of Sexual Differentiation Disorders and Hot Topics in
Endocrinology 75, 75–77 (Maria I. New & Joe Leigh Simpson eds., 2010)
(describing intersexuality as “somatic” and distinguishing gender identity
disorder from intersexuality); I.A. Hughes et al., Consensus Statement on
Management of Intersex Disorders, 91 Archives Disease Childhood 554,
554–56 (2006) (surveying fifty international experts in the field of intersex
disorders and stating that criteria suggesting a disorder of sexual
development include genital ambiguity or variations, a family history of
disorders of sexual development, and chromosomal variations); John
26
In district court, the State Department pointed out that three
physicians had given three different reasons for classifying Zzyym as
intersex:
1. Zzyym “was born with ambiguous genitalia.” Appellants’
App’x vol. 1, at 59.
2. Zzyym “has had the appropriate clinical treatment for transition
to intersex.”
Id. at 71.
3. Zzyym “was born intersex,” “identifies as intersex,” and “has
had surgery for transition to female genitalia.”
Id. at 73.
These differences, the State Department argued, illustrated the lack of
medical consensus about the meaning of intersexuality.
The State Department’s argument in district court had overlooked the
context for these differences. The first physician had classified Zzyym as
intersex based solely on the basis of somatic characteristics, referring to
McLean Morris, Intersexuality, 163 J. Am. Med. Ass’n 538, 540 (1957)
(stating that the term “intersexual” “should be restricted to those with
congenital anatomic variations and not used when referring to those
showing the endocrine phenomena of post-natal virilization or
feminization”); U.S. National Library of Medicine, Intersex, MedlinePlus,
https://medlineplus.gov/ency/article/001669.htm (updated Aug. 7, 2019)
(“Intersex is a group of conditions where there is a discrepancy between
the external genitals and the internal genitals (the testes and ovaries).”);
see also Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 894,
898 (2019) (stating that intersex individuals are “people who are born with
any of a range of sex characteristics that may not fit a doctor’s notions of
binary ‘male’ or ‘female’ bodies” (quoting Intersex Definitions, Interact,
https://interactadvocates.org/intersex-definitions/)); Aileen Kennedy, Fixed
at Birth: Medical and Legal Erasures of Intersex Variations, 39 Univ. New
S. Wales L.J. 813, 813 (2016) (“The term ‘intersex’ describes variations in
sex development whereby a person’s biological sex traits are not
exclusively male or female.” (footnote omitted)).
27
the presence of ambiguous genitalia. The State Department rejected this
explanation and pointed Zzyym to the policy for transgender applicants,
which required a physician’s statement attesting to “appropriate clinical
treatment for transition to the new gender.” Id. at 68. In response, Zzyym
supplied the second letter, which complied with the State Department’s
instruction to verify transition to the new gender.
Id. at 71.
The third letter
simply confirmed that Zzyym was intersex and identified as intersex.
Id. at
73.
None of the letters purported to define intersexuality or discussed how
the medical community defines intersexuality.
Even if the medical community disagreed on whether some
individuals are intersex, the State Department would need to explain why
the lack of a consensus would justify denying Zzyym’s application. See
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)
(stating that administrative decisions must rationally connect the factual
findings to the decision being made).
The State Department didn’t provide such an explanation, assuming
instead that disagreement about whether some applicants were intersex
would prevent classification of anyone as intersex. Why? The State
Department has never questioned whether Zzyym is intersex. Given
Zzyym’s undebatable intersexuality, the State Department failed to explain
why a lack of consensus about other individuals would justify forcing
intersex individuals like Zzyym to inaccurately identify themselves as male
28
or female. Without such an explanation, we conclude that the State
Department lacked record support for its fourth reason to rely on a binary
sex classification. 9
5. The State Department’s fifth reason (that adding a third sex
designation (“X”) would be infeasible) lacks support in the
record.
Finally, the State Department reasoned that a third sex designation
would be infeasible because of the required time and expense. But the
9
Zzyym also argues that the State Department could have adopted the
conclusions of the World Professional Association for Transgender Health
(WPATH). After all, WPATH’s conclusions had spurred the State
Department to revise its policy for transgender passport applications.
WPATH’s Standards of Care acknowledge intersexuality and suggest
that countries offer a third sex option. Given these standards, Zzyym
argues that the State Department should have (1) adhered to the WPATH
Standards of Care or (2) explained its departure from those standards. See
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (holding
that an agency must show an awareness that it is changing its policy and
explain why).
In our view, the State Department was not required to use the
WPATH standards for intersex individuals despite using these standards
for transgender applicants. WPATH is a private nonprofit health
organization that makes recommendations, not a public entity creating
international standards for passports. And the State Department’s Foreign
Affairs Manual has not established WPATH standards as official
government standards or required the government to defer to WPATH
standards in future policymaking. The Foreign Affairs Manual states only
that the government chose to use the WPATH standards for individuals
transitioning from one sex to another. Adopting WPATH’s recommendation
for transgender individuals does not require adoption of the
recommendation for intersex individuals.
29
State Department did not estimate the additional time or expense. The State
Department said only that it anticipated “considerable” challenges to
alter various systems,
update systems within the Bureau of Consular Affairs,
update internal State Department systems, and
update systems within other federal agencies that rely on
passport data.
Appellants’ App’x vol. 1, at 87.
After the district court granted judgment to Zzyym, the State
Department moved to stay the court’s order. With this motion, the State
Department attached a declaration quantifying the time and expense to
alter the passport system. Appellants’ App’x vol. 3, at 229. The declarant
noted that standard U.S. passports are electronic and contain
chips with a secure digitized image and biographic data,
described many information technology systems that would
require modification, and
estimated that changing existing software systems would take
24 months and cost $11 million.
Id. at 225–26. We decline to consider these estimates because “review of
agency action ‘generally focuses on the administrative record in existence
at the time of the agency’s decision.’” Copar Pumice Co. v. Tidwell, 603
30
F.3d 780, 791 n.3 (10th Cir. 2010) (quoting Forest Guardians v. U.S.
Forest Serv.,
579 F.3d 1114, 1131 (10th Cir. 2009)); see p. 13, above. 10
To justify the lack of an estimate, the State Department cites
Hillsdale Environmental Loss Prevention, Inc. v. U.S. Army Corps of
Engineers, 702 F.3d 1156 (10th Cir. 2012). That opinion does not apply. In
Hillsdale, we held that the Army Corps had not needed to quantify the
effects of granting a permit on certain air emissions because those
emissions involved only a small fraction of the anticipated
impact. 702
F.3d at 1175–76. Here the government’s argument is different—that a
change would obviously increase cost.
To assess the government’s allegation of an obvious increase in cost,
we must engage in a searching, careful inquiry. City of Colorado Springs v.
Solis, 589 F.3d 1121, 1131 (10th Cir. 2009). In doing so, we cannot accept
conclusory statements in lieu of a meaningful explanation. See Zen
10
The State Department also submitted a second declaration that
discussed consideration of a “one-off” passport. Appellants’ App’x vol. 3,
at 227. This declarant acknowledged the possibility of incorporating “‘one-
time’ modifications to certain systems to change the sex marker in the
issuance system’s database, to an ‘X.’” Id. Despite this possibility, the
State Department ultimately decided not to produce a one-off passport
because it would undermine the validity of U.S. passports and compromise
national security and foreign policy objectives.
Id. But the administrative
record contains no mention of concerns involving national security or
foreign policy, so we decline to consider this argument.
31
Magnets, LLC v. Consumer Prod. Safety Comm’n, 841 F.3d 1141, 1150
(10th Cir. 2016).
The expense is not obvious. Indeed, nine states (California,
Colorado, Maine, Minnesota, Nevada, New Jersey, Oregon, Vermont, and
Washington) insist that “adding non-binary gender designation in accord
with national and international standards has required negligible
administrative effort—the kind that accompanies routine changes to
government documents.” Br. of Amici Curiae States at 8. One of these
states (Colorado) represents that it incurred no cost in adopting a third sex
designation. Id. Given the conflicting information and the absence of any
cost evidence in the administrative record, we do not regard the additional
expense as obvious.
In the absence of any meaningful explanation, the State Department
lacks record support for its reliance on additional time and expense.
B. The State Department did not fail to consider alternatives.
Zzyym insists that the State Department had to consider the
alternative of a third sex designation before deviating from international
standards. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 51 (1983). But the State Department did
consider those standards, and reliance on the binary sex policy conformed
to those standards.
32
The International Civil Aviation Organization (ICAO) sets standards
to ensure that every country’s passports are machine-readable. The State
Department followed that policy, making every U.S. passport machine-
readable.
In recognizing gender changes and intersex individuals, the ICAO
noted that some countries might issue passports with an “unspecified”
designation, using an “X” printed letter and a “<” machine-readable
character. In explaining its decision to adhere to the binary sex policy, the
State Department attached a document entitled “Use of a Third Sex Marker
by Contracting States as Permitted by ICAO.” Appellee’s Supp. App’x at
56. The attachment of this document showed that the State Department had
recognized the ICAO change.
The binary sex policy conforms to the ICAO standard. The ICAO
allowed use of a third sex designation but did not require it. Appellants’
App’x vol. 3, at 220 (“Since 1999, ICAO standards have allowed, but do
not require, countries to permit a third sex designation: ‘unspecified.’”).
The State Department simply decided not to use the ICAO’s option, 11
11
Only a few countries use the ICAO’s “X/<” option even though it has
been standardized for roughly 20 years. See Appellants’ App’x vol. 3, at
220 (“Although several countries have begun to offer a third option in their
passports, most countries have not.”); Appellee’s Supp. App’x at 57
(listing Australia, Bangladesh, Denmark, India, Malta, Nepal, and New
Zealand as the only countries issuing passports in 2017 with a third sex
designation).
33
reasoning that it would not have matched how any U.S. jurisdiction was
treating the designation of sex in original identification documents. The
State Department thus considered the alternative of using a third sex
designation.
VI. Given the existence of two reasons that are supported and three
others that are unsupported, the State Department must
reconsider its denial of Zzyym’s application.
We have concluded that (1) the State Department’s first, fourth, and
fifth reasons are unsupported and (2) the second and third reasons are
supported. We have no way of knowing whether the State Department
would still have relied on the binary sex policy if limited to the second and
third reasons.
When an administrative decision rests on multiple grounds—some
supported and some not—we must determine what the agency would have
done had it recognized its errors. When an agency has indicated that its
reasons were independent and one of the reasons was flawed, we have
upheld the agency action. Am. Fed’n of Gov’t Emps. AFL-CIO, Local 2263
v. Fed. Labor Relations Auth., 454 F.3d 1101, 1107 (10th Cir. 2006). But
we have never encountered a situation where we cannot tell whether the
agency would have taken the same action if it had known that some
justifications were unsupported.
Two circuits, the D.C. Circuit and the Fifth Circuit, have considered
this issue. The D.C. Circuit has held that when an agency relies on
34
multiple grounds and some of the reasons are unsupported, the court can
ordinarily uphold the administrative decision only if the agency clearly
would have reached the same decision if limited to the supported reasons.
NLRB v. CNN Am., Inc., 865 F.3d 740, 756 (D.C. Cir. 2017); Bally’s Park
Place, Inc. v. NLRB,
646 F.3d 929, 939 (D.C. Cir. 2011); Casino Airlines,
Inc. v. Nat’l Transp. Safety Bd.,
439 F.3d 715, 717 (D.C. Cir. 2006). For
this holding, the D.C. Circuit has reasoned that “[a]rbitrary and capricious
review strictly prohibits us from upholding agency action based only on
our best guess as to what reasoning truly motivated it.” Williams Gas
Processing-Gulf Coast Co. v. FERC,
475 F.3d 319, 328–29 (D.C. Cir.
2006). So when the court cannot tell whether an agency’s surviving
rationale would have led to the same decision, the D.C. Circuit has
remanded to the agency. See, e.g., Consol. Edison Co. of New York v.
FERC,
823 F.2d 630, 641 (D.C. Cir. 1987).
The Fifth Circuit took a different approach in Texas Tech Physicians
Ass’ns v. DHS, 917 F.3d 837 (5th Cir. 2019). There the court said in a
footnote:
Typically, when an agency reaches a decision based on
erroneous reasoning, the Chenery doctrine prohibits a reviewing
court from upholding that decision for an alternative reason. But
when an agency gives multiple reasons, we may uphold its
decision based on any one of those reasons. Salt River Project
Agr. Imp. & Power Dist. v. United States, 762 F.2d 1053, 1060
n.8 (D.C. Cir. 1985).
35
Id. at 844 n.4 (citation omitted). In stating that the court could uphold the
decision for any one of the agency’s stated reasons, the court relied solely
on a D.C. Circuit opinion: Salt River Project Agricultural Improvement &
Power District v. United States,
762 F.2d 1053 (D.C. Cir. 1985). See Texas
Tech
Physicians, 917 F.3d at 844 n.4.
Salt River follows the D.C. Circuit’s ordinary approach. Under this
approach, the D.C. Circuit has ordinarily required remand when an agency
gives multiple reasons for a decision and one or more of the reasons are
invalid. See pp. 34–35, above. But the D.C. Circuit also recognizes that
agencies sometimes make clear that they would have reached the same
decision even without the invalid reasons. Salt River, 762 F.2d at 1060 n.8.
In Salt River, the D.C. Circuit confronted this situation when an
agency had found that a railroad lacked market dominance after
considering four types of competition: (1) intramodal, (2) intermodal, (3)
product, and (4) geographic. Id. at 1059. The D.C. Circuit upheld the
findings on product and geographic competition and invalidated the
findings on intramodal and intermodal competition.
Id. at 1059–65. The
court noted that invalidation of some of the agency’s reasons would
ordinarily require remand because the court cannot “presume that the
[agency] would have made the decision on other, valid grounds.”
Id. at
1060 n.8 (quoting Am. Pub. Transit Ass’n v. Lewis,
655 F.2d 1272, 1278
(D.C. Cir. 1981)). But the court decided that it could uphold the agency’s
36
ultimate result, reasoning that the administrative findings clearly showed
that the agency would have “conclude[d] that [the railroad] lack[ed] market
dominance based on its findings on product and geographic competition.”
Id. 12
We have not yet considered the need to remand when an agency
gives multiple reasons, some supported and others unsupported,
and
doesn’t indicate whether the agency would have reached the
same result without relying on the unsupported reasons.
But both the Supreme Court and our court have addressed analogous issues.
In doing so, both courts have taken an approach resembling the D.C.
Circuit’s. For example, we’ve reversed and remanded when a district court
erroneously submits a legal question to the jury and it’s uncertain whether
12
One of the panel members explained the importance of clarity in the
administrative findings:
I join [the majority] opinion, and write separately only to
underscore my view that in this case we go to the absolute limits
of our ability to uphold an agency’s result, despite error in its
subsidiary findings. Normally, where fully one-half the factors
relied upon by the agency rest on erroneous findings and the
agency has not stated that its correct findings would, considered
alone, have led to the same result, remand is unquestionably
required. Only the weakness of the underlying evidence of
market dominance in this case, as ably discussed [in the majority
opinion], leads me to agree that the agency would indeed have
found no market dominance had it correctly analyzed the facts.
762 F.3d at 1065 (Wald, J., concurring).
37
the jury relied on an improper view of the law. E.g., Dillard & Sons
Constr., Inc. v. Burnup & Sims Comtec, Inc., 51 F.3d 910, 916–17 (10th
Cir. 1995). The Supreme Court has done the same when a valid and invalid
theory were submitted to the jury and the jury returned a general verdict,
creating uncertainty on whether the jury relied on the invalid theory. E.g.,
Yates v. United States,
354 U.S. 298, 311–12 (1957), overruled on other
grounds by Burks v. United States,
437 U.S. 1 (1978); Williams v. North
Carolina,
317 U.S. 287, 291–304 (1942); Stromberg v. California,
283
U.S. 359, 367–70 (1931). Requiring reversal in these circumstances, the
Supreme Court and our court have reasoned that a general verdict cannot
stand when the court must speculate on whether the factfinder would have
reached the same determination without an error.
Yates, 354 U.S. at 312;
Williams, 317 U.S. at 292;
Stromberg, 283 U.S. at 368; United States v.
Samora, No. 19-4070,
954 F.3d 1286, slip op. at 13 (10th Cir. Apr. 8,
2020); Dillard &
Sons, 51 F.3d at 916; United States v. Dota,
482 F.2d
1005, 1006 (10th Cir. 1973).
The same reasoning applies when we review administrative decisions.
Here too we lack the power to “guess at the theory underlying the agency’s
action.” SEC v. Chenery Corp., 332 U.S. 194, 197 (1947). If we can’t
determine whether the agency necessarily relied on deficient reasons, it
would make little sense to uphold the agency’s action. In these cases,
remand is appropriate “since proceeding on the right path may require or at
38
least permit the agency to make qualifications and exceptions that the
wrong one would not.” Henry J. Friendly, Chenery Revisited: Reflections
on Reversal and Remand of Administrative Orders, 1969 Duke L.J. 199,
223.
But a court can sometimes discern from the record whether the
agency would have reached the same decision without relying on the
unsupported reasons. See, e.g., Casino Airlines, Inc. v. Nat’l Transp.
Safety Bd., 439 F.3d 715, 718 (D.C. Cir. 2006) (denying a petition for
review because the agency’s decision shows that there is no reasonable
dispute that the agency relied on an independent, valid reason rather than
the invalid reason); see also pp. 36–37, above (discussing Salt River
Project Agric. Improvement & Power Dist. v. United States,
762 F.2d 1053
(D.C. Cir. 1985)). For example, we can uphold administrative action when
an agency gives two independent reasons and only one of them is valid.
Am. Fed’n of Gov’t Emps. AFL-CIO, Local 2263 v. Fed. Labor Relations
Auth.,
454 F.3d 1101, 1105–07 (10th Cir. 2006); accord Doe v. McAleenan,
929 F.3d 478, 485 (7th Cir. 2019) (“[B]ecause [the agency’s] determination
was based on two independent and alternative grounds, we would have to
find error in both determinations in order to grant relief to [the
petitioner].”).
Other administrative determinations are harder to parse. For example,
in Consolidated Edison Co. of New York v. FERC, the D.C. Circuit
39
remanded after rejecting one of the agency’s justifications. 823 F.2d 630,
641 (D.C. Cir. 1987). The court emphasized that the agency’s error had not
been “some minor misstatement of law or fact that [could] be passed over
as an unfortunate lapse.”
Id. The error had reflected the agency’s
“pervasive frame of mind . . . about a crucial problem,” making it difficult
to determine whether the agency would have made the same decision
without the error.
Id. at 641–42.
This case presents the same difficulty. The State Department never
said
whether the State Department’s five reasons were independent
or
what the State Department would have decided if it had not
considered the inevitability of inaccuracies, surmised a lack of
medical consensus, and assumed the infeasibility of a third sex
designation.
It certainly appears that concern for accuracy was key to the State
Department’s decision. Congress has criminalized false information in a
passport application, 18 U.S.C. § 1542, and the State Department
separately requires applicants to truthfully answer every question on the
application. 22 C.F.R. § 51.20(b). In the face of a criminal penalty and
regulatory requirement, we cannot simply assume that the State Department
would have relied on the binary sex policy even after learning that it would
create inaccuracies in passports.
40
These inaccuracies are inevitable because some people, like Zzyym,
are indisputably intersex. But the State Department has not acknowledged
the inherent inaccuracies that arise when applying the binary sex policy to
these individuals.
Without this acknowledgment or an explanation for forcing
indisputably intersex applicants to apply as either male or female, the State
Department undermined the accuracy of Zzyym’s identifying information
and assumed without any evidence that an intersex designation would be
too costly and lack a medical consensus.
At the same time, we differ with the district court as to the
disposition. The district court concluded that the State Department lacked
any supportable reasons to rely on the binary sex policy. We disagree. In
our view, the State Department reasonably concluded that its policy
matched how most jurisdictions identified an individual’s sex, facilitating
the State Department’s assessment of eligibility for passports and other
agencies’ use of passport data. We thus
vacate the district court’s entry of judgment for Zzyym and the
court’s issuance of a permanent injunction against enforcement
of the binary sex policy as to Zzyym and
remand with instructions to vacate the State Department’s
decision and reconsider Zzyym’s application for an intersex
passport. 13
13
We express no opinion on whether the State Department’s second and
third reasons—in themselves—would justify the State Department’s
41
decision to require Zzyym to check either the male or female box on the
application. The ultimate evaluation would require assessment of a
different set of findings. Those findings would necessarily be based on the
administrative record in existence when the State Department reconsiders
its decision. See n.4, above.
